About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 96
|
|
Serakala v National Bargaining Council for the Road Freight, Logistics Industry (NBCRFLI) and Others (JR875/15) [2019] ZALCJHB 96 (14 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
No: JR875/15
In
the matter between:
THABO
SERAKALA
Applicant
and
NATIONAL
BARGAINING COUNCIL
FOR
THE ROAD FREIGHT, LOGITSICS INDUSTRY
(“NBCRFLI”)
First Respondent
COMMISSIONER
SHAAM FRIEDMAN
Second Respondent
DHL
SUPPLY CHAIN
Third Respondent
Heard:
11 January 2019
1.
Delivered:
14 May 2019
Summary:
Review application -
CCMA
arbitration proceedings – review of proceedings– test
for review – s 145 of LRA 1995 – arbitrator failing
to
follow applicable provisions of Code of Good Practice – failure
to allow applicant – a lay person an opportunity
to ask all
questions – as such committing material error of law –
award reviewable-reinstatement-backpay.
JUDGMENT
MTHALANE.
AJ
Introduction
[1]
The applicant approached this Court seeking an order that the award
issued
by the second respondent (“the Commissioner”),
under the auspices of the first respondent (“the NBCRFLI”)
and under case number GPRFBC 32746, be reviewed and set aside and
that the matter be remitted to the NBCRFLI for a hearing
de novo
before a commissioner other than the second respondent.
[2]
This Court
has been approached to determine whether the conclusion of the
Commissioner is based on the facts and whether he reached
a fair and
equitable decision. The only time this Court will interfere with an
award is when it is one that could not have been
reasonably made
considering the evidence properly presented before the arbitrator.
[1]
This Court in deciding this matter must be guided by the six pillar
requirements.
[2]
Background
[3]
The applicant was employed as a Reach Truck Driver earning a monthly
salary
of R 6 698.00. His duties involved moving pallets of stock
between locations using a reach truck. He was dismissed on 23 October
2014 for reasons related to incapacity due to ill health. It appears
that between December 2013 and August 2014, the applicant
was
involved in four incidents whilst performing his duties at work.
[4]
In February 2014, the applicant, on his own accord, consulted an
Optometrist,
Osmans Optical, who diagnosed the applicant with
“allergic conjunctivitis”, an eye inflammation caused by
an allergic
reaction.
[5]
On 24 February 2014, the applicant, on the third respondent’s
instruction,
visited the Travel Clinic and consulted the company
doctor, Dr Gerber, for a further eye examination. It appears
that the
applicant informed Dr Gerber that his eye problem was as a
result of Handy Andy entering his eye. When transporting a pallet of
Handy Andy, a bottle had dislodged from the pallet, fallen, broken
and sprayed into his face and eyes.
[6]
Following the examination, Dr Gerber issued a report addressed to the
third respondent wherein he recorded his findings. Dr Gerber recorded
that the applicant had poor vision on his left eye and that
the eye
was red and painful. Dr Gerber further recorded as follows:
·
“Patient needs assessment at Ophthalmologist for treatment of
his
painful red eye. The Ophthalmologist needs to give us a short
report on the diagnosis, treatment plan, and whether the condition
is
related to the Handy Andy in his eye more than a month ago.
·
The employer needs to make a decision to fill in the Employers report
and
take him to a Private Ophthalmologist as per the DHL IOD policy,
or if this incident was investigated and found not to be an IPD,
he
needs to take his referral letter to OR Tambo Hospital Eye Clinic and
weekday early morning.
·
The employer needs to compare his vision to his previous medical done
to
assess whether it has deteriorated,
·
He is only fit for general work not on heights until his vision is
corrected
to a minimum of 20/30 each eye best correction. Restricted
from height work and any driving of any moving vehicle.”
[7]
It is not clear from the record, but it appears that sometime between
February and March 2014, the applicant was issued with prescription
glasses by Osmans Optical. He was thereafter allowed to continue
with
his duties as a driver.
