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[2019] ZALCCT 44
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Pioneer Foods (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (C720/2017) [2019] ZALCCT 44 (20 March 2019)
THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
Case
No. C720/2017
Not
reportable
Of
interest to other judges
In
the matter between:
PIONEER
FOODS (PTY) LTD
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
COMMISSIONER
JJ KITSHOFF
Second Respondent
FOOD
&
ALLIED WORKERS UNION
Third Respondent
(FAWU)
EDWARD
MOLOTSI
Fourth Respondent
Heard:
13 March 2019
Delivered:
20 March 2019
Summary:
Review- misconduct - assault- reviewed and remitted.
JUDGMENT
STEENKAMP
J:
Introduction
[1]
This is an application for review in terms of section 145 of
the Labour Relations Act 66 of 1995 (the
LRA)
in which the
Applicant (the
Company)
seeks to have reviewed, set aside and
corrected the arbitration award made by the Second Respondent (the
Arbitrator)
on 22 October 2017.
[2]
The arbitration award found that the dismissal of the Fourth
Respondent
(Molotsi)
was substantively unfair. The Company was
directed to reinstate him with effect from 1 November 2017 and to pay
him back pay retrospectively
to 21 April 2017, the date of his
dismissal.
[3]
The application is opposed by Molotsi and his trade union, the
Third Respondent
(FAWU).
The Court has a full record of the
proceedings before the Arbitrator, including the bundles of documents
that served before him,
as well as a verbatim transcript of the
arbitration proceedings. I am also indebted to the parties'
representatives for their comprehensive
heads of argument, from which
I have drawn to set out the common cause facts and some of the
authorities relied upon.
[4]
The following facts appear to be common cause and
uncontroversial:
4.1
On 7 March 2017, an incident took place at the Company's
Bokomo Breakfast Cereals factory.
4.2
It was alleged that Molotsi had refused to perform the
instructions that his direct supervisor (Ivan Davids) and the
factory's production
manager (Abraham Ryneveld
(Ryneveld))
gave
to him to clean the oven belt.
4.3
An altercation had then developed between Molotsi and Ryneveld
that ultimately resulted in Molotsi striking Ryneveld on the head
with an iron rod, causing him to suffer a six-centimetre head injury
that required immediate medical treatment, including stitches.
4.4
Both Ryneveld and Molotsi attended at the Company's internal
medical practitioner (Charlotte Samuels
(Samuels))
and she
referred them to a doctor for further assessment.
4.5
Both Ryneveld and Molotsi reported the matter to the Company's
management and the Company took the view that Molotsi
was the aggressor in the incident and that he should be
subjected to formal disciplinary action.
4.6
Molotsi was charged with assault with the intent to do
grievous bodily harm and, following a disciplinary hearing,
was
dismissed. The date of dismissal is recorded as 20
April 2017.
4.7
It is not clear whether any action was taken against
Ryneveld. However, both he and Molotsi instituted criminal
proceedings against one another in their personal capacities. Those
proceedings were settled on the basis that Molotsi would pay
for
Ryneveld's medical expenses.
[5]
Molotsi referred an unfair dismissal dispute to the First
Respondent (the
CCMA)
and an arbitration hearing took
place on 30 August and 6 October 2017 before
the Arbitrator. The Arbitrator
delivered his award on 22 October
2017. He found that Molotsi had been dismissed unfairly.
[6]
Whilst the findings made in the arbitration award will be
dealt with in greater detail below when I
deal with
the review grounds, the Arbitrator essentially found that Ryneveld
was the aggressor during the altercation, and that
he had violently
attacked Molotsi and had severely assaulted him, thereby
causing Molotsi to act in self-defence.
The Arbitrator
found that Molotsi had struck a single blow with
the rod in order to prevent any further
assault from Ryneveld. On
this basis, he found that Molotsi was innocent of the charge
preferred against him at the disciplinary
hearing and accordingly
that there was not a fair reason for his dismissal.
[7]
Given
that the dispute turned on two competing versions of events, it is
important to set out in some detail the respective versions
of what
took place during the altercation.
[1]
The
evidence before the Arbitrator
The
Company's version
[8]
The Company's case was presented by Ryneveld and Samuels,
together with supporting evidence from the oven operator (Elizabeth
Pretorius
(Pretorius)).
