THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR2081/22
In the matter between:
AUTO PEDIGREE, DIVISION OF MOTUS GROUP Applicant
and
DISPUTE RESOLUTION CENTRE (MIBCO) First Respondent
COMMISSIONER MPAI NO Second Respondent
SETHINTHA JERRY MOGASHOA Third Respondent
Heard : 4 February 2025
Delivered : 4 February 2025
Summary : Application to review and set aside award . Application dismissed.
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JUDGMENT
DANIELS J
Introduction
[1] This is an application brought to review and set aside the arbitration
award issued by the second respondent ( hereafter the “commissioner”)
on 5 September 2022 , under case reference MIPT33375 . The
commissioner found that the dismissal of the third respondent was
substantively fair, but procedurally unfair.
Review applications: General remarks
[2] The arbitration process and the resulting arbitration award both constitute
administrative action. Section 33(1) of our Constitution requires all
administrative action, including the arbitration process conducted under
section 145 of the LRA, to be lawful, reasonable, and procedurally fair.
[3] It was in this context that the Constitutional Court fashioned the
appropriate review test1 in relation to arbitration awards , issued under
section 145 of the LRA, in the following terms: is the arbitration award
one which no reasonable commissioner could reach on the material
before him or her ? The test has come to be known as the “ Sidumo test”
or the “reasonableness test.”
1 Sidumo and another v Rustenburg Platinum Mines Ltd and others (2007) 28 ILJ 2405 (CC)
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Background facts
[4] The third respondent was employed by the applicant, as a branch
manager, until he was dismissed for misconduct. There is no need to
recite the facts related to the misconduct for which the third respondent
was dismissed, suffice to state that he was found guilty of three charges
(of the four charges levelled against him); each of which related to
serious misconduct involving gross insubordination, gross negligence,
and dishonesty. As the commissioner indicated, each of these charges
would have sufficed to find that the third respondent’s dismissal was
substantively unfair.
[5] The third respondent failed to attend his internal disciplinary hearing,
which had earlier been postponed due to ill health. On the final occasion,
on 27 October 2021, the third respondent represented that he was sick
once again. T he applicant required him to attend the hearing, to be
conducted virtually, to explain why he was so sick that he could not
proceed with the hearing. The third respondent failed to do so, and
instead submitted a medical certificate. The applicant took the view that
the third respondent was not sick, and merely wished to obstruct the
disciplinary process. The disciplinary hearing proceeded in the absence
of the third respondent. He was found guilty of the charges against him,
and dismissed.
[6] The third respondent challenged the fairness of his dismissal at the
Dispute Resolution Centre (“DRC”) of the Motor Industry Bargaining
Council. To repeat, t he commissioner found that the dismissal of the third
respondent was substantively fair but procedurally unfair. The
commissioner awarded him one and half months’ salary as
compensation for the procedural unfairness.
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Proceedings in the Labour C ourt
[7] The third respondent filed a notice of opposition on 17 November 2023,
many months after the applicant’s supplementary affidavit was delivered,
on 16 March 2023.
[8] The Rules of the Labour Court are clear . The third respondent must
deliver his answering affidavit within ten (10) days of receipt of the
supplementary affidavit , or the notice to abide .
[9] In his notice of opposition , the third respondent seeks condonation for
the late opposition, and further seeks an order reviewing and setting
aside the arbitration award. The third respondent attaches to the notice ,
an affidavit in which he purports to oppose the review application , bring
his own review application, and seek condonation for the late opposition .
In essence , in his affidavit :
9.1 The third respondent states that he lacked funds to bring a review
application himself and h e lacked funds to oppose the review at the
time when he should have filed an answering affidavit.
9.2 His affidavit lacks sufficient detail explaining the extremely lengthy
delay. In addition, a lack of funds, without more, is inadequate.
9.3 The third respondent never explains where he ultimately secured
funds, nor why such funds were not secured earlier.
9.4 The third respondent does not explain why he could not oppose the
review application himself given that h e was not a blue-collar worker
- but a branch manager of a large corporate entity.
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[10] In the circumstances, the delay is lengthy, and the explanation extremely
poor. On this basis alone, condonation is denied to the third respondent,
and he may not oppose the review application . It is not in the interests of
justice to grant condonation.
[11] Insofar as the third respondent’s notice of opposition, and supporting
affidavit, purports to be a separate or independent review application,
that application ought to have been brought within six weeks of the
arbitration award, issued on 5 September 2022. Instead , the application
was brought on 17 November 2023, more than one year later. There is
no reason provided for this extremely lengthy delay. Condonation, insofar
as it is sought for the late filing of the review application , of the third
respondent, is dismissed .
Arbitration award: procedural unfairness
[12] The commissioner found that the dismissal of the third respondent was
procedurally unfair. The commissioner arrived at this conclusion for two
reasons: (1) the disciplinary hearing proceeded in the absence of the
third respondent when this was unfair , and (2) the third respondent had
requested the documents to be used at the hearing but did not receive
them. The commissioner points out that the third respondent’s version ,
regarding the documents, was undisputed.
Analysis of the grounds of review
[13] The applicant states that the commissioner unreasonably found that the
disciplinary hearing should not have proceeded in the absence of the
third respondent. The commissioner failed to consider that the hearing
was scheduled to proceed virtually , and the third respondent could
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therefore have attended to explain that he was ill. Instead, says the
applicant, the third respondent submitted a medical certificate – and
failed to attend.
[14] If the commissioner indeed failed to consider that the hearing was virtual,
this would likely have been problematic . However, the review process is
an outcome -based process and , to justify a review, the outcome itself
must be unreasonable. The reasoning of the commissioner is not
particularly important within this prism. Here, t he applicant required the
third respondent to attend the hearing, albeit virtually, to explain his
illness. The commissioner reasonably considered that, if third respondent
was sick, he may not have been able to attend, even if this was just to
explain his sickness. In that context, the finding of procedural unfairness
was not so unreasonable that no reasonable decisionmaker could have
arrived at such decision.
[15] More importantly, the commissioner (also) found the dismissal was
procedurally unfair because the applicant refused or failed to provide the
third respondent with documents prior to the disciplinary hearing. The
applicant fail ed to deal with this issue in its founding and supplementary
affidavits. If the hearing had proceeded, without the third respondent
being provided with the documents he had requested , he may have been
prejudiced. The finding of procedural un fairness , in those circumstances ,
was not so un reasonable that no reasonable decisionmaker could have
reached it .
Conclusion
[16] In the circumstances, I cannot find that the arbitration award was so
unreasonable that no reasonable decision maker could have reached
that conclusion. Accordingly, t he application is dismissed .
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Reynaud Daniels
Judge of the Labour Court of South Africa
Appearances :
For the Applicant :
[INSERT]
For the Third Respondent :
[INSERT]