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[2025] ZALCCT 10
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Groenewald v Commission For Conciliation, Mediation and Arbitration (C99/2022) [2025] ZALCCT 10 (6 February 2025)
FLYNOTES:
LABOUR – Dismissal –
Gross
dishonesty
–
Regarding
validity of Fidelity Fund Certificate – Inherent requirement
of job – Withheld material information
regarding FFC status
– Supported by evidence – Withholding of information
and misrepresentation about renewal
process amounted to misleading
company – Non-compliance with EAAB’s requirements was
substantial – Arbitration
award well supported by evidence –
No proper grounds to disturb award – Application dismissed
THE
LABOUR COURT OF SOUTH AFRICA
HELDAT
CAPE TOWN
Not
reportable
Case
No:
C99/2022
In
the matter between:
LANA
GROENEWALD
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
S
HARRIS
N.O.
Second Respondent
TIMES
SQUARE MARKETING (PTY) LTD
Third Respondent
Date
of Set Down: 27 June 2024
Date
of Judgment:
This judgment was
handed down electronically by circulation to the parties’ legal
representatives by email, publication on
the Labour Court website and
release to SAFLII. The date and time for handing down judgment is
deemed on 6 February 2025.
JUDGMENT
VAN
VOORE AJ
1.
Lana Groenewald (
the
applicant
) was
previously employed by Time Square Marketing (Pty) Ltd, the third
respondent. The applicant was dismissed by the third respondent.
The
applicant referred an alleged unfair dismissal dispute to the
Commission for Conciliation, Mediation and Arbitration (the
CCMA
).
2.
In an arbitration award under CCMA
case number WECT 16020-2021 (
the
arbitration award
)
the second respondent (
the
Commissioner
)
determined that the applicant’s dismissal was substantively and
procedurally fair. The arbitration award is dated 22 January
2022.
3.
The applicant launched an application
under section 145 of the Labour Relations Act, 1995 (as amended) (
the
LRA
) to,
inter
alia
, review and
set aside the arbitration award.
4.
The stated grounds of review are the
following:
4.1
The commissioner committed misconduct in relation to the
duties of the commissioner as arbitrator by failing to consider all
the
facts presented in the matter and by not reasonably applying her
mind to these facts.
4.2
Alternatively, the commissioner committed a gross
irregularity in the conduct of the arbitration proceedings by failing
to consider
the weight of the submissions made [by the applicant] and
for failure to reasonably apply her mind and consider all the
relevant
facts present in this case.
4.3
The award is one that a reasonable decision maker could
not reach.
5.
The applicant was appointed as Office
Manager of the third respondent’s Claremont office with effect
from 1 October 2021.
The applicant commenced employment on 4 October
2021. This was subsequent to an application for the post and two
interviews.
6.
On 17 November 2021 the third
respondent issued the applicant with a notice to attend a
disciplinary hearing. The allegation levelled
against the applicant
was in the following terms:
“
Gross
dishonesty, in that on 20 September 2021 you made a false statement /
representation regarding the validity of your Fidelity
Fund
Certificate.”
7.
The disciplinary hearing took place
on 22 November 2022. The applicant was found guilty of serious
misconduct
[CHECK]
and was subsequently dismissed.
8.
In the arbitration award the
Commissioner records,
inter
alia
, the
following:
“
28.
The charge
put
to
the applicant as per the notice to attend a disciplinary hearing was
stated as follows:
“
Gross
dishonesty, in that on 20 September 2021, you made a false statement
/ representation regarding the validity of your Fidelity
Fund
Certificate.”
9.
The Commissioner determined that the
third respondent had discharged the onus to prove that the dismissal
of the applicant was substantively
fair. In the arbitration award the
commissioner records the following: “
31.
I find that the dismissal was procedurally and substantively fair.”
The Arbitration Award
10.
In the arbitration award and under
the heading “
ANALYSIS
OF EVIDENCE AND ARGUMENT”
the
arbitrator records,
inter
alia
, the
following:
“
28.
The charge put to the applicant as per the notice to attend a
disciplinary hearing was stated as follows:
“
Gross
dishonesty, in that on 20 September 2021, you made a false statement
/ representation regarding the validity of your Fidelity
Fund
Certificate.”