[8]
On 11 April 2014, the applicant was involved in an incident whilst
driving
a reach truck. He tried to apply the brakes, but the machine
did not stop and eventually crashed against the barrier of the front
door and damaged the door. He reported this incident.
[9]
On 21 August 2014, the applicant dropped a pallet whilst attempting
to
lift the pallet using the reach truck. The applicant did not
suffer any injuries and there was no stock damage. The applicant
reported
this incident and an incident report was completed. The
applicant attributed the incident to poor eye sight.
[10]
On 29 August 2014, a similar incident happened. This time, some stock
was damaged. The
applicant again attributed this incident to poor eye
sight.
[11]
On
September 2014, the third respondent convened what it calls an
“incapacity hearing” to “investigate”
the
extent of the applicant’s incapacity. It appears from the
written record of the discussion that took place during the
hearing
that the third respondent had enquired whether the applicant had been
to the OR Tambo Hospital Eye Clinic (“the Eye
Clinic”) as
recommended by Dr Gerber. The applicant advised the third respondent
that he had attended the Eye Clinic but
was not furnished with a
report. The applicant was instructed to “
go
to his doctor for a detailed medical report and not to drive
…”
[3]
.
[12]
It appears that around the same time, the third respondent also
requested a report from
Osmans Optical but was advised on 15
September 2014 that the applicant had instructed Osmans Optical not
to release his medical
records.
[13]
On 1
October 2014, on the third respondent’s instructions, the
applicant consulted with Spec Savers who compiled a report
to the
effect that the applicant was suspected to have glaucoma and
recommended that he consults with an Ophthalmologist as soon
as
possible for further evaluation. This report was submitted to the
third respondent
[4]
.
[14]
A further “incapacity enquiry” was convened on 23 October
2014 where after
the applicant’s services were terminated for
reasons related to “incapacity”. On 28 October 2014, the
applicant
appealed his dismissal.
[15]
On 31 October 2014 and prior to the appeal hearing, the applicant
consulted Dr Rahman,
an Ophthalmologist, at Lakeview Hospital who
recommended that the applicant be assisted with new spectacles. It
appears from the
outcome of the appeal proceedings dated 3 November
2014 that the chairperson of the appeal, Mr Andre Niemann (“Mr
Niemann”)
had received and read Dr Rahman’s report but
nevertheless upheld the applicant’s dismissal.
The
arbitration proceedings
[16]
An alleged unfair dismissal dispute was referred by the applicant to
the NBCRFLI and after
unsuccessful conciliation, the matter was set
down for arbitration before the Commissioner. The third
respondent was represented
by Miss N Yakeni (“Miss Yakeni”)
and the applicant represented himself.
[17]
The third
respondent’s contention at the arbitration proceedings was
inter
alia
,
that the applicant had not, despite several requests, provided a
medical report from the Eye Clinic, detailing the nature of his
ailment; and that there were no alternative positions available
[5]
.
[18]
The applicant’s main claim was that his dismissal was unfair
because (a) the third
respondent had not followed the recommendations
of Dr Gerber; and (b) he had as early as February 2014 attended to
the Eye Clinic
as instructed to do [he had advised the third
respondent of his attendance and they had at no time requested a
report until August
2014].
[19]
Evidence on
behalf of the third respondent was led by Ms Yvone Frazer (“Ms
Frazer”), the Operations Manager. She testified
that the
applicant was involved in four incidents between December 2013 and
September 2014
[6]
. The applicant
suffered from an eye problem, his services were terminated because he
refused to see an eye specialist and that
the third respondent has
health and safety rules on site. She further testified that
notwithstanding Dr Gerber’s report,
the applicant did not
attend at the Eye Clinic. The applicant did not provide any proof
during the enquiry that he had seen an
eye specialist. The third
respondent had looked for available vacancies for the applicant but
there were none available
[7]
.
[20]
When asked
by Ms Yakeni if the applicant had lodged an appeal following his
dismissal, Ms Frazer confirmed that the applicant did.
