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[2020] ZALCJHB 190
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Sishen Iron Ore Company Ltd (Sishen Mine) v Keetsemang and Others (JR 344/2018) [2020] ZALCJHB 190 (24 June 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case no: JR 344/2018
In the matter between:
SISHEN
IRON ORE COMPANY LTD
(SISHEN
MINE)
Applicant
and
HENTSE
KEETSEMANG
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second
Respondent
ZOLISWA
TABA N.O
Third
Respondent
NATIONAL
UNION OF MINEWORKERS
Fourth
Respondent
Enrolled:
17 June 2020
Delivered:
24 June 2020
In
view of the measures implemented as a result of the Covid-19
outbreak, this judgment was handed down electronically by circulation
to the parties' representatives by email. The date for hand-down is
deemed to be on 24 June 2020.
JUDGMENT
PRINSLOO, J
Introduction
[1]
The Applicant seeks to review and set aside
an arbitration award dated 1 February 2018 and issued under case
number NC1759-17 wherein
the Third Respondent (the arbitrator) found
that the First Respondent’s (the Respondent) dismissal was
substantively unfair
and the Applicant was ordered to reinstate him
retrospectively.
[2]
The First and Fourth Respondents opposed
the application.
[3]
The matter was enrolled for hearing on 17
June 2020. In accordance with the provisions of the ‘Urgent
directive in respect
of access to the Labour Court’ dated 28
April 2020, which is applicable with effect from 4 May 2020 until the
end of the
July 2020 recess, the parties agreed that this matter be
disposed of without oral argument. I have considered the papers filed
as well as the written heads of argument submitted by the parties.
Material background
facts:
[4]
The Applicant employed the Respondent as a
grade 2 blasting operator in April 2010. He was dismissed in July
2014 for absconding,
but he was later reinstated after he had
submitted evidence that he was in fact booked off sick.
[5]
In February 2017, the Respondent was
dismissed once again for dishonesty related to the misuse of sick
leave. He subsequently referred
an unfair dismissal dispute to the
Second Respondent and challenged the substantive fairness of his
dismissal.
The evidence adduced:
[6]
The issue to be decided by the arbitrator
was whether the Respondent was guilty of the charge of misuse of sick
leave, as levelled
against him and if so, whether dismissal was the
appropriate sanction.
[7]
In order to assess the arbitrator’s
findings and the grounds for review raised by the Applicant, it is
necessary to consider
the evidence adduced at the arbitration
proceedings as well as the charge that the Respondent faced.
The Applicant’s
case
[8]
The Applicant’s witness, Ms
Mothibedi, testified that she is the human resources advisor at Sihen
Mine, responsible for the
blasting division, where the Respondent was
employed. She testified that on 13 October 2015, she had a discussion
with the Respondent
because his sick leave was deemed to be out of
control, as per the Applicant’s policy.
[9]
Ms Mothibedi referred to the Applicant’s
sick leave policy and specifically clause 7 thereof which provides
for ‘sick
leave out of control’. According to clause 7.1
of the policy, an employee’s sick leave will be deemed to be
out of
control in the following circumstances:
9.1
Where an employee with less than six
months’ service is absent on sick leave three or more times;
9.2
Where an employee with more than six months
but less than 12 months’ service is absent on sick leave four
or more times;
9.3
Where an employee has been absent on sick
leave six or more times during the preceding 12 months.
[10]
Ms Mothibedi explained that the Respondent
fell in the category of ‘more than six months but less than 12
months service’
and at the time the aforesaid discussion in
October 2015 with the Respondent took place, he had already taken 27
days sick leave
on nine instances. She explained that also present in
the meeting were the Respondent and his supervisor.
[11]
Ms Mothibedi testified that when the
Respondent was reinstated in 2014, it was part of the terms of his
reinstatement that his sick
leave would be closely monitored. It was
only 10 months later when his sick leave was already out of control.
As his sick
leave was out of control, the Applicant had a discussion
with him.
[12]
When an employee’s sick leave is out
of control, the Applicant will have a discussion with such employee,
also to determine
whether there is any assistance which the employer
could offer to the employee. If, after the discussion, there is no
improvement,
the case is referred to the occupational health
practitioner (OHP) and the occupational medical practitioner (OMP) of
the mine
to determine whether there is any serious illness that is
causing the employee not to be at work as expected.