The
respondent from the onset of the arbitration and throughout argued
that
the
applicant was dishonest in that she did not disclose that she did not
have a valid FFC. This argument was short-lived after
the testimony
of the respondent’s second witness, who testified that the
applicant was employed with the understanding that
it would take her
a few days to make her application for renewal
of
her FFC for 2021.
This testimony was a clear indication that the respondent accepted
that she did not have it but that she will
make application to renew
it, which according to her would only take a few days. This was
certainly not the case. With this evidence
I find that the applicant
was not
dishonest when she said she did not it, but rather that she was not
open and upfront as to why she did not yet have it.
She also did not
make the respondent aware of the challenges she was experiencing in
finalising her business affairs, in order
to get her FFC. This can
certainly be seen as misrepresentation
.
29.
The applicant
did not dispute that she did not tell the respondent that her
business affairs was not up to date and finalised
.
It was only after her appointment that it became known to the
respondent. The applicant was aware of the importance of this
document
and in all probability knew that if she made her challenges
known to the respondent, her chances of employment may be
limited
.
On the day of her second interview / meeting, 21 September 2021, she
became aware that her accountant passed away. She made no
mention of
this to the Manager. Surely the applicant would have known that this
was going to cause a further delay in finalising
her business
affairs. The applicant with all her experience in the estate agency
business knew the importance of the FFC document
in order to comply
with the EAAB regulations however chose not to inform the respondent
about this at any of the two meetings she
had with the respondent
before she was officially appointed.
In
this regard I find that the applicant withheld crucial information
from the respondent that could very well have led to a different
decision in respect of the offer made to the applicant. I find that
the applicant misled the respondent when she stated that all
she
needed was to do a renewal of her FFC. This I find is tantamount to
misrepresentation
.”
(emphasis added)
11.
The facts that served before the
arbitration proceedings included the following:
11.1
The applicant attended an
interview with the third respondent’s Pieter Janse van Rensburg
(
Janse
van Rensburg
)
and Graham Ross (
Ross
)
on 20 September 2021 and a second interview with Ross on 21 September
2021. The interview of 20 September 2021 took place virtually.
[1]
11.2
During the interview of 20 September 2021, the applicant
was asked whether she was in possession of a valid Fidelity Fund
Certificate
for 2021.
11.3
It is an inherent
requirement of the position of Office Manager that the person
appointed to that position has a valid Fidelity
Fund Certificate. The
duties and obligations associated with the position includes signing
off on deeds of sale and lease agreements.
In addition, the incumbent
would operate as an agent, principal or manager.
[2]
11.4
During the second
interview of 21 September 2021, the applicant and the third
respondent’s Ross discussed the issue as to
a valid Fidelity
Fund Certificate. The applicant informed the third respondent that
she was busy with the process of renewal in
order to obtain a new
certificate for the 2021 and 2022 year.
[3]
11.5
The applicant was offered the position of Office Manager
and commenced employment on 4 October 2021.
11.6
The applicant’s
information and credentials were sent to the third respondent’s
Adri Calitz (
Calitz
).
Calitz assists the third respondent’s employees in applications
for Fidelity Fund Certificates. During the process of considering
the
applicant’s information and credentials Calitz learned that the
applicant’s account with the Estate Agency Affairs
Board of
South Africa (
EAAB
)
was blocked due to not
submitting audits and for this reason the applicant did not have a
valid Fidelity Fund Certificate.
[4]
11.7
The third respondent was
informed by the EAAB that it needs documentation: an affidavit
furnishing reasons or circumstances for
the applicant’s
non-compliance and reasons why the EAAB should issue the applicant
with a Fidelity Fund Certificate; an Audit
Report and Financial
Statement and a Tax Clearance Certificate of the company of which the
applicant had been a principal.
[5]
11.8
The third respondent was
informed by the EAAB that its system records that the applicant was
last issued with a Fidelity Fund Certificate
in 2020 and that it, the
EAAB, had no record that the applicant had renewed\ her Fidelity Fund
Certificate for 2021.
[6]
11.9
During various email
communications between the applicant and the third respondent over
the period 4 to 7 October 2021 the applicant
informed the third
respondent that her auditor and her accountant had passed away and
that the applicant had to submit audits to
the EAAB and that audits
for a period of 2 years were outstanding.