[9]
Ryneveld's version of the incident can be summarised as
follows:
9.1
Davids had instructed Molotsi to clean the oven belt in order
to
remove product that had become stuck to the belt. Molotsi had
refused. Davids had thus requested Ryneveld to intervene
as the
manager responsible for production on the shift.
9.2
Ryneveld had approached Molotsi and had instructed him to clean the
oven belt
at the end of the production cycle with his team. In
Ryneveld's view, this behaviour was out of character, as Molotsi was
typically
the type of employee who readily complied with
instructions.
9.3
Molotsi repeated his refusal to obey Ryneveld's instruction and
became angry and argumentative.
At the time he was holding the iron
rod in his hands and was approaching Ryneveld. He continued to be
argumentative with Ryneveld.
9.4
Ryneveld forcibly pushed Molotsi in the centre of his chest with his
fingers. He had then
turned his back on Molotsi in order to call
Elizabeth Pretorius, who was the oven operator for the muesli line.
He wished to report
Molotsi's insubordinate conduct to Pretorius so
that she could take further action.
9.5
At this stage, Molotsi had climbed on top of a metal box containing
the electrical workings
for the extruder machine. Ryneveld assumed
that this was because Molotsi had decided, albeit reluctantly, to
comply with Ryneveld's
instruction. In reality, Molotsi had done so
in order to gain a height advantage over Ryneveld (who is much
taller) and proceeded
to strike Ryneveld from behind with the iron
rod.
9.6
Ryneveld swung around and grabbed at the bar which Molotsi was using,
to attempt another strike.
Ryneveld's vision was partially blocked
due to the blood that was running into his eyes.
9.7
Ryneveld succeeded in wrestling the rod away from Molotsi, who then
ran away.
9.8
Ryneveld proceeded immediately to Samuels and reported the incident
with Davids.
Due to the severity of his injury, he had been referred
to a doctor for stitches. When he returned to the factory, he noticed
that
Molotsi, together with another employee, Thirnal Adendorf, were
coming out of Samuels' office.
9.9
Ryneveld had thereafter lodged a criminal case against Molotsi and
this had ultimately been settled
on the basis that Molotsi would pay
for Ryneveld's medical expenses.
[10]
Samuels's evidence can be summarised as follows:
10.1
Ryneveld had approached her with an iron rod in his hand and he was
covered in blood.
She cleaned the injuries on his head and noticed
that there was a single long laceration that was bleeding profusely.
She was unable
to stop the bleeding and accordingly she bandaged it
and sent Ryneveld immediately to a Dr Lucas for stitches.
10.2
She thereafter completed the incident on duty form. She recorded the
time of her
assessment as 12h57, and the time of the incident as
12h55.
10.3
After Ryneveld had left, Molotsi had arrived by himself at 13h20 and
had complained
only of a chest injury.
10.4
Samuels had inspected the injury and noted in her incident
investigation report
that the mid-chest area was slightly red and was
reported as being painful.
10.5
She confirmed on several occasions that no other complaints had been
raised by Molotsi during her examination.
10.6
She confirmed that approximately five minutes after Molotsi had
arrived, two
further co-workers and FAWU shop stewards entered her
office (namely Adendorf and Eugene April) who insisted that Molotsi
should
be referred to a doctor.
10.7
Given their insistence, she gave Molotsi a referral letter to attend
at a Dr Munro. It appears that Molotsi was examined by Dr
Munro at
15h30 on the same day and that he had reported, in addition to the
chest injury, contusions to the shoulder areas and
right glute area.
Samuels confirmed that these additional injuries had not been
reported to her during her examination of Molotsi.
[11]
Pretorius gave evidence as to what she could see and hear
during the altercation. She was only able to state that she could
hear
screaming, but could not see what was happening as her view was
obstructed. She was also in the same vicinity as Albert Molotsi,
thereby confirming that he was unlikely to have witnesses the
incident visually.
Molotsi's
version
[12]
Molotsi gave the following evidence at the arbitration:
12.1
Molotsi confirmed that shortly before lunch on 7 March 2017,
he was
running production as normal and that product on the apple strudel
line was sticking in the extruder. He had been approached
by
Ryneveld, who said to him that after the production was finished he
must clean the belt. There had then been a discussion as
to when
Molotsi was going to do this and whether he would obtain assistance.
