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[2019] ZALCJHB 176
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Idwala Industrial Holdings v Pieterson NO and Others (JR2783/18) [2019] ZALCJHB 176 (19 July 2019)
in
the labour court of South Africa, Johannesburg
Not Reportable
Case no: JR2783/18
In the matter between:
IDWALA INDUSTRIAL
HOLDINGS Applicant
And
COMMISSIONER DAVID
PIETERSON
N.O
First
Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION Second
Respondent
BAMCWU
OBO M.
LEGODU Third
Respondent
Heard: 9 July 2019
Delivered:
19 July 2019
JUDGMENT
OLIVIER AJ
Introduction
[1]
In this application the applicant seeks to
review an arbitration award issued by the First Respondent in which
the Commissioner
found that the dismissal of the Third Respondent by
the Applicant was unfair. The Applicant applied for an order to
review
and set aside the arbitration award issued by the First
Respondent and to have the matter remitted back to the Second
Respondent
to convene a fresh arbitration before a Commissioner other
than the First Respondent.
[2]
The
Applicant contends that the First Respondent failed to discharge his
duty to deal with the substantial merits of the dispute
between the
Applicant and the Third Respondent as required by Section 138(1) of
the Labour Relations Act
[1]
(the
LRA).
[3]
In essence, the Applicant argues that the
First Respondent misconceived the nature of the enquiry he was called
upon to undertake
and that this resulted in there not being a fair
trial of the issues between the parties. The Applicant also
contends that
this manifested in an unreasonable result, and
therefore the arbitration award should be reviewed and set aside.
.
Background facts
[4]
The Applicant conducts open cast mining
operations in the Northern Cape.
[5]
The Third Respondent was employed on 4 June
2010 in the position of mobile operator. At all relevant times
her employment
was subject to relevant mining legislation and
regulations, in particular mine health and safety legislation which
includes a mandatory
code of practice for minimum standards of
fitness to perform work at a mine ("the DMR Code").
In terms of the DMR
Code operators of heavy duty equipment are
required to have binocular vision including depth of vision and
colour vision.
The Third Respondent initially complied with
these requirements.
[6]
The Third Respondent however started
experiencing some vision problems during 2014. During 2015 the
Third Respondent sought
medical assistance as her eyesight in her
left eye had worsened. She was referred to a specialist
ophthalmologist Dr. Jackson
who referred her for further
investigation. It was then revealed that the Third Respondent
had a brain tumour that was affecting
her vision.
[7]
During November 2015 the Third Respondent
underwent an operation to remove the brain tumour. She was
booked off until January
2016. The operation did however not
repair the damage to the vision in the Third Respondent's left eye.
When she returned
in January 2016 the Third Respondent was placed on
light duties in order for her eyesight to recover. The DMR Code
requires
that a period of at least six months recovery time allowed
after an injury.
[8]
The Third Respondent was given certain
duties in the Human Resources Department in an "accommodated"
position which included
messenger, filing and administrative work.
The Third Respondent was thereafter assessed by an Occupational
Therapist and
it was determined that she was unable to return to work
as mobile operator. The medical specialist again assessed the
Third
Respondent in August 2016 and his diagnosis was that the loss
of vision in the left eye was permanent. As such, the Third
Respondent had become permanently incapacitated from performing her
job as mobile operator.
[9]
During May 2017 a formal incapacity enquiry
was held. The Third Respondent was represented by her Trade Union
representative from
BAMCWU. At this hearing the Third
Respondent confirmed that she was unable to perform her job as mobile
operator due to the
fact that she had lost sight in her left eye.
It was decided at this hearing that the Applicant would assist the
Third Respondent
in applying for disability benefits and that pending
the outcome of the disability application the Third Respondent would
remain
on the Applicant's payroll. She also at the time
underwent an exit medical examination in terms of the relevant mine
health
and safety legislation.
[10]
It is common cause that the claim to the
insurance provider to provide disability benefits for the Third
Respondent was unsuccessful.