[7]
11.10
During the interviews that took place between 20 and 21
September 2021 the applicant did not inform the third respondent that
her
account with the EEAB relevant to a Fidelity Fund Certificate had
been blocked due to outstanding audits and non-compliance with
the
EAAB’s requirements.
11.11
During the period 4 to 7
October 2021, it became apparent that the process to be followed by
the applicant as required by the EAAB
for the issuing of a Fidelity
Fund Certificate would take significantly more time than a few
days.
[8]
11.12
By November 2021 the
applicant had not resolved her non-compliance with the EAAB
requirements.
[9]
11.13
The applicant has been in the industry for several years
and knows the importance of being in possession of a Fidelity Fund
Certificate.
12.
The arbitration award in relation to
evidence in the arbitration proceedings records,
inter
alia
, the
following:
“
6.
The applicant was appointed as Office Manager following an interview
process that was held via Zoom on 20 September 2021. Present
at the
interview was Mr Pieter Janse van Rensburg and Mr Graham Ross.
7.
It was the respondent’s case that at the interview process, the
applicant was asked a series of questions which included
her
qualifications, past experience, history and background of herself
including whether she was in possession of a valid FFC for
2021. It
is the respondent’s
case
that the applicant
confirmed that she was in possession of a valid FFC for 2021. It
further stated that they were satisfied with
the interview.
8.
On 21 September 2021, Mr Ross had another meeting / interview with
the applicant, where he confirmed with the applicant that
the
respondent is happy with the outcome of the interview, and would like
to offer her the
position
of Office Manager at
the Claremont Branch. Mr Ross again reiterated that he asked the
applicant again on that day about her FFC,
to which she confirmed
that it was just a matter of renewal. This renewal should be for
2022.
[CHECK]
…
10. On 4 October 2021,
the first day the applicant officially started, all her information
and documents / credentials were emailed
to Adri Calitz, (“Adri”)
another Manager, for employee information capturing. Adri is also the
dedicated employee for
the respondent who assists with applications
for FFC’s for all agents. It was through this process that it
became apparent
that the applicant was not in possession of a valid
FFC for 2021.
11. On the same day
Adri followed up further and contacted the EAAB and the response
received was that the applicant did not have
any pending registration
/ application under her FFC and that her account is blocked.
12.
On the morning of 7 October 2021, after a call to the EAAB,
Adri
advises the
applicant via email, that her account was blocked due to her
non-compliance and that a number of documents and payments
would be
required before her account would be opened again in order for her to
make application for renewal of FFC for 2021 and
subsequently 2022.
Adri offered to assist her.
13.
It’s the respondent’s case that it is with this email
that for the first time the applicant confirms / declares
that she
did not renew her FFC for 2021 and also then stated that her auditor
and accountant had both passed on and that
she
will follow up on
the finalisation of the documents she required in order for her to
make application for her FFC for 2021. It was
the respondent’s
case that the applicant at no point advised them of this therefore
she was dishonest and misled the respondent.
14.
Two weeks later, on 22 October 2021, after a follow up email from Mr
Ross on the status of her renewal for FFC 2021, the applicant’s
response continues to deal with the challenges she faces with the
finalization of her previous audits and financials as a result
of the
passing of the auditor and accountant and the subsequent appointments
of
the
new auditor and accountant. It was Mr Ross’s case that when it
first came to his attention on 4 and 7 October 2021, the
applicant
advised him that it will only take a few days to sort out. It now
appeared that it could take a few months before it
will all be sorted
which renders the applicant unable to fulfill the tasks that she was
initially employed for.
15.
On 2 November 2021, another follow-up email to the applicant by Mr
Pieter Van Rensburg, with regards to the
applicant’s
renewal of her FFC
for 2021, her response was very much on the same that the audits /
financials were not yet complete and that
there was a struggle to
balance October 2020 at that stage. It was the respondent’s
case that if the applicant had complied
with keeping her records up
to date on a monthly basis, she would not be facing the challenges
she was experiencing now. It was
also the respondent’s case
that the extent of what has become apparent to it is the reason why
the applicant was not open
and honest about her full compliance in
that she did not have a valid FFC for 2021. She was dishonest about
it and at no point
did she disclose the reason why she did not have
it. The applicant was referred by Jennings Consulting, a reputable
employment
agency, therefore there was no reason for the respondent
to suspect any dishonesty from the applicant. The applicant was a
professional
person who for many years managed her own business.