Ms Frazer was
thereafter asked whether the applicant had submitted proof at the
appeal hearing that he had seen an eye specialist
as directed and Ms
Frazer responded,
“
No
not at all.”
[8]
[21]
Under cross
examination, the applicant put to Ms Frazer that had the third
respondent followed Dr Gerber’s recommendations,
the incidents
in April and August 2014 would not have happened and her response was
that the applicant resumed his duties as a
driver because “
he
got glasses
”
[9]
.
[22]
She denied
that the applicant’s eye problem was caused as result of the
Handy Andy spillage in his eye as there was no record
that the
applicant reported such an incident
[10]
.
[23]
However,
during her closing argument, Ms Yakeni, conceded that after the Handy
Andy incident was brought to the third respondent’s
attention,
the applicant was referred to the Travel Clinic where after Dr Gerber
diagnosed him with an eye problem and referred
him to the OR Tambo
Eye Clinic
[11]
.
[24]
Ms Yakeni
furthermore conceded that the applicant presented the third
respondent with “a slip” which indicated that
the
applicant had attended to the Eye Clinic as recommended
[12]
.
[25]
Ms Yakeni
further submitted that the incapacity enquiry was to explore the
possibility of “
going
through the disability process
”
and had the applicant cooperated, the third respondent would have
applied for a disability benefit for the applicant
[13]
.
[26]
The
applicant’s testimony was that sometime in December 2013 or
January 2014, whilst packing pallets of Handy Andy at work,
a bottle
dislodged and fell on him. The Handy Andy sprayed in his eyes. He
reported the incident to his supervisor and thereafter
consulted with
his private doctor. He submitted a sicknote to the third respondent.
On 24 February 2014, he went to the Travel
Clinic where he was
examined by Dr Gerber who, amongst others, recommended that he
attends to the Eye Clinic for an examination
by a specialist. On 25
February 2014, he went to the Eye Clinic. He had not asked the clinic
for his test results because the third
respondent had not asked him
to bring back the results. That was the end of the matter. The third
respondent did not raise the
issue again until 9 August 2014,
approximately 6 months later
[14]
.
[27]
On 9 August
2014, the third respondent asked the applicant for his eye test
results from the Eye Clinic. He went to the Eye Clinic
but was not
provided with a report. The reason for this is that, the results
could be different as the alleged incident occurred
a long time ago
and as such, the Eye Clinic recommended that the results from the
Travel Clinic be used. He told the third respondent
that the doctor
would not give him his results for the reasons advanced above and
that it should therefore use the results from
the Travel Clinic.
Accordingly, the third respondent referred him to another company
doctor, Spec Savers, who recommended that
he sees an Ophthalmologist.
As the third respondent was not going to pay the Ophthalmologist, he
waited until 25 October 2014,
being his pay day and consulted with
the doctor on 31 October 2014. The applicant confirmed that he
was issued with prescription
glasses by Dr Osman but could not recall
the date in which the glasses were issued to him
[15]
.
The
award
[28]
The Commissioner found that the applicant had been uncooperative and
obstructive. There
is no record of the incident of the spilling of
Handy Andy. There was also no record of the applicant consulting an
in-house sister.
The applicant, at a stage in his treatment,
requested that his doctor not furnish the third respondent with his
medical report.
[29]
He found further that the third respondent had attempted to assist
the applicant in trying
to obtain good medical care however the
applicant was unable to furnish the third respondent with a report
regarding the extent
of his eye sight problem.
[30]
The Commissioner thereafter held that due to the nature of the third
respondent’s
business, the applicant could not be accommodated
in the absence of this information and that there was clearly a lack
of cooperation
from the applicant. The Commissioner thus found that
the third respondent had no alternative but to terminate the services
of the
applicant.
The
grounds for review and submissions
[31]
Following the hearing of this matter, the applicant, in amplification
of its grounds for
review, delivered supplementary heads of argument.