12.2
Molotsi testified that this discussion had developed
into an argument
and that Ryneveld had pointed to him with his finger. When Molotsi
objected to this, Ryneveld had pressed him
hard with two outstretched
fingers in his chest. He confirmed that these are the injuries
reflected in the incident report and
that provided by Dr Munro.
12.3
He then claimed that he had climbed up onto the extruder and
that
Ryneveld had followed him, shouting insults as he went. Ryneveld had
then grabbed him around the waist, causing him to fall
onto his
buttocks on the workshop floor. The iron rod had rolled behind the
linear machine.
12.4
He then alleged that Ryneveld had grabbed him around the neck
whilst
he was partially unconscious and had proceeded to punch him on the
face on several occasions. Molotsi had succeeded in locating
the iron
rod, which he then used to strike Ryneveld on the head as a means of
stopping the assault. Ryneveld had continued to punch
Molotsi and had
grabbed him, causing him to fall down. Ryneveld had grabbed the rag
and went "to the back".
12°.5
He had thereafter proceeded to wash his face as it was, in his words,
"red"
.
(presumably
with blood).
·12.6
During cross-examination, Molotsi's further expanded on his version
of events. He claimed that when Ryneveld had grabbed
him around the
waist, he had fallen onto the factory floor and had knocked his head.
This had nearly caused him to die.
12.7
Ryneveld had punched him on at least five occasions.
12.8
Ryneveld had grabbed him for a second time, causing him to fall and
bang his head. This
was after he had struck Ryneveld with the iron
rod.
12.9
He could not however explain why he himself was not covered with
Ryneveld's blood
as a result and simply sought to evade the questions
put to him by the Company's representative.
12.10
He had then proceeded to see Samuels who was angry with him and would
not listen
to his complaints. Eugene April had then taken him to Dr
Munro.
12.11
Molotsi confirmed that the shop stewards (Adendorf and April) had
arrived
sometime after he had been busy with Samuels and that they
had berated her for not referring Molotsi to a doctor. He did however
receive a referral from her in order to meet with Dr Munro.
12.12
Molotsi was referred to two photographs, which he alleged set out the
nature of
the injuries sustained during the altercation. The
photographs showed only the red marks on his chest.
12.13
Molotsi confirmed that he did not have any blood on his clothing as a
consequence of the
altercation.
[13]
Albert Molotsi (who for convenience shall simply be referred
to as Albert) is Molotsi's cousin and gave evidence regarding the
incident.
This is summarised as follows:
13:·1
He was standing next to Pretorius and had witnessed a significant
part of the assault perpetrated by Ryneveld and,
in particular,
Ryneveld punching Molotsi.
13.2
During cross-examination, it was put to Albert that this version was
highly improbable given Pretorius's evidence that the
altercation was
not visible and due to his failure to intervene in the altercation
which, on his own version, was extremely serious.
In any event, as Mr
Whyte
pointed out, the version presented by Albert was
completely at odds with that presented by Molotsi.
[14]
The balance of Molotsi's case concerned evidence presented by
the shop stewards regarding the meeting with Samuels and the
photographs
that they had allegedly taken of Molotsi's injuries.
These only indicate that Molotsi had been struck on the chest and
that his
cap had been torn. There were no photographs taken of the
other alleged injuries and no explanation was forthcoming as to why
this
was the case.
The
arbitration award
[15]
In his award, the Arbitrator made the following material
findings:
15.1
The version presented by Molotsi was to be preferred and, as a
consequence,
he could not be found guilty of the offence of
assaulting Ryneveld with the intention of doing grievous bodily harm.
The Arbitrator
concluded that Molotsi had acted in self-defence in
circumstances where he was being subjected to a serious assault by
Ryneveld.
15.2
Ryneveld's version regarding where Molotsi was standing when he was
struck
on the head was improbable, given the location of the
electrical box.
15.3
Given that Ryneveld was larger than Molotsi, it was more probable
that
Molotsi had sustained the injuries contained in Dr Munro's
report. These injuries included damage to Molotsi's
"head and
face, his sides, shoulders and his buttocks".
These injuries
"could not be explained" by Samuels.
15.4
It was probable that Molotsi was repeatedly punched and kicked in the
ribs.