There was no reason to believe that she would withhold critical
information
from the respondent.
…
20.
The applicant stated that at the interview she informed the
respondent that she was not in
possession
of a valid FFC for
2021. She stated that she closed her company and confirmed that her
FFC for 2021 will be in her company name
and that her FFC in for 2022
will be in the name of the respondent as this will just be a matter
of renewal.
21.
The
applicant
further testified
that on 21 September 2021, she again confirmed at a meeting with Mr
Graham Ross, that she is not in possession
of a valid FFC for 2021.
It was also the applicant's case that at another meeting with the
respondent after he appointment, Mr
Pieter van Rensburg asked her to
bring over agents from her company to which she responded that she
would first need to wrap up
all outstanding business including
payments in order to get her FFC. It is the applicant's case that the
respondent was fully aware
of her FFC status at the time the
respondent made an offer of employment to her. She was not dishonest
and she declared that she
was not in possession of a valid FFC for
2021. It was also not on her CV that she had a valid FFC for 2021,
therefore it was her
case that the employment agency was also aware
that she did not have it.
22. The applicant
further testified that she found it strange when a copy of her FFC
was requested by the respondent’s Adri.
At this stage she
thought that Mr Graham Ross had not advised her that she is not in
possession of her valid FFC for 2021.
23.
In the email responses to the respondent the applicant then explained
that her account was blocked at the EAAB
as
they were waiting on
the deregistration of her company. She further explains that her
auditor and accountant had passed on during
2021 and that she is in
the process of finalising her financials in order for her to renew
her FFC for 2021 and 2022. It was her
case that she told the
respondent that she would have everything wrapped up and finalised,
including having a valid FFC for 2021
by latest end of October 2021.
24. The applicant
further argued that if the respondent attached so much weight to her
being in possession of her valid FFC for
2021, why did they not ask
her for a copy at the time of her interview. Why was a timeframe for
her to get it not included in her
contract of employment, in fact she
argued why was she even offered employment while they were fully
aware that she did not have
it. It was her case that the reason for
this was because they knew she did not have it and they were prepared
to wait until end
October 2021. It is for this reason that she
believes that her dismissal was unreasonable and unfair.”
13.
The facts that served before the Commissioner
include the following:
13.1
it
is an inherent
requirement for the position of Office Manager that the appointed
person is in possession of a valid Fidelity Fund
Certificate;
13.2
during
the interview
process the applicant informed the third respondent that a renewal of
her Fidelity Fund Certificate would take a matter
of days;
13.3
the applicant was not in fact in possession of a valid Fidelity Fund
Certificate
for the period 2021 / 2022;
13.4
the applicant’s account with the EAAB was blocked due to
non-compliance;
13.5
the applicant’s non-compliance with the EAAB’s
requirements included
that there were outstanding documents and
information including audit reports and financial statements of a
company of which the
applicant had been a principal;
13.6
the applicant was an experienced estate agent and appreciated that
the delays in
the winding up of the affairs of her previous company
would impact on her ability to obtain a valid Fidelity Fund
Certificate;
and
13.7
by November 2021 the applicant’s non-compliance with the EAAB
requirements
had not been resolved.
14.
Those facts were not in any serious dispute.
Relevant Legal
Principles
15.
The relevant legal principles are
well known. Those principles were restated in
Herholdt
vs Nedbank Ltd and Congress of South Africa Trade Union
2013(6) SA 224 (SCA)
[2013 (11) BLLR
1074
(SCA)]. In that matter the court held:
“
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
proceedings falls in one of the grounds in S145(2)(a) of the LRA. For
a defect in the conduct of
the
proceedings
to amount to gross irregularity as contemplated by s145(2)(a)(ii),
the arbitrator must have misconceived the nature
of the enquiry 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 particulars facts,
are not in and of themselves sufficient for an aware to be set aside,
but are only of any
consequence if the effect is to render the
outcome unreasonable. (paragraph 25).”