The applicant attacked the award on a variety of grounds, principle
amongst
which were that:
31.1
The
Commissioner asserted that the applicant could not ask any further
questions during his cross examination
[16]
;
31.2
There is nothing to suggest that the applicant was uncooperative and
obstructive. It was
impractical for the applicant to obtain a
medical report 8 months after the incident, when no such request had
been communicated
to him earlier. The only formal request directed to
the applicant was for him to see a specialist at the Eye Clinic,
which he did
on 25 February 2014 – the request for a report was
only formally put to the applicant in September 2014.
[32]
The third respondent opposed the application on the ground that it
had requested the reports
from the applicant on several occasions and
more than once requested him to see a specialist. The applicant only
went to see the
specialist on 31 October 2014, a few days after his
dismissal and the report from the eye specialist was only presented
at arbitration.
The third respondent submitted that it would
therefore be unfair for it to have relied on a report which at the
time of the applicant’s
dismissal did not exist. Accordingly,
the award is one which any reasonable decision maker would have
reached.
[33]
Further submissions in this regard will be considered within the
context of the evaluation
as below.
The
review test and evaluation
[34]
The
test on review is
whether
the decision reached by the Commissioner is one that a reasonable
decision maker could not reach in relation to the evidence
before him
or her
[17]
. The Supreme Court
of Appeal, in
Herholdt
v Nedbank (COSATU as amicus curiae
)
[18]
summarised the review test as follows:
“……
the
position regarding the review of CCMA awards is this: A review of a
CCMA award is permissible if the defect in the proceedings
falls
within one of the grounds in s 145(2)(a) of the LRA. For a
defect in the conduct of the proceedings to amount to
a gross
irregularity as contemplated by s 145(2)(a)(ii), the arbitrator
must have misconceived the nature of the inquiry or
arrived at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach
on all the material that
was before the arbitrator.
[19]
”
[35]
In a
further explication of the review test, t
he
Labour Appeal Court in
Goldfields
Mining South Africa (Pty) Limited (Kloof Gold Mine v CCMA &
Others)
[20]
held that in assessing whether the result of an award is
unreasonable, the reviewing court should not adopt a piecemeal
approach,
and must further enquire whether:
“……
..
(i) In terms of his or her duty to deal with the matter with the
minimum of legal formalities, did the process that the arbitrator
employed give the parties a full opportunity to have their say in
respect of the dispute? (ii) Did the arbitrator identify the
dispute
he or she was required to arbitrate (This may in certain cases only
become clear after both parties have led their evidence)?
(iii) Did
the arbitrator understand the nature of the dispute he or she was
required to arbitrate? (iv) Did he or she deal with
the substantial
merits of the dispute? (v) Is the arbitrator’s decision one
that another decision-maker could reasonably
have arrived at based on
the evidence?”
[36]
In this
case, the applicant was dismissed for incapacity related to
ill-health, it can be accepted that the starting point for the
Commissioner was to have regard to, and consider the provisions of
Items 10-11 of the Code of Good Practice: Dismissal, which are
binding on all commissioners as dictated by the provisions of section
188 (2) of the Labour Relations Act
[21]
(LRA).
[37]
The provisions of Item 10 and 11 as contained in Schedule 8 reads as
follows:
“
10
Incapacity: Ill health or injury
(1)
Incapacity on the grounds of ill health or
injury may be temporary or permanent. If an employee is temporarily
unable to work in
these circumstances, the employer should
investigate the extent of the incapacity or the injury. If the
employee is likely to be
absent for a time that is unreasonably long
in the circumstances, the employer should investigate all the
possible alternatives
short of dismissal. When alternatives are
considered, relevant factors might include the nature of the job, the
period of absence,
the seriousness of the illness or injury and the
possibility of securing a temporary replacement for the ill or
injured employee.
In cases of permanent incapacity, the employer
should ascertain the possibility of securing alternative employment,
or adapting
the duties or work circumstances of the employee to
accommodate the employee’s disability.
(2)
In the process of the investigation
referred to in subsection (1) the employee should be allowed to state
a case in response and
to be assistance by a trade union
representative or fellow employee.