On 3 August 2018 the Applicant's
services were terminated and she was paid until the end of August
2018.
The arbitration
proceedings
[11]
At the start of the arbitration
proceedings, the Third Respondent conducted an exercise to try and
narrow the issues in dispute.
In his award the First Respondent
however recorded the following material findings in respect of the
parties' versions:
11.1
That it is common cause that the Third
Respondent's vision problem emanated from the workplace whilst she
was performing the duties
of a mobile operator;
11.2
That the Third Respondent gave uncontested
evidence that her impaired vision problem lasted for a short period
of time and that
she recovered from it after the operation removing
the brain tumour;
[12]
The aforesaid findings of the Commissioner
are wholly incompatible with the evidence led at the hearing and the
common cause facts
as set out above.
[13]
The Commissioner further found that the
Third Respondent's dismissal was procedurally fair, but substantively
unfair as he was of
the view that the Third Respondent had been
utilised by the Applicant to provide administrative work and that the
Applicant did
not lead any evidence on how it concluded to terminate
the Third Respondent's services.
The test on review
[14]
In
Sidumo
and another vs Rustenburg Platinum Mines Limited and others
[2]
(
Sidumo
)
,
the Constitutional Court held that :
"In the light of the
constitutional requirement (in section 33(1) of the Constitution)
that everyone has the right to administrative
action that is lawful,
reasonable and procedurally fair, the reasonableness standard should
now suffuse s145 of the LRA …
the threshold test for the
reasonableness of an award or ruling is the following:
Is the decision reached
by the commissioner one that a reasonable decision-maker could not
reach?"
[15]
Following
on
Sidumo
the Supreme Court of Appeal in the Judgment of
Herholdt
vs Nedbank
(
Herholdt
)
[3]
held
as follows:
"[A] review of a
CCMA award is permissible if the defect in the proceedings falls
within one of the grounds in s145(2)(a) of
the LRA. For a
defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by s145(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.
Material errors of
fact, as well as the weight and relevance to be attached to
particular facts, are not in and of themselves sufficient
for an
award to be set aside, but are only of any consequence if their
effect is to render the outcome unreasonable."
(emphasis
added).
[16]
Following
the
Herholdt
and
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[4]
judgments,
the Labour Appeal Court handed down the judgment of
Head
of Department of Education v Mofokeng and Others
[5]
(
Mofokeng
).
In this judgment, Murphy AJA, writing for the unanimous court,
provided the following exposition of the review test:
"[32]
Mere errors of fact or law may not be enough to vitiate the award.
Something more is required. To
repeat: flaws in the reasoning of the
arbitrator, evidenced in the failure to apply the mind, reliance on
irrelevant considerations
or the ignoring of material factors .etc.
must be assessed with the purpose of establishing whether the
arbitrator has undertaken
the wrong enquiry, undertaken the enquiry
in the wrong manner or arrived at an unreasonable result. Lapses in
lawfulness, latent
or patent irregularities and instances of
dialectical unreasonableness should be of such an order (singularly
or cumulatively)
as to result in a misconceived enquiry or a decision
which no reasonable decision maker could reach on all the material
that was
before him or her.
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an
unreasonable outcome or provide
a compelling indication that the arbitrator misconceived the enquiry.
In the final analysis, it
will depend on the materiality of the error
or irregularity and its relation to the result. Whether the
irregularity or error is
material must be assessed and determined
with reference to the distorting effect it may or may not have had
upon the arbitrator's
conception of the enquiry, the delimitation of
the issues to be determined and the ultimate outcome. If but for an
error or irregularity
a different outcome would have resulted, it
will ex hypothesis be material to the determination of the dispute. A
material error
of this order would point to at least a prima facie
unreasonable result. The reviewing judge must then have regard to the
general
nature of the decision in issue; the range of relevant
factors informing the decision; the nature of the competing interests
impacted
upon by the decision; and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the
LRA.