16.
In the matter of
Nyathikazi
vs Public Health and Social
Development Bargaining Council and others
(2021) 42 ILJ 1686 and at paragraph
21 the court held:
“
[21]
After the decision on Sidumo and another vs Rustenburg Platinum Mines
Ltd and another
2008 (2) SA 24
CC and the further explication in
Heroldt vs Nedbank Limited
2013 (6) SA 224
(SCA), it is clear that
our law dictates that an award delivered by and Arbitrator will only
be considered to be unreasonable if
it is one that a
reasonable
arbitrator
could not reach on all the material that was before him or her. A
material error of fact and the particular weight to
be attached to a
particular fact may in and of itself not be sufficient to set aside
the award but will only be done if the consequence
thereof is to
render the ultimate outcome unreasonable”.
17.
In the matter of
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mining) v CCMA and Others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) and at
paragraph 21 the court held:
“
Where
the
arbitrator
fails
to have regard to the material facts it is likely that he or she will
fail to arrive at a reasonable decision. Where the arbitrator
fails
to follow proper process he or she may produce an unreasonable
outcome (see Minister of Health and Another vs New Clicks
South
Africa (Pty) Ltd and Others
2006 (2) SA 311
(CC)). But again, this is
considered on the totality of the evidence not on a fragmented, piece
meal analysis. As soon as it is
done in a piece meal fashion, the
evaluation of the decision arrived at by the arbitrator assumes the
form of an appeal. A fragmented
analysis rather than a broad-based
evaluation of the totality of the evidence defeats review as a
process. It follows that the
argument that the failure to have regard
to material facts may potentially result in a wrong decision has no
place in review applications.
Failure to have regard to material
facts must actually defeat the constitutional imperative that the
award must be rational and
reasonable – there is no room for
conjecture and guess work.”
18.
Under s138 of the LRA commissioners
are enjoined to conduct arbitration proceedings in a manner they deem
appropriate so as to determine
the dispute fairly and quickly.
Commissioners are to deal with the substantial merits of the dispute
with the minimum of legal
formalities.
19.
In
CUSA
v Tao Yang Metal Industries and Others
[2009]
1 BLLR 1
(CC) the court held:
“
64.
Consistent with the objectives of the LRA, commissioners
are
required
to “deal with the substantial merits of the dispute with the
minimum of legal formalities.
65. This requires
commissioners to deal with the substance of a dispute between the
parties. They must cut through all the claims
and counterclaims and
reach for the real dispute between the parties. In order to perform
this task effectively commissioners must
be allowed a significant
measure of latitude in the performance of their functions. Thus the
LRA permits commissioners to “conduct
the arbitration in a
manner that the commissioner considers appropriate. But in doing so,
commissioners must be guided by at least
3 considerations. The first
is that they must resolve the real dispute between the parties. They
must do so expeditiously. And,
in resolving the labour dispute, they
must act fairly to all the parties as the LRA enjoins them to do”.
20.
It is in light of these principles
that the commissioner’s award and the arbitration proceedings
ought to be assessed.
21.
The review test has been recently
restated in the matter of
Makuleni
v Standard Bank of SA (Pty) Ltd
& Others
(2023)
44 ILJ 1005 LAC. In Makuleni the Court restated the review test as
follows:
“
[4]
The
import
of
these remarks demands a reflection in order to digest the essence of
the exercise that a commissioner embarks upon. The court
asked to
review a decision of commissioner must not yield to the seductive
power of a lucid argument that the result could be different.
The
luxury of indulging in that temptation is reserved for the court of
appeal. At the heart of the exercise is a fair reading
of the award,
in the context of the body of evidence adduced and an even-handed
assessment of whether such conclusions are untenable.
Only if the
conclusion is untenable is a review and setting aside warranted.
…
[13] The Labour
Court’s view of the case differed from that of the
commissioner. As shall be addressed hereafter there are
serious flaws
in the reasoning articulated in the judgment. However, what is
immediately deserving of emphasis is that, even if
the perspective of
the Labour Court is plausible and reasonable, that is an insufficient
reason to displace the award in terms
of the review test addressed
above. To meet the review test, the result of the award has to be so
egregious that, as the test requires,
no reasonable person could
reach such a result. In our view, no material criticism can be
advanced of the award that meets the
threshold test for review.”