(3)
The degree of incapacity is relevant
to the fairness of any dismissal. The cause of incapacity may also be
relevant….
(4)
Particular consideration should be given to
employees who are injured at work or who are incapacitated by
work-related illness.
The courts have indicated that the duty on the
employer to accommodate the incapacity of the employee is more
onerous in those
circumstances.
11. Guidelines in
cases of dismissal arising from ill health or injury
Any person determining
whether a dismissal arising from ill health or injury is unfair
should consider –
a)
whether or not the employee is capable of
performing the work;
b)
if the employee is not capable –
(i)
the extent to which the employee is able to perform the work;
(ii)
the extent to which the employee’s work circumstances might be
adapted to accommodate
disability, or, where this is not possible,
the extent to which the employee’s duties might be adapted; and
(iii)
the availability of any suitable alternative work.”
[38]
The above
provisions were interpreted by Molemela AJA (as she then was) in
IMATU
obo Strydom v Witzenburg Municipality & others
[22]
as follows:
“
My
reading of item 10 and 11 gives me the impression that an incapacity
enquiry is mainly aimed at assessing whether the employee
is capable
of performing his or her duties, be it in the position he or she
occupied before the enquiry or in any suitable alternative
position.
I am of the view that the conclusion as to the employee’s
capability or otherwise can only be reached once a proper
assessment
of the employee’s condition has been made. Importantly, if the
assessment reveals that the employee is permanently
incapacitated,
the enquiry does not end there, the employer must then establish
whether it cannot adapt the employee’s work
circumstances so as
to accommodate the incapacity, or adapt the employee’s duties,
or provide him with alternative work if
same is available.
I must mention that I
have no doubt in my mind that permanent incapacity arising from
ill-health or injury is recognised as a legitimate
reason for
terminating an employment relationship and thus an employer is not
obliged to retain an employee who is permanently
incapacitated if
such employee’s working circumstances or duties cannot be
adapted. A dismissal would, under such circumstances
be fair,
provided that it was predicated on a proper investigation into the
extent of the incapacity, as well as a consideration
of possible
alternatives to dismissal.
The afore-mentioned
obligations of the employer as set out in items 10 and 11 of Schedule
8 to the LRA are inter-related with similar
obligations in the
Employment Equity Act 55 of 1998
. In their work, Employment Equity
Law 2001: 7-3 to 7.4, J L Pretorius et al submit that the duty of
reasonable accommodation of
employees by employers is not confined to
the
Employment Equity Act but
, is a duty that is implied in the
concept of unfair discrimination in a general sense ‟and …„is
one of the judicial
and legislative tools for realising substantive
equality”. I agree with this submission. Surely noncompliance
with such an
important constitutional imperative would not only
impact on procedural fairness but on the substantive fairness of the
dismissal
as well?
I
am of the view that the provisions of item 10 and 11 are inextricably
tied and thus non-compliance therewith would render a dismissal
both
procedurally and substantively unfair
……”
[39]
It is my view that the Commissioner did not understand the nature of
the dispute he was
required to arbitrate, which was to do a proper
assessment of the applicant’s capability to continue working as
contemplated
in Item 10 and 11 of Schedule 8 of the LRA.
[40]
The Commissioner was still obliged to do a proper assessment of the
applicant’s capability
to continue working, whether or not the
applicant was “uncooperative” and “obstructive”.
[41]
It appears that the Commissioner’s failure to do a proper
assessment is premised
on the third respondent’s reason for a
dismissal which has its genesis in the allegations that the applicant
refused to submit
a report from an Ophthalmologist.
[42]
I have not found any evidence to support the third respondent’s
contention that the
applicant refused to submit a report from an
Ophthalmologist neither have I found any evidence to support the
Commissioner’s
finding that the applicant was uncooperative and
obstructive.
[43]
On the contrary, on 24 February 2014, the applicant submitted a
report from Dr Gerber,
which the third respondent simply ignored and
provided no assistance to the applicant. On 1 October 2014, the
applicant submitted
a further medical report from Spec Savers as
instructed by the third respondent and on 31 October 2014, the
applicant submitted
a further report from Dr Rahman.
