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[2019] ZALCJHB 306
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Makokoropo v Commission for Conciliation, Mediation and Arbitration and Others (JR1062/15) [2019] ZALCJHB 306 (19 September 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case No: JR1062/15
In
the matter between
SYLVIA
MAKOKOROPO
Applicant
And
COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
MPHO
BRENDAH MABIDI
N.O
Second Respondent
COMPASS
GROUP AND OTHERS
Third Respondent
Heard:
14 November 2018
Delivered:
14 November 2018
Edited:
19 September 2019
EX-TEMPORE
JUDGMENT
MAHOSI. J
Introduction
[1]
This
is an application in terms of section 145 of the Labour Relations
Act
[1]
(LRA) to review and set
aside the arbitration award issued by the second respondent (the
arbitrator) under case number LP8786/14,
dated 24 May 2015, under the
auspices of the first respondent, the Commission for Conciliation,
Mediation and Arbitration (CCMA).
In her award the arbitrator found
the applicant’s dismissal to have been both and procedurally
and substantively fair.
Background
[2]
The background to the dispute is common
cause, and may be summarised thus: The applicant was employed as a
supervisor by the third
respondent from 1 April 2015 and was
subsequently dismissed on 26 November 2015 for charges relating to
misconduct. Dissatisfied
with his dismissal, the applicant referred a
dismissal dispute to the CCMA for conciliation. The dispute was
conciliated unsuccessfully
after which it was referred to
arbitration. The arbitration was held on 8 April 2015, 23 April 2015
and 14 May 2015. Subsequent
to the arbitration proceedings the
arbitrator issued an award, which is the subject matter of this
application.
Grounds of review
[3]
The applicant brought this application on
the basis of a number of grounds. The first one was that the
arbitrator overlooked whether
the offences that the applicant was
charged with were dismissible offences in view of the fact that the
second and third charges
were a consequence of the first charge. The
second ground was that the arbitrator did not only exceed her powers,
but she also
failed to apply her mind to the matter she was called to
consider and adjudicate. The third ground was that the arbitrator
fabricated
evidence and came to findings that were not supported by
the facts and the law, resulting in an award that is not justifiable
in
relation to the reasons given for it.
[4]
The fourth ground was that the arbitrator
placed no rational link between the evidence before her and the
factual conclusion, thereby
exceeding her powers. The fifth ground
was that arbitrator’s decision that there is no timeframe to
institute disciplinary
hearing, and that the third respondent had
succeeded in proving on the preponderance of probabilities that the
dismissal of the
applicant was procedurally and substantively fair
was not reasonable based on the evidence before her.
[5]
The sixth ground was that, the arbitrator
failed to apply her mind to the matter in failing to find that the
third respondent’s
failure to discipline the applicant promptly
is short of its waiver or deemed waiver to institute disciplinary
hearing, so grossly
unfair that it vitiates the decision to dismiss
the applicant. The seventh ground was that the arbitrator failed to
make an attempt
to assess the credibility of each witness and to make
some observations on their demeanour. The eighth ground was that the
arbitrator
failed to consider the improbabilities inherent in Lindi’s
evidence, that she could not remember the clothes that the applicant
was wearing, as she was drunk.
[6]
The
last ground was that the arbitrator failed to apply the principles
laid down in
SFW
Group Ltd and
Another
v
Martell
et Cie and Others
[2]
pertaining to techniques generally employed by commissioners or
courts in resolving factual disputes.
The third respondent’s
submissions
[7]
In opposing this application, the third
respondent raised a point
in limine
relating to the applicant’s failure to discover the entire
record of the proceedings in this matter. The third respondent
further opposes the application on the basis that the applicant
failed to make out a case of review in her founding papers.
Furthermore,
the third respondent submitted that there was simply
nothing irregular in the award and that it was certainly a reasonable
outcome.
Applicable law and
analysis
[8]
Arbitration awards are reviewable in terms
of section 145 of the LRA, which provides that any party to a dispute
who alleges a defect
in any arbitration proceedings under the
auspices of the Commission may apply to the Labour Court for an order
setting aside the
arbitration award.