15.5
Pretorius's evidence was to be rejected in its entirety, as she was
supposedly afraid
to testify.
15.6
The evidence of Samuels was to be rejected in its entirety because
she was
either under an instruction not to check the injuries, or she
had an inherent bias which caused her to side with the Company's
management against Molotsi.
[16]
As a consequence of these findings, the Arbitrator found that
Molotsi's version was to be preferred over that of the Company's
witnesses
and that he was accordingly not guilty of the offence
proffered against him by the Company. The Arbitrator also found that
the
Company had acted in an inconsistent fashion by disciplining
Molotsi but not Ryneveld.
The
Company's grounds of review
[17]
Mr
Whyte
submitted that the award should be reviewed
and set aside for the following main reasons:
17.1
The Arbitrator's assessment and determination of the competing
versions
before him constituted an error of law through a
misapplication of the balance of probability standard. He contended
further that
the prevailing legal position requires arbitrators to
properly assess competing versions according to all of the evidence
before
them, and their failure to complete this exercise properly
renders their awards reviewable.
17.2
The conclusions reached by the Arbitrator based upon the evidence
before
him are not those that a reasonable arbitrator could reach.
Legal
principles
[18]
The
relevant legal principles have by now become fairly well accepted and
summarised. The Supreme Court of Appeal in
Herholdt
[2]
stated:
"In
summary, the position regarding the review of CCMA awards is
this: A
review
of
a
CCMA award is permissible
if
the defect in the proceedingsfalls 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. Material errors of fact, as
well as the
weight and relevance to be attached to
parlicular 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).
[19]
In
Mofokeng
[3]
,
the
LAC clarified earlier misconceptions regarding its judgment in
Goldfields
Mining
[4]
such
that it was emphasised that an arbitrator may not
"misconceive
the inquiry or undertake the inquiry in
a
misconceived
manner'.
Further,
that
"there
must be
a
fair
trial of the issues".
It
is thus not an absolute requirement that a misconceived inquiry must
result in an unreasonable
result,
although
this would almost invariably be the case.
[20]
Thus whilst mere errors of fact may not be enough to
vitiate the award, something more would be required,
namely whether the arbitrator has undertaken
the wrong enquiry
or
has arrived at an unreasonable result.
[21]
Thus,
"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.
mThe
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."
[5]
[22]
And in DENOSA
[6]
, the LAC found
that
[7]
,
A
material error of law committed by a arbitrator may on its
own,.without having to apply the exact formulation set out in Sidumo,
justify
a
review and setting aside of the award depending on
the facts
... "
[23]
In
MacDonald's
Transport
[8]
,
the LAC
postulated that
[9]
,
"...
there is much to be said for the proposition that an arbitrator in
the CCMA
...
who wrongly interprets
an instrument commits
a
reviewable
irregularity
as envisaged by section 145 of
the LRA;
ie,
a
reasonable
arbitrator does not get
a
legal point wrong."
[24]
The Court did not express a view on whether 'correctness' was
a distinct test, or whether it was simply unreasonable for an
arbitrator
to get the law wrong.
[25]
Much
the same approach was adopted in the civil administrative
jurisdiction under the Promotion of Administrative Justice Act 3
of
2000
(PAJA)
[10]
.
In
Genesis
Medical Scheme
an
administrator's decision was set aside by the Constitutional Court on
the basis of error of law, even where the administrator
had applied
the law as it existed at the time of the decision.
[26]
Finally,
the SCA found in
Pistorius
[11]
that
the failure by the trial court to consider certain evidence led
to a violation of its duty to properly evaluate all of
the evidence
before it, and thus to commit an error of law.
[27]
This
authority also highlights the point that conducting an assessment of
the decision maker's analysis of the evidence does not
collapse the
distinction between an appeal and a review. The SCA referred to the
decision of the Canadian Newfoundland Court
of Appeal in
R
v Roman
[12]
,
where
it was held that:"
There
is
a
distinction between reassessment by an appeal court
of evidence for the purpose of weighing its credibility to
determine
culpability on the one hand and, on the
other, reviewing the record to ascertain if there has been an
absence
of appreciation of relevant evidence. The former
requires addressing questions of fact and is placed outside the
purview of an
appellate tribunal
. . .
the
latter enquiry is one of law because if the proceedings indicate
a
lack of appreciation of relevant evidence, it becomes
a
reviewable question of law as to whether
this lack precluded the trial judge from effectively interpreting
and
applying the law."