[13]
Ms Mothibedi explained that during the
discussion with the Respondent on 13 October 2015, she recorded that
in the Respondent’s
view, he regarded himself as fit for his
job. She further recorded that he was asked whether he needed
assistance from the Applicant,
that looking at his sick leave record,
he was not able to offer his services as expected. She further
recorded that the Respondent
consulted different doctors during the
period of 10 months, he indicated that he had a running stomach, gal,
dizziness and sweating
but he does not have a chronic illness.
[14]
As part of correctional action, the
Respondent was referred to the OHP to evaluate his sick certificates
and to the OMP to determine
if he had any illness that prevented him
from attending work. The Respondent was also referred to ICAS for
counselling.
[15]
Ms Mothibedi explained that in terms of
clause 7.2 of the sick leave policy, an employee whose sick leave
records appear to be out
of control, would be referred to a medical
practitioner, appointed by the Applicant, for assistance. Rejection
of such assistance
will be deemed to be an intent to continue abusing
the sick leave benefits and may lead to counselling and disciplinary
action,
should there be no improvement in the employee’s sick
leave record.
[16]
She testified that an employee is abusing
sick leave if there is a clear pattern such as taking sick leave at
month end, after or
before off days or weekends. This was indeed the
case with the Respondent.
[17]
In October 2015, the Respondent was
referred to Dr Moeletsi, as part of the outcome of his out of control
sick leave discussion
he had with the Applicant. Dr Moeletsi
confirmed that the Respondent does not have any chronic illness that
would impact on him
being employable, but rather that he had severe
domestic problems.
[18]
Ms Mothibedi testified that the Respondent
had a history of sick leave abuse and she referred to a SAP report
which showed that
the Applicant’s Human Resources had the first
sick leave out of control discussion with him in 2012. He deserted in
2013
and he tested positive for drugs. In 2014, the Respondent
deserted and he was dismissed. After he was reinstated in December
2014,
he was informed that his sick leave would be monitored, but
within 10 months his sick leave was out of control and another sick
leave out of control discussion took place in October 2015. The
Respondent improved for a short period between October 2015 and
February 2016 but there after he took a total of 60 days’ sick
leave within a period of five months (between March and August
2016).
[19]
Ms Mothibedi referred to the Respondent’s
sick leave record for 2016 and indicated that there was a pattern of
abuse as he
took his sick leave before or after his off days or
weekends or at month end. She testified that he could not be
rehabilitated
as the Applicant did all it could to provide assistance
to the Respondent in terms of counselling, he was referred to the OMP
and
it was determined that he had no chronic illness that prevented
him from being at work.
[20]
The Applicant could not have any further
discussions with the Respondent as he did not suffer from a chronic
medical condition and
all the applicable processes were exhausted.
Since the discussion in October 2015 until the Respondent was charged
with misconduct
in December 2016, there was no improvement in the
manner in which the Respondent used his sick leave, notwithstanding
the assistance
that the Applicant provided to him. That was why the
Applicant decided to follow a disciplinary route.
[21]
Ms Mothibedi also referred to the ICAS
report, prepared after his referral, wherein it was recorded that the
Respondent had a history
of excessive absence from work and had taken
excessive sick leave which impacted on his productivity. He failed to
obtain the necessary
authorisation for time off from his workplace
and he provided excuses for his absence , which excuses were
unsatisfactory.
[22]
She also referred to the minutes of the
internal appeal hearing where the union representative on behalf of
the Respondent presented
his case and stated that the Respondent did
not ‘
deliberately intended to
misuse sick leave’, but unfortunately at every month end, his
wife ‘beats him even at the private
places, kicking him at the
private parts. It looked like it is always on month end but that is
when there is money, there are problems.’
[23]
Ms Mothibedi testified that the Respondent
knew the rule as the sick leave out of control policy was read to him
and he was aware
that if he continued to misuse his sick leave, it
might lead to counselling or disciplinary action. There was no
improvement in
the manner that the Respondent used his sick leave and
it resulted in a disciplinary hearing on account of misuse of sick
leave.