[44]
The third respondent contends that it only became aware of Dr
Rahman’s report for
the first-time at the arbitration
proceedings. As already stated above, when asked if the applicant
submitted proof at the appeal
hearing that he had consulted an eye
specialist as directed, Ms Frazer said “
No not all
”.
[45]
I have perused the evidence that was before the Commissioner which
includes the outcome
of the appeal hearing. It is not true that the
third respondent only became aware of this report at arbitration.
[46]
Dr Rahman’s report was submitted by the applicant at the appeal
hearing. This is
recorded on the appeal outcome. The chairperson of
the appeal outcome records in his outcome that:
“
On the 31
st
of October, Mr Serakalala visited an Ophthalmologist, one Dr.
Khursheeda Rahman, who prescribed that he should be issued with new
spectacles”.
[23]
[47]
I accept
that the medical report of Dr Rahman was only submitted by the
applicant at the appeal hearing (as the third respondent
was not
going to pay the Ophthalmologist, he waited until 25 October 2014,
being his pay day and consulted with Dr Rahman on 31
October
2014)
[24]
. Be that as it may,
the fact that the applicant was afforded an opportunity to appeal and
presented the report prior to the outcome
of the appeal can only
support the conclusion that the decision to dismiss him on the basis
that he had failed to make available
the report from an
Ophthalmologist is spurious and unfair.
[48]
The Commissioner simply ignored these reports. This conduct on the
part of the Commissioner
flies in the face of the well-established
principle of our law, stated in
Sidumo
case (
supra
):
“
It follows,
therefore, that where a commissioner fails to have regard to material
facts the arbitration proceedings cannot in principle
be said to be
fair because the commissioner fails to perform his or her mandate. In
so doing, in the words of Ellis, the commissioner’s
action
prevents the aggrieved party from having its case fully and fairly
determined. This constitutes a gross irregularity in
the conduct of
the arbitration proceedings as contemplated in
section 145(2)(a)(ii)
of the LRA. And the ensuing award falls to be set aside not because
it is wrong, but because the commissioner has committed a gross
irregularity in the conduct of the arbitration proceedings.”
[25]
[49]
Accordingly,
to the extent that the central issue was the provision of medical
certificates indicating the nature of the illness
of the applicant,
Dr Rahman’s report in my view answered the third respondent’s
enquiries to a large extent. According
to Dr Rahman’s report,
the applicant’s incapacity could be remedied by mere
spectacles. To this end, any contention
that the applicant’s
dismissal was fair because the applicant had been uncooperative and
obstructive, on the basis that he
had not provided the medical
reports as requested cannot be sustained. Even if Dr Rahman’s
report was only submitted at arbitration,
the Commissioner had a duty
to take that evidence into account. It is trite that an arbitrator
must decide a case on the evidence
before him and not what was before
the chairperson
[26]
. If
an arbitration hearing is a hearing
de
novo
,
then there is no valid reason why the additional evidence that was
presented at the arbitration hearing was not considered. Failure
to
consider all the relevant evidence clearly resulted in the third
respondent failing to do a proper assessment of the applicant’s
capability to continue working, as contemplated in Item 10 and 11 of
Schedule 8.
[50]
The Commissioner did not end there. On page 16 of the transcribed
record, the Commissioner
simply stopped the applicant from continuing
with his cross examination of Ms Frazer. On page 17 of the record,
the applicant asks
Ms Frazer, what I believe was a pertinent
question, namely when did the third respondent become aware that he
had spectacles and
in response thereto the Commissioner says as
follows: “
Alright sorry no more questions…”
[51]
Had the Commissioner allowed the applicant, who was unrepresented and
a lay person, an
opportunity to ask all questions he intended, the
applicant may very well have raised the fact that Dr Rahman’s
report was
presented at the appeal hearing and asked Ms Frazer why
the report was not considered by the chairperson. However, his cross
examination
of Ms Frazer was stopped abruptly by the Commissioner. It
is my finding therefore that the Commissioner did not give the
applicant
a full opportunity to have his say in respect of the
dispute and prevented a fair trial of the issues, rendering his award
reviewable.