[9]
The
principle, as laid out in
Sidumo
another Another v Rustenburg Platinum Mines Ltd and Others
[3]
is
whether a decision reached by a commissioner is one that a reasonable
decision maker could have reached. Therefore, the test
on review is
not whether the commissioner came to the correct decision that the
court sitting in its position would have reached.
The test is whether
the commissioner arrived at a reasonable decision based on the
material before him.
[10]
On the issue of the incomplete record, the
third respondent’s submission was that the applicant failed to
discover the entire
record of the proceedings despite having filed
the Notice in terms of Rule 7(a)(8). The documents which were not
discovered were
the respondent’s bundle of documents, the
commissioner’s handwritten notes, exhibit R, constituting 20
pages, and exhibit
A, constituting 11 pages.
[11]
It is the third respondent’s
submission that these documents form an essential part of the
evidence before the commissioner.
Further that without them, the
Court would be unable to properly and fairly determine the
applicant’s review application.
The applicant in this regard
has offered no reason or explanation for her failure to discover the
missing portion of the record.
Her representative has also not been
able to offer any reason or explanation, as he was not given proper
instructions in that regard.
[12]
The
third respondent referred the Court to the LAC judgment in
JDG
Trading
(Pty)
Ltd t/a Russells
v
.
Witcher
N.O.
and
Others
[4]
,
which is binding to this Court. It is apparent that the applicant
disregarded the rules of this Court and has failed to give a
reasonable explanation for her failure to file and discover the full
record of the proceedings. In so doing, the applicant acted
in a
degree of derelictness and a manner that is grossly remiss.
Consequently, her review application stands to be dismissed on
this
basis alone.
[13]
Even
if the Court were to consider the applicant’s grounds of
review, the third respondent contends that the review application
is
defective for want of compliance with the Rules of this Court. In
terms of Rule 7A(2)(c) of the Rules of this Court, an applicant
is
required to state the grounds of review in his or her founding
affidavit. The founding affidavit has to set out the factual
and the
legal grounds upon which the applicant relies on to have the
arbitration award reviewed and set aside. Those facts and
the
circumstances surrounding the review may be further augmented in the
supplementary affidavit filed once the record of the proceedings,
which are challenged, have been filed. (See
Telcordia
Technologies
Inc
v Telkom
SA Ltd
[5]
)
.
[14]
In
the current case, the applicant has set out broad and general legal
grounds upon which she relies on for her review application.
The
applicant failed to provide particularity to enable the third
respondent to answer thereto. This makes the review application
fatally defective. In
MIT
Tissue v Theron and Others
[6]
this
Court held that:
“
Rule
7A(2)(c) requires that the application for review “should set
out factual and legal grounds upon which the applicant
relies”.
…Such failure would normally be fatal.”
[15]
From the reading of the record and the
award itself, there is a clear indication that the commissioner took
into account all the
evidence before him, and applied his mind to the
issues raised by the parties. As such, the arbitrator took into
account the totality
of circumstances before arriving at the finding
that the applicant’s dismissal was both procedurally and
substantively fair,
and that a sanction of dismissal would be
appropriate. It can therefore not be said that he reached an
unreasonable conclusion.
[16]
With regard to costs, taking into account
the requirements of law and equity, this is a matter in which there
should be no order
as to costs.
[17]
In the premises, I make the following
order:
Order
1.
The review application is dismissed.
2.
There is no order as to costs.
___________________________
D. Mahosi
Judge
of the Labour Court of South Africa
Appearances
For
the applicant
Advocate
M. Sekhethela
Instructed
by
S.O Ravele Attorneys
For
the Respondent
Ms Thandi Moyo of Snyman Attorneys
[1]
Act
66 of 1995 as amended.
[2]
2003
(1) SA 11 (SCA).
[3]
(2007)
28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC).
[4]
[2001]
JOL 7842
(LAC).
[5]
[2006] ZASCA 112
;
2007
(3) SA 266
(SCA) at para 32.
[6]
[2000]
8 BLLR 947
(LC) at para 23.