The disciplinary code provides for dismissal as a sanction in
the event that an employee refuses to improve his use of sick leave,
even for a first offence.
[24]
Ms Mothibedi referred to the disciplinary
code which provides that misuse of sick leave for purposes other than
recuperation or
medical treatment is ‘dishonesty or attempted
dishonesty’ and dismissal is the prescribed sanction.
[25]
In cross-examination it was put to Ms
Mothibedi that Dr Moeletsi recorded that the Respondent has severe
domestic problems leading
to depression and a peptic ulcer and he was
referred to his surgeon for his ulcers. Ms Mothibedi was asked that
in the event that
an employee has personal problems and not a medical
condition, how such an employee would be assisted by the Applicant.
She explained
that such an employee would be assisted with
counselling and that is why the Respondent was referred to ICAS.
[26]
Ms Mothibedi explained that the ICAS report
found that there were safety concerns regarding the Respondent’s
accident record
and his general level of efficiency and productivity.
The report found misconduct resulting in disciplinary action. It was
important
to acknowledge the employee’s circumstances and to
provide him with support, but it was also important to acknowledge
the
operational requirements of his role and the effect of his
absence on his colleagues and productivity.
[27]
Ms Mothibedi conceded that the Respondent
was in need of help and she testified that the Applicant provided him
with assistance
so that he could be at work as expected, but instead
he became a very unreliable employee. There was no improvement in his
use
of sick leave and that is why the Applicant decided to take
disciplinary action against him.
The Respondent’s
case
[28]
The
Respondent testified that he was employed by the Applicant from April
2010 until his dismissal in December 2016. He testified
that from
2013, he experienced problems at home as he was beaten by the women
he stayed with and it only ended in 2016 when he
had moved away to
Kathu. On 24 October 2016, he applied for a protection order in terms
of the Domestic Violence Act
[1]
and his evidence was that since he obtained a protection order, his
attendance at work improved. He testified that he was not informed
about the recommendations made by the ICAS counsellor.
[29]
In cross-examination the Respondent
conceded that there was a trend in his sick leave pattern in that it
was always at the end or
beginning of the month when he got his
salary and his girlfriend would get drunk and would beat him. His
girlfriend was breastfeeding
for six months after October 2015 and
she could not drink, therefore his attendance improved during that
period.
[30]
The Respondent explained that the 60 days’
sick leave that he took in 2016 was the result of his girlfriend
beating him, he
was bitten by a dog and he was mugged and stabbed
with a knife. He went to a medical doctor and obtained sick notes and
he testified
that he did not expect to be dismissed for going to the
doctor and taking sick leave.
Analysis of the
arbitrator’s findings and the grounds for review
The test on review
[31]
I
have to deal with the grounds for review within the context of the
test that this Court must apply in deciding whether the arbitrator's
decision is reviewable. The test has been set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
(
Sidumo)
as
whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach.
The
Constitutional Court held that the arbitrator's conclusion must fall
within a range of decisions that a reasonable decision
maker could
make.
[32]
The
Labour Appeal Court (LAC) in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[3]
affirmed the test to be applied in review proceedings and held that:
In short: A reviewing
court must ascertain whether the arbitrator considered the
principal issue before him/her; evaluated
the facts presented at the
hearing and came to a conclusion that is reasonable.
[33]
The review Court must consider the totality
of the evidence and then decide whether the decision made by the
arbitrator is one that
a reasonable decision maker could make based
on the facts placed before him/her.
[34]
The
test and the context within which it is to be applied is thus that
the review court is not required to take into account every
factor
individually, consider how the arbitrator treated and dealt with each
of those factors and then determine whether a failure
by the
arbitrator to deal with it is sufficient to set the award aside. A
piecemeal approach of dealing with the award is improper
as the
reviewing Court must consider the totality of the evidence and then
decide whether the decision made by the arbitrator is
one that a
reasonable decision maker could make
[4]
.
[35]
The
LAC has confirmed to do it differently or to evaluate every factor
individually and independently is to defeat the very requirement
of
section 138 of the Labour Relations Act
[5]
(LRA) which requires the arbitrator to deal with the substantial
merits of the case and to do so expeditiously and fairly.