[28]
These
principles were applied by the LAC in
NUM
&
another
v CCMA
&
others
[13]
where
the Court found as follows:
"...
[a] resolution of factual disputes is at the core of the
commissioner's task in arbitrating
a
dispute between the
parties. For compelling reason, the
same
technique to be
employed by
a
Court is to be employed by the commissioner when
faced with irreconcilable versions,
as
was set out in [SFW
Group Limited
&
another v Martell et cie and others
2003(1) SA 11 (SCA)].
"The
[Court
a
quo] correctly determined that the commissioner had
failed to employ this technique in his resolution of the
irreconcilable versions
before him. It was not for the commissioner
to arrive at
a
decision that one version was probable and
another not, without careful regard had to the evidence in the manner
set out above."
[29]
Although the LAC went on to find that the commissioner's
failure rendered the outcome unreasonable, the point is simply that
an
arbitrating commissioner who fails to conduct the required factual
analysis commits an error of law or misconducts him/herself,
thereby
rendering the award reviewable.
[30]
To summarise, where a CCMA arbitrator simply refuses to
evaluate a party's evidence, or to state in rational terms why it
should
be rejected, he or she commits a reviewable irregularity
both
because it constitutes a gross irregularity (in that the
arbitrator does not determine the issue placed before him or her)
and
because it constitutes an error of law (in that the arbitrator
has not applied the required test of the balance of probabilities).
Evaluation
[31]
Given the Arbitrator's obligation to evaluate the competing
versions presented by Ryneveld and Molotsi on a balance of
probabilities,
I agree with Mr
Whyte
that the more probable
findings that the Arbitrator could have made were as follows:
31.1
An
altercation had developed between Ryneveld and Molotsi regarding an
instruction that had been given to Molotsi by two members
of the
Company's management
[14]
.
Whether Molotsi was aggrieved by this instruction was irrelevant, as
the evidence was clear that he was obliged to comply with
it.
31.2
An argument had developed between Molotsi and Ryneveld during which
Molotsi had resisted compliance with Ryneveld's instruction. Molotsi
was holding an iron rod and Ryneveld had forcibly pushed him
away
with his fingers by applying pressure to Molotsi's chest area.
31.3
This incident was confirmed by Molotsi and is furthermore
substantiated
by the incident report prepared by Dr Samuels, the
medical report submitted by Dr Munro and the photograph taken by the
shop stewards.
31.4
Ryneveld's conduct in pushing Molotsi away was not done in an effort
to initiate an assault but to create space between them, given that
Molotsi was acting out of character and was gesturing towards
Ryneveld's face with the iron rod.
31.5
Ryneveld had then turned to report the matter to Pretorius
whereupon
Molotsi (who had climbed onto the extruder) struck Ryneveld with the
rod, thereby causing a serious injury which resulted
in Ryneveld
bleeding profusely, such that his clothing was covered in blood. The
nature of this blow and its consequences is not
in dispute.
31.6
In response, Ryneveld swung around and managed to wrestle the rod
away from Molotsi, who was attempting to strike Ryneveld for a second
time.
31.7
It is improbable that Ryneveld had followed Molotsi onto the extruder
box and had then tackled him round the waist, causing him to fall
onto the floor. It is even less probable that Molotsi was punched
on
several occasions in the face, that he was throttled or that he
struck his head with such violence that he was almost rendered
unconscious.
31.8
Had these injuries in fact occurred, these would have been
reported
to Samuels and would have been photographed by the shop stewards. It
is also improbable that the altercation could have
taken place in the
manner described by Molotsi without his clothing having become
covered with blood.
31.9
Whilst it is true that certain additional injuries are reflected on
Dr
Munro's report, there is no indication of the injuries allegedly
suffered by Molotsi to his face and head. This is particularly
perplexing given how serious those injuries must have been. Even on
Molotsi's own version, there is no evidence of any injury to
his head
or face.
31.10
There is no evidence of the alleged injuries that Molotsi claimed
to
have suffered after having been kicked in the ribs by Ryneveld.