[52]
When consideration is had to all the above circumstances, it stands
to reason that the
decision reached by the Commissioner was one that
a reasonable decision-maker could not reach and thus falls to be set
aside on
review.
[53]
Considering that the applicant was dismissed in October 2014 and to
avoid any further delays
which may prejudice the parties, in
particular the applicant, it is my view that this Court is in as good
a position as the NBCRFLI
to determine the matter.
[54]
For the reasons already set out above, it is my finding that the
applicant’s dismissal
was both substantively and procedurally
unfair.
[55]
I have noted that the relief sought by the applicant was that of
reinstatement, alternatively
compensation. It is trite that the
primary remedy is that of reinstatement, except where same is
inappropriate in which event compensation
should be ordered.
[56]
The parties have not given me any reasons why retrospective
reinstatement would not be
an appropriate remedy.
[57]
In the circumstances, I therefore make the following.
Order
2. The arbitration award
issued by the second respondent is reviewed and set aside;
3.The arbitration award
is substituted with an order that the applicant’s dismissal was
substantively and procedurally unfair;
4. The applicant is
reinstated with backpay from date of dismissal;
5. There is no order as
to costs.
—————————————
G.
Mthalane
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the applicant: Mr R Makoele of De Beers Makoele Inc.
For
the third respondent: Adv. N Moyo instructed by Roy Ramdaw &
Ass Inc
[1]
Kievits
Kroon Country Estate (Pty) Limited v Mmoledi and others
(2014) 35 ILJ 209 (SCA) at para 20.
[2]
Goldfields
Mining South Africa (Kloof Gold Mine) (Pty) Ltd v CCMA and Other
s
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC), at para 20: “The questions to ask are
these: (i) In terms of his or her duty to deal with the matter with
the minimum
of legal formalities
,
did the process that the arbitrator employed give the parties a full
opportunity to have their say in respect of the dispute
?(ii)
Did the arbitrator
identify
the dispute he was required to arbitrate (this may in certain cases
only become clear after both parties have led their evidence)?(iii)
Did the arbitrator
understand
the nature of the dispute he or she was required to arbitrate?(iv)
Did he or she deal with
the
substantial merits
of the dispute? and (v) Is the arbitrator’s decision one that
another
decision-maker could reasonably have arrived
at based on
the
evidence
.”
(Emphasis added.)
[3]
Record: P91.
[4]
Ibid: P86.
[5]
Ibid: P2 and P4.
[6]
Ibid: P6-7.
[7]
Ibid: P11.
[8]
Ibid. My emphasis.
[9]
Ibid: P14.
[10]
Ibid: P6.
[11]
Record: P24, last paragraph.
[12]
Ibid.
[13]
Ibid P25.
[14]
Ibid. P18, last paragraph and P19.
[15]
Record: P19-18.
[16]
See: Transcribed record on p.17.
[17]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008
(2) SA 24
(CC) at para 110.
[18]
2013
(6) SA 224
(SCA) at para 25.
[19]
At
para 25.
[20]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at para 20.
[21]
66 of 1995, as amended.
[22]
[2012]
7 BLLR 660
(LAC) at paras 6 – 9. Own emphasis.
[23]
Record: P 62.
[24]
The third respondent is also largely to blame. The third respondent
waited 8 months before requesting the report from the OR
Tambo Eye
Clinic. Furthermore, the applicant explained that his medical aid
was exhausted and therefore had to wait until his
next pay date to
consult an Ophthalmologist. I accept the applicant’s
explanation.
[25]
At para 268.
[26]
Independent Municipal and Allied Trade Union obo Strydom v
Witzenburg Municipality and Others
[2012] 7 BLLR 660
(LAC); (2012).