[36]
The ultimate question is whether
holistically viewed, the decision taken by the arbitrator was
reasonable based on the evidence
placed before her.
The arbitrator’s
findings on substantive fairness
[37]
The issue to be decided by the arbitrator
was whether the Respondent was guilty of misuse of sick leave and if
so, whether the sanction
of dismissal was appropriate.
[38]
In her analysis the arbitrator referred to
Item 7 of Schedule 8 of theLRA to determine whether the Respondent’s
dismissal
for misconduct was substantively fair.
[39]
The arbitrator considered the question
whether there was a rule, was it known to the Respondent and was it
reasonable. The Respondent
was found guilty of and dismissed for a
dishonesty charge emanating from the misuse of sick leave, which is
provided for in item
3.1 of the disciplinary code. Item 3.1 indicates
that dishonesty or attempted dishonesty includes misuse of sick
leave, which is
described as sick leave for purposes other than
recuperation or medical treatment.
[40]
The arbitrator accepted that the Respondent
knew or ought to have known that a rule against dishonesty existed
and she found the
rule to be reasonable as employees have a fiduciary
duty to act honestly towards their employers. She held that the fact
that there
was a rule, that it was reasonable, and known by the
Respondent was not enough to accept that he was guilty of the charges
levelled
against him.
[41]
The arbitrator stated that it was necessary
to consider whether the Respondent indeed broke the rule and made
himself guilty of
dishonesty. The Respondent’s case was that
his actions did not fall within the ambit of the charge which he was
dismissed
for.
[42]
In considering whether the Respondent
indeed broke the rule, the arbitrator had regard to the rule relating
to dishonesty and found
that the Applicant had to prove that the
Respondent used the sick leave for purposes other than recuperation
or medical treatment
and that in doing so, he had the intention to
deceive or cheat.
[43]
The only evidence adduced as proof that the
Respondent acted dishonestly and misused his sick leave, was the
pattern of his sick
leave and the fact that he consulted different
doctors. The Applicant’s whole case against the Respondent
revolved around
the pattern or the trend of his sick leave.
[44]
The Respondent submitted medical
certificates which were issued by registered medical practitioners,
which certificates were never
rejected by the Applicant when they
were submitted in support of the Respondent’s sick leave.
[45]
The arbitrator accepted that a pattern or
trend in the way sick leave is taken raised a suspicion of
dishonesty, but held that such
does not prove dishonesty or misuse of
sick leave, nor does the fact that the Respondent went to different
doctors for different
treatments. It reasonably raised grounds for an
investigation to be conducted.
[46]
The arbitrator also accepted that an
employer has the right to investigate sick leave certificates
submitted to confirm their authenticity
before approving sick leave.
In casu,
the
Applicant accepted the medical certificates submitted by the
Respondent as valid and never investigated their authenticity.
The
Applicant could therefore not prove that the Respondent was not sick
on the days that he was off sick and for which he had
submitted
medical certificates.
[47]
In respect of the Applicant’s policy
on sick leave, the arbitrator found that the Applicant’s
investigation was whether
the Respondent had a chronic illness which
could have affected his attendance. From the start, the Respondent’s
contention
was that he had problems at home, which affected his
health and attendance, not that he suffered from a chronic illness.
He co-operated
with the Applicant and was seen by the OMP, chosen by
the Applicant. The report from Dr Moeletsi confirmed that the
Respondent
did not have a chronic illness but that he was suffering
from severe domestic problems leading to depression and causing him
peptic
ulcers. The ICAS report also indicated that the Respondent’s
problems could be solved.
[48]
The Respondent did not reject the
assistance that the Applicant offered him in terms of the applicable
policy. The Applicant referred
the Respondent to ICAS for counselling
as it was aware of his personal problems. The arbitrator found that
the Applicant provided
assistance to the Respondent, but no other
discussion was held and no follow-up was made with him or ICAS and
the recommendations
made by the ICAS counsellor were ignored. Instead
of seeing the process and the assistance to its end, the Applicant
charged the
Respondent with misconduct.
[49]
The Respondent’s case that his
attendance at work improved drastically since October 2016 after he
had obtained a protection
order up to December 2016 when he was
charged with misconduct, was undisputed. The arbitrator found that
disciplinary action should
have been taken only in the event when
there was no improvement.