[32]
In summary, there is no evidence to support the contention
that the incident took place in the manner described by Molotsi, as
opposed
to that described by Ryneveld and subsequently confirmed by
Samuels during her examination.
[33]
There was no basis for the Arbitrator to find that Samuels was
not a credible witness. Her evidence was not seriously placed in di
pute during cross examination and the findings of her
examination are entirely consistent, both with the photographs taken
by the shops stewards, as well as Dr Munro's report (apart from the
marks on Molotsi's shoulder and buttocks). I can find no basis
for
the Arbitrator's finding that Samuels was somehow biased in favour of
the Company, refused to examine Molotsi or sought to
hide the true
nature of Molotsi's injuries.
[34]
In any event, had Samuels intended to cover up the incident,
she would hardly have agreed to refer Molotsi to Dr Munro. In this
regard, her initial reticence to refer Molotsi to a doctor was for
the simple reason that the only injury that he had presented
to her
was the swelling in the chest area. Self-evidently, this did not
require the attention of a medical specialist.
[35]
The alternative hypothesis is far more probable, namely that
the shop stewards had sought to elevate the nature of Molotsi's
evidence
as an effort to build a defence against serious disciplinary
charges which were inevitably to follow.
[36]
Dr Munro was not called as a witness, and the Arbitrator was
accordingly not entitled to proceed upon the assumption that Dr
Munro's
analysis of Molotsi's injuries were more believable than
those referred to by Samuels. In any event, Dr Munro did not report
the
existence of any injuries to Molotsi's head, face or ribs. In
that regard, the Arbitrator's findings are supported by no evidence
other than Molotsi's fanciful version and are thus irrational and
misconceived. I will return to the question whether the parties
should be given the opportunity to call further witnesses, such as Dr
Munro.
[37]
The Arbitrator's rejection of Pretorius's evidence is also not
based on any rational grounds. There was no evidence that Pretorius's
testimony had been altered as a consequence of bias in the Company's
favour or that she was scared to give open and honest testimony.
Rather, she simply truthfully confirmed that she was unable to
witness the incident directly, but heard that there was a serious
altercation. Had Pretorius been inclined to lie on behalf of the
Company, she would simply have confirmed the version of events
presented by Ryneveld.
[38]
In summary, the Arbitrator committed an error of law by
failing to properly evaluate the competing versions placed before him
and
in failing to determinethose versions based on the balance of
probabilities. This failure constitutes a reviewable irregularity
and
warrants the arbitration award being reviewed and set aside. The
Arbitrator's failure is compounded by reliance on completely
unsubstantiated evidence of alleged injuries that were not supported
either by Dr Munro's report or the photographs taken by the
shop
stewards.
[39]
Furthermore, the outcome reached by the Arbitrator is not one
that a reasonable arbitrator could reach. Given the totality of the
evidence, the more probable conclusion was that Molotsi had violently
assaulted a member of the Company's management who had attempted
to
give him a lawful and reasonable instruction (albeit that Ryneveld
had pushed Molotsi on the chest).
Conclusion
and relief
[40]
I find that the award made by the Arbitrator must be reviewed
and set aside, both on the basis of error of law, and because it is
irrational to the extent that it could not have been made by a
reasonable arbitrator.
[41]
That leaves the question of the appropriate relief. Despite my
findings above, based on the evidence before the arbitrator,
I
do not agree that this is a matter where the Court should substitute
its decision for that of the arbitrator.
[42]
Firstly, the inspection
in loco
played a big part in
the arbtirator's finding that Ryneveld's decision was improable. The
Court has not had that opportunity.
It may be that
another arbitrator comes to the same conclusion, once he or she had
had the same opportunity, or to a different
one. That is for an
arbitrator with first hand knowledge to decide.
[43]
Secondly, it may well be that the parties choose to call
further witnesses - such as Dr Munro - to clear
up
some of the discrepancies highlighted above.
[44]
Thirdly, the question of consistency - i.e. whether the
company took disciplinary steps against Ryneveld - may need to
be
cleared up through further evidence and
argument.
[45]
For these reasons, the dispute should be remitted to the CCMA
for a fresh arbitration.
