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[2020] ZALCJHB 83
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Umbhaba Estates (Pty) Ltd v Singwane and Others (JR 2495/18) [2020] ZALCJHB 83 (22 May 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 2495/18
In the
matter between:
UMBHABA
ESTATES (PTY)
LTD Applicant
and
OVAMBO
SINGWANE First
Respondent
COMMISSIONER
SOLLY MASHEGO Second
Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION Third
Respondent
ENROLLED:21 May 2020,
in view of the measures implemented as a result of the Covit-19
outbreak this matter was decided on papers.
DELIVERED:This
judgment was handed down electronically by circulation to the parties
representatives by email and release to SAFLII.
The date and time for
hand-down is deemed to be 12h00 on 22 May 2020.
JUDGMENT
MABASO,
AJ:
[1]
The applicant is challenging the arbitration award only on the
arbitrator’s
finding that the dismissal was procedurally
unfair. The applicant also asks this Court to make an order
that it is exempted
from complying with the provisions of section
145(8)(b) of the Labour Relations Act
[1]
(LRA).
I have considered the supporting grounds of the latter prayer and am
not satisfied that there are proper grounds thereof.
Neither of
the respondents delivered opposing papers.
[2]
The applicant in its founding papers, states the grounds of review
thus. It contends
that the arbitrator failed to apply his mind to the
evidence that was presented before him specifically in respect of the
notice
to attend the disciplinary hearing that was issued to the
employee as being short notice. It alleges that the employee neither
raised as a point during the disciplinary hearing nor the
arbitration. That during the disciplinary hearing the employee
advised
that he was ready to proceed. It is further contended that
since the employee did not raise the issue of the short notice is a
concern as this was only raised by the arbitrator, thus he committed
a reviewable irregularity.
[3]
It is an acceptable ground of review where an applicant can show that
an arbitrator
failed to apply their mind to issues that were material
to the determination of a case which resulted in them
misunderstanding
the issues called upon to decide or result in an
unreasonable outcome.
[2]
The
Commissioner is expected to assist an unrepresented party in an
arbitration. However, such assistance should not be unfair whereby
he tells the parties what evidence must be presented.
[4]
During the arbitration, the applicant led the evidence of Mr Cloete
which is summarised
hereinafter. The employee was given the notice to
attend the disciplinary hearing. The applicant complied with schedule
8(4), which
requires that an employee should be given a reasonable
time to prepare for the inquiry. The employee was given 24 hours
notice
to prepare for the hearing, and the nature of the charges
against him was not complex. During the hearing, the employee
indicated
that he was ready to proceed with the hearing
[3]
.
Further, the employee’s rights were explained to him and the
employee chose not to call witnesses.
[5]
Following the testimony of Mr Cloete, the arbitrator explained to the
employee that
it was now time for cross-examination. He then further
stated that:
"I
hope that those things that you are disputing you will put the
version to him".
[4]
The
employee did not state that the period for him to prepare for the
hearing was short.
[6]
It is alleged that the arbitrator misdirected himself in that he was
the one who raised
the issue of the short notice. I have perused the
transcripts, and it transpires that the notice issue was dealt with
during the
narrowing of the issues by the arbitrator, which was
triggered by the fact that the employee had initially indicated that
he had
not received a notice to attend the disciplinary hearing.
[5]
Therefore,
I conclude that the arbitrator did not commit any misdirection in
enquiring about the period of the notice because it
is based on what
was presented before him.
[7]
However, the arbitrator failed to apply his mind to the relevant
evidence that was
presented before him, in that there was evidence
that the employee stated that he was ready to proceed with the
hearing. The notice
was given to the employee more than 48 hours
before the hearing., The employee in tendering his testimony did not
raise this as
an issue anymore. Mr Cloete explained the nature of the
charges against the employee. Furthermore, he pointed out that the
employee,
after being served with a notice to attend the hearing, was
not given any task by the employer who allowed him to prepare for the
hearing. Based on this evidence, I conclude that the arbitrator
should have applied his mind to these points. Therefore, the award
that he issued in respect of the procedural aspect is one that a
reasonable decision-maker could not have made.
[8]
Under the circumstances, I conclude that the dismissal was
procedurally fair. Therefore,
part of the arbitration award is
substituted as per the order below.
[9]
In the premises the following order is made:
Order
1.
The arbitration award in respect of the
finding by the Commissioner that the dismissal was procedurally
unfair, is reviewed and
set aside and substitued with a finding that
the dismissal was procedurally fair.
2.
There is no orders as to costs.
_____________________
S Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Yusuf Nagdee Attorney
[1]
No.
66 of 1995, as amended.
[2]
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others
(2014)
35 ILJ 943 (LAC).
[3]
P.
41 of the records.
[4]
P.
48 records.
[5]
Ring—pa8
of the records.