In casu,
the
Respondent’s attendance improved at the time when he was
charged and instead of recognising that the assistance that was
given
finally bore fruit, the Applicant dismissed the Respondent on a
charge relating to dishonesty, which it was unable to prove.
[50]
The arbitrator further considered that the
Respondent was not entirely without fault as he had to safeguard his
job, he had lost
his job earlier due to similar issues, he was warned
that his attendance would be monitored and he knew he was treading on
thin
ice. He should have obtained the protection order earlier.
[51]
In conclusion the arbitrator found that the
Respondent’s hands are not entirely clean, but that the
Applicant ultimately failed
to show that the Respondent was dishonest
and used his sick leave for any other purpose than for medical
treatment or recuperation.
[52]
The Respondent’s dismissal was found
to be substantively unfair and he was reinstated retrospectively, but
the arbitrator
awarded only partial retrospective reinstatement with
effect from 3 November 2017 and the Applicant was ordered to pay him
backpay
from November 2017 until February 2018.
Grounds for review
The arbitrator’s
findings are unreasonable
[53]
The Applicant’s first ground for
review is that the arbitrator’s finding that the Respondent was
unfairly dismissed
is unreasonable.
[54]
This is so because the arbitrator failed to
apply her mind to material issues and facts. The Applicant submitted
that the arbitrator
overly emphasized the need for the employer to
prove dishonesty and did not focus on the extended nature of the
charge which is
dishonesty relating to misuse of sick leave. The
arbitrator’s finding that there was nothing to prove dishonesty
because
the Applicant did not investigate the medical reports, is
unreasonable.
[55]
The Applicant submitted that the arbitrator
failed to consider that:
55.1 The
Respondent’s behaviour had been classified as misuse of sick
leave;
55.2 The
pattern of sick leave may not have proved a form of dishonesty, but
it strongly pointed to it;
55.3
There was a clear pattern of sick leave and this pattern alone
impacted on the trust relationship;
55.4
The outcome of the OMP report was that the Respondent did not suffer
from any serious medical condition that
prevented him from attending
work and he could have done more to ensure his attendance at work.
[56]
The Applicant’s case is that had the
arbitrator applied her mind, she would have found that the Respondent
misused his sick
leave in that he had developed a pattern of taking
sick leave during suspicious periods, he was fit to perform his
duties and he
could not prove that he had used his sick leave days
for medical treatment or recuperation. Although the arbitrator
accepted that
the Respondent was also in the wrong, she failed to
adequately weigh his contribution to the prevailing circumstances.
[57]
In my view, there is no merit in this
ground for review.
[58]
The arbitrator had to consider whether the
Respondent was indeed guilty of the misconduct he was dismissed for.
In considering this
question, the obvious starting point would be a
consideration of the charge.
[59]
The Applicant charged the Respondent in
terms of clause 3.1 of its disciplinary code, which provides for
dishonesty or attempted
dishonesty, which includes ‘misuse of
sick leave for other purposes than recuperation or medical
treatment.’
[60]
The question which leaps out is whether the
Applicant produced evidence to support the charge of misconduct for
which the Respondent
was dismissed and whether the arbitrator made an
unreasonable finding when she found that the Applicant had failed to
do so.
[61]
It is trite and has been accepted by this
Court that an employer has the right to discipline its employees, of
course in a lawful
and fair manner. In fact, the disciplining of
employees is the duty and the prerogative of the employer and an
employer remains
dominis litis
in
deciding whether an employee is to be charged for misconduct and if
so, what the nature of the charges would be.
[62]
In
the event that an employee is dismissed for reasons related to
misconduct, the employer is bound by the election it has made,
as was
confirmed in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[6]
where
the LAC held that:
‘
It
is an elementary principle of not only our labour law in this country
but also of labour law in many other countries that the
fairness
or otherwise of the dismissal of an employee must be determined
on the basis of the reasons for dismissal which the
employer gave at
the time of the dismissal.’
[63]
The arbitrator found that the Applicant has
to prove that the Respondent used his sick leave for other purposes
than recuperation
or medical treatment and that he did so with a
dishonest intention.