Provided the right question was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the
same token, an irregularity or error material to the
determination of the dispute may constitute a misconception of the
nature
of the enquiry so as to lead to no fair trial of the issues,
with the result that the award may be set aside on that ground alone.
The arbitrator however must be shown to have diverted from the
correct path in the conduct of the arbitration and as a result failed
to address the question raised for determination." (emphasis
added).
[17]
The dictum in
Mofokeng
highlights many important things about the review test. The dictum
provides for the following analysis:
17.1
The first enquiry is whether the facts
ignored were material, which will be the case if a consideration of
them would (on the probabilities)
have caused the commissioner to
come to a different result;
17.2
if this is established, the (objectively
wrong) result arrived at by the commissioner is prima facie
unreasonable;
17.3
a second enquiry must then be embarked upon
— it being whether there exists a basis in the evidence overall
to displace the
prima facie case of unreasonableness; and
17.4
if the answer to this enquiry is in the
negative, then the award stands to be set aside on review on the
grounds of unreasonableness
(and vice versa).
The Commissioner
misconceived the nature of the enquiry and his duties in connection
with it
[18]
Having regard to the findings that the
First Respondent had made, particularly relating to his patently
incorrect findings that
the Third Respondent had "recovered"
from her condition and that it was "work related", it is
clear that the
Commissioner misconstrued the enquiry that he had to
embark upon.
[19]
The Commissioner also began from a premise
that a permanent alternative position was available that the Third
Respondent could be
placed into on a permanent basis. This
finding is also not supported by the evidence.
[20]
Due to the misconceptions in relation to
the material before him and the question that he had to investigate
and determine, the
Third Respondent did not appreciate the true
nature of the enquiry he was required to undertake. He for
instance failed to
properly assess the evidence before him relating
to the following:
20.1
The evidence demonstrated that the Third
Respondent's vision did not improve after the brain surgery and that
her visual impairment
was permanent.
20.2
It was furthermore clear from the evidence
that the Third Respondent was not placed in a permanent alternative
position, she was
accommodated in
ad hoc
functions and from 22 May 2017 she was not required to work and was
merely paid a salary whilst the applications were made to the
insurance providers for disability benefits.
20.3
Instead of dealing with the substantial
merits and investigating to what extent the Applicant should have
conducted an investigation
in order to accommodate the disability of
the Third Respondent, he merely concluded that she should have been
appointed to a permanent
alternative position.
20.4
The First Respondent made a material error
of fact by concluding that the Third Respondent's visual impairment
was caused by a workplace
injury.
[21]
It is the court's view that the
Commissioner had ignored material evidence and had made a material
error of fact which he then had
taken into account and arrived at a
conclusion that a reasonable Commissioner could not have made.
A reasonable Commissioner
would have concluded that the Third
Respondent was permanently incapacitated from performing her role as
a mobile operator.
This resulted in the Applicant not being
afforded a fair hearing and ultimately a result that is not
reasonable.
[22]
The Applicant can however be faulted for
not placing sufficient evidence before the First Respondent to
properly consider why alternative
positions could not have been
suitable to accommodate the Third Respondent's incapacity.
[23]
In the premises, the following order is
made:
Order
1.
The arbitration award issued is reviewed
and set aside.
2.
The matter is remitted to the Commission
for Conciliation, Mediation and Arbitration to be heard afresh by a
Commissioner other
than the First Respondent.
3.
There is no order as to costs.
____________________
G. J. P. OLIVIER
Acting Judge of the
Labour Court of South Africa
Appearances:
For the Applicant: Zinhle
Ngwenya
Instructed
by: Joubert Galpin Searle
[1]
Act 66 of 1995, as amended.
[2]
(2008) 28 ILJ 2405 (CC).
[3]
[2013] 11 BLLR 1074 (SCA).
[4]
(2014) 35 ILJ 943 (LAC).
[5]
[2015]
1 BLLR 50
(LAC).