[46]
With
regard to costs, I take into account that the upshot is that the
dispute is not finalised. I also take into account the continuing
relationship between FAWU and the company, as well as the following
sentiments recently articulated by the Constitutional Court
in
Long
v SAB:
[15]
"It
is well accepted that in labour matters, the general principle that
costs follow the result does not apply. This principle
is based on
section 162 of the LRA, which reads:
"(1)
The Labour Court may make an order for the payment of costs,
according to the requirements of the law and fairness.
(2)
When deciding whether or not to order the payment of costs, the
Labour Court may take into
account-
(a)
whether the matter referred to the Court ought to have been referred
to arbitration
in terms of this Act and, if so, the extra costs
incurred in referring the matter to the Court; and
(b)
the conduct of the parties-
(i)
in proceeding with or defending the matter before the Court; and
(ii)
during the proceedings before the Court."
The
relationship between the general principle of costs and section 162
was considered and settled by this Court in Zungu
[16]
:
"In
this matter, there is nothing on the record indicating why the Labour
Court and Labour Appeal Court awarded costs against
the applicant.
Neither court gave reasons for doing so. It seems that both courts
simply followed the rule that costs follow the
result. This is not
correct. In the result, the Labour Court and the Labour Appeal Court
erred in not following and applying the
principle in labour matters
as set out in
Dorkin.
The courts did not exercise their
discretion judicially when mulcting the applicant with costs. This
Court is therefore entitled
to interfere with the costs award. Taking
into account the considerations of the law and fairness, it will be
in accordance with
justice if the orders of costs by the Labour Court
and Labour Appeal Court are set aside and each party pays his or her
own costs."
It
is clear that when making an adverse costs order in a labour matter,
a presiding officer is required to consider the principle
of fairness
and have due regard to the conduct of the parties."
[47]
In law and fairness, each party should pay its own costs in
this matter.
Order
[48]
I therefore make the following order:
48.1
The arbitration award under case number WECT 7532-17 of 22 October
2017 is reviewed and set aside.
48.2
The dispute is remitted
to the CCMA for
a
fresh arbitration by a commissioner other
than the second respondent.
48.3
There is no order as to costs.
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Jason Whyte of Norton Rose Fulbright.
..
THIRD and FOURTH RESPONDENTS: Sipho Mhlalo of FAWU.
[1]
I am grateful to Mr Whyte for his useful summary, which accords with
the transcript.
[2]
Herholdt v Nedbank Ltd
[2013] 11 BLLR 1074
(SCA).
[3]
Head of the Department of Education v Mofokeng and others [2015] 1
BLLR 50 (LAC).
[4]
Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA & others
[2014] 1 BLLR 20 (LAC).
[5]
Mofokeng at para 33 (emphasis added).
[6]
Democratic Nursing Organisation of SA on behalf of Du Tait &
another v Western Cape Department of Health & others (2016)
37
ILJ 1819 (LAC).
[7]
At para 23, per Davis JA (emphasis added).
[8]
Macdonald's Transport Upington (Pty) Ltd v Association of
Mineworkers and Construction Union (AMCU) and others [2017] 2 BLLR
105 (LAC).
[9]
At para 30, per Sutherland JA.
[10]
See Genesis Medical Scheme v Registrar of Medical Schemes and
Another (CCT139/16)
[2017] ZACC 16
;
2017 (9) BCLR 1164
(CC);
2017
(6) SA 1
(CC) (6 June 2017).
[11]
Director of Public Prosecutions, Gauteng v Pistorius
[2016] JOL
34806
(SCA).
[12]
R v Roman (1987), 38 CCC (3d) 385, 66 Nfld. & PEIR 319,204 APR
319.
[13]
[2017] ZALAC 73
;
[2018] 3 BLLR 267
(LAC) per Savage AJA
[14]
The Arbitrator did not dispute that the instruction was both lawful
and reasonable.
[15]
Long v South African Breweries (Pty) Ltd (2019] ZACC 7 (19 February
2019) par [27] - (29].
[16]
Zungu v Premier of the Province of KwaZulu-Natal (2018] ZACC 1;
(2018) 39 ILJ 523 (CC); (2018] (6) BCLR 686 (CC) at para 24
referring to Member of the Executive Council for Finance,
KwaZulu-Natal v Dorkin NO (2007] ZALAC 41; (2008) 29 ILJ 1707 (LAC)
at para 19.