[64]
The facts before the arbitrator were that
the Respondent submitted medical certificates when he was off sick,
issued by registered
medical practitioners, which were accepted by
the Applicant. There was not a shred of evidence adduced to show that
the Respondent
used his sick leave for any purpose other than
recuperation or medical treatment and it was evident that the
Applicant’s
case was firmly based on what it believed to be a
trend or pattern in taking sick leave. The arbitrator found that such
pattern
does not prove dishonesty or misuse of sick leave.
[65]
The arbitrator approached the question of
whether the Respondent’s dismissal was substantively fair by
first considering the
charge of misconduct for which he was
dismissed, thereafter the elements which the Applicant had to prove
to succeed with its case
that the Respondent was indeed guilty of the
misconduct and lastly she considered the facts placed before her.
[66]
The issues which the Applicant complains
of, stating that the arbitrator did not consider, were not material
to the issue she had
to decide. The Applicant’s submission that
the arbitrator
should have found that the
Respondent misused his sick leave in that he could not prove that he
had used his sick leave days for
medical treatment or recuperation is
misplaced. Firstly, the Applicant had to prove the charge against the
Respondent and there
was no onus on him to prove the converse and
secondly, the Applicant accepted medical certificates for the days
when the Respondent
was off sick. Had the Applicant dealt with the
matter differently or had it charged the Respondent differently, the
outcome might
have been different, but on the charge as it was
formulated by the Applicant and on the evidence adduced in support
thereof, the
arbitrator could not have come to the conclusions, as
per the Applicant’s submissions.
[67]
It is evident from the transcript that the
Applicant had failed to adduce evidence to support the charge and the
arbitrator’s
finding to that effect, is not unreasonable and is
not disconnected from the evidence that was placed before her.
Gross
irregularities in the conduct of her duties
[68]
The second ground for review is that
arbitrator committed gross irregularities in the conduct of her
duties and the Applicant’s
complaint in this regard is
two-fold. Firstly, the arbitrator made findings disconnected from the
evidence which was presented
and secondly she failed to have regard
to the fact that the Applicant was only required to prove its case on
a balance of probabilities.
[69]
I will first consider whether the
arbitrator made findings disconnected from the evidence.
[70]
In support of this ground for review, the
Applicant submitted that the evidence was that the Respondent was
cautioned that his sick
leave would be monitored and because of this
the arbitrator ought to have reasoned that at all times when the
Respondent took sick
leave, he should have been cognisant and
cautious of the amount of sick leave he took in light of the fact
that he was expressly
warned. The arbitrator should have found that
the Respondent was aware that his sick leave was excessive and it was
rational for
his employer to assume that it was being abused or
misused. The Applicant’s case is that it was not possible to be
sick for
the number of days on which the Respondent was off sick
without some serious or chronic illness and that the arbitrator
failed
to apply her mind to the fact that the Respondent did not
suffer a chronic illness.
[71]
The arbitrator placed undue weight on the
fact that the Respondent suffered from domestic problems and
depression and ignored the
fact that his attendance improved over the
period October 2015 until March 2016, which means that the Applicant
could have reasonably
assumed that the Respondent’s illness had
subsided.
[72]
This ground for review and the submissions
made in support thereof are astonishing.
[73]
What the Applicant effectively seeks is for
the court to find that the arbitrator’s findings are
disconnected from the evidence
and in support thereof the Applicant
made submissions that are entirely disconnected from the issue that
the arbitrator had to
decide and the evidence that was presented.
There is no merit in this ground for review.
[74]
The Applicant lost sight of the charge it
formulated and dismissed the Respondent on and lost sight of the
issue that the arbitrator
had to consider when raising this ground
for review. The issue was not whether the Respondent’s sick
leave was excessive
or whether it was rational for his employer to
assume that it was being abused or misused. The issue was whether the
Applicant
was able to adduce evidence to proof the charge of
misconduct.
[75]
The Applicant’s case in support of
this ground for review is supported by assumptions, as it submitted
that it was rational
to assume that the Respondent’s sick leave
was being abused or misused and that it could have reasonably assumed
that the
Respondent’s illness had subsided during October 2015
until March 2016.
[76]
There was no assumption to be made
regarding the subsiding of an illness, as the Respondent’s
undisputed evidence was that
he was beaten by his girlfriend when she
was under the influence of alcohol and that she did not drink during
the aforesaid period
as she was breastfeeding.
[77]
Secondly, the Applicant’s case is
that the arbitrator failed to have regard to the fact that the
Applicant was only required
to prove its case on a balance of
probabilities and in doing so, she ignored factors which tipped the
scale of probability in favour
of the Applicant’s version.
[78]
The Applicant’s case is that the
Respondent’s sick leave patterns raised suspicion and the
arbitrator ignored the fact
that the Applicant visited different
doctors on different occasions. This fact was not ignored by the
arbitrator, she found that
it raised grounds for an investigation but
was not proof of dishonesty or misuse of sick leave.
[79]
The Applicant further submitted that the
Respondent failed to justify how his attendance improved from October
2015 until March
2016 in circumstances where his girlfriend, who
abused him when she was drunk, drank a lot over the festive season,
yet that was
when his attendance improved. During December when his
girlfriend abused him the most, his attendance was good. These
submissions
are not supported by the evidence in the transcribed
record and once again the Applicant’s case is based on an
assumption
and not on the facts as they were presented. The
Respondent’s undisputed evidence was that his girlfriend did
not drink during
the period October 2015 until February 2016 as she
was breastfeeding.
[80]
This ground for review is also without
merit.
[81]
There is no merit in the Applicant’s
complaint that had the arbitrator borne the standard of proof in
mind, she would have
reached the conclusion that the Applicant had
proved its version on a balance of probabilities.
Conclusion
[82]
I have to consider the grounds for review
within the context of the test that this Court must apply in deciding
whether the arbitrator's
decision is reviewable. The ultimate
question is whether holistically viewed, the decision taken by the
arbitrator was reasonable
based on the evidence placed before her.
[83]
The Applicant has to show that the
arbitrator arrived at an unreasonable result.
[84]
In
Bestel
v Astral Operations Ltd and Others
[7]
the LAC considered the limited scope possessed by this Court to
review an arbitration award and accepted that an arbitrator’s
finding will be unreasonable if the finding is unsupported by any
evidence, if it is based on speculation by the arbitrator, if
it is
disconnected from the evidence, if it is supported by evidence that
is insufficiently reasonable to justify the decision
or if it was
made in ignorance of evidence that was not contradicted. The LAC held
that:
‘…
.the
ultimate principle upon which a review is based is justification for
the decision as opposed to it being considered to be correct
by the
reviewing court; that is whatever this Court might consider to be a
better decision is irrelevant to review proceedings
as opposed to an
appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected.’
[85]
Considering the evidence before the
arbitrator holistically, the arbitrator’s findings are not
disconnected from the evidence,
but in fact it is based on the
evidence presented and her findings fall within a range of reasonable
findings.
[86]
I must ascertain whether the arbitrator
considered the principal issue before her, evaluated the facts
presented and came to a conclusion
that is reasonable.
[87]
I have considered this question after
perusal of the transcribed record, the arbitration award and the
grounds for review raised
by the Applicant. The arbitrator’s
findings fall within a band of reasonableness based on the evidence
that was placed before
her and there is no basis for this Court to
interfere with it on review. The arbitrator did not misconceive the
enquiry but indeed
determined the principal issue that she was
required to determine.
[88]
This Court has a wide discretion in respect
of costs. In view of the fact that there is an ongoing relationship
between the parties
and given the specific facts of this application,
the interest of justice will be best served by making no order as to
cost.
[89]
In the premises, I make the following
order:
Order
1.
The application for review is dismissed;
2.
There is no order as to costs.
______________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Representatives:
For the
Applicant:
Cliffe Dekker
Hofmeyr Attorneys
For the First and Fourth
Respondents:
Cheadle Thompson & Haysom Attorneys
[1]
Act
116 of 1998.
[2]
2007
28 ILJ 2405 (CC) at para 110.
[3]
(2014)
35 ILJ 943 (LAC) at para 16.
[4]
(2014)
35 ILJ 943 (LAC) at paras 18 and 19.
[5]
Act
66 of 1995, as amended.
[6]
(2008)
29 ILJ 964 (LAC) at para 32.
[7]
[2011]
2 BLLR 129
(LAC) at para 18.