22.
In the matter of
Securitas
Specialised Services (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration & Others
(2021)
42 ILJ 1071 (LAC) the Court held:
“
[19]
The test for review is this: “Is the decision reached by the
arbitrator
one
that
a reasonable decision maker could not reach?” To maintain the
distinction between review and appeal, an award of an arbitrator
will
only be set aside if both the reasons and the result are
unreasonable. In determining whether the result of an arbitrator’s
award is unreasonable, the Labour Court must broadly evaluate the
merits of the dispute and consider whether, if the arbitrator’s
reasoning is found to be unreasonable, the result is, nevertheless
capable of justification for reasons other than those given
by the
arbitrator. The result will be unreasonable if it is entirely
disconnected with the evidence, unsupported by any evidence
and
involves speculation by the arbitrator.
[20] This court has
eschewed a piecemeal approach to a review application by the Labour
Court. The proper approach is for the Labour
Court to consider the
totality of the evidence in deciding whether the decision made by the
arbitrator is one that a reasonable
decisionmaker could make.”
23.
The Commissioner in her arbitration
award does survey and reflect on the applicant’s version and
submissions. The Commissioner
in her arbitration award then concludes
as follows:
“
I
find that the applicant withheld information from the respondent that
could very well have led to a different decision in respect
of the
offer made to the applicant. I find that the
applicant
misled
the respondent when she stated that all she needed was to do a
renewal of her FFC. This I find is tantamount to misrepresentation.”
24.
On the whole, the Commissioner
understood the substance of the alleged unfair dismissal dispute and
the allegations against the
applicant.
25.
The Commissioner’s findings
include that:
25.1
the applicant with all her experience in the estate
agency business knew the importance of the FFC document in order to
comply with
the EAAB regulations however she chose not to inform the
respondent about this at any of the two meetings that she had with
the
respondent before she was officially appointed;
25.2
the applicant withheld crucial information from the
respondent that could very well have led to a different decision in
respect
of the offer made to the applicant;
25.3
the applicant misled the respondent when she stated that
all she needed was to do a renewal of her FFC; and
25.4
this amounted to misrepresentation.
26.
There is no doubt, on the facts that
served before the arbitration proceedings, that the applicant did not
disclose material information
to the third respondent during the
interview process. That information was known to the applicant. That
information was material
to her suitability for employment as the
Office Manager. The applicant ought to have disclosed that
information to the third respondent.
The applicant withheld material
information from the third respondent. In doing so, the applicant
misled the third respondent.
27.
The applicant’s grounds of
review include that the Commissioner committed misconduct in relation
to the duties of a commissioner
by failing to consider all the facts
presented in the matter and by not reasonably applying her mind to
those facts. Alternatively,
the Commissioner committed a gross
irregularity in the conduct of the arbitration proceedings by failing
to consider the weight
of the submissions made and failure to
reasonably apply her mind to consider the relevant facts present in
the case. A further
ground of review is that the award is not one
that a reasonable commissioner could make.
28.
The crux of the Commissioner’s
determination is that the applicant misled the third respondent and
that the applicant’s
conduct amounted to a misrepresentation.
29.
Whilst it is so that the Commissioner
found that the applicant was not dishonest, the Commissioner
nonetheless finds that the applicant
withheld information, that the
applicant misled the respondent and that this amounted to
misrepresentation.
30.
The Commissioner determined as a fact
that the applicant withheld information from the respondent. That
finding of the Commissioner
is properly grounded in the evidence that
served before the arbitration proceedings.
31.
The facts that served before the
arbitration proceedings form a proper basis for the determination of
the Commissioner that the
applicant withheld material information
from the third respondent. In those circumstances, it cannot
reasonably be contended that
the Commissioner committed a material
error of fact.
32.
Similarly, the facts that served
before the arbitration proceedings determined that rather than a
renewal of the applicant’s
Fidelity Fund Certificate taking a
few days, the process could take several months, having already taken
a few weeks.
33.
The applicant’s contention that
at the time of appointing her the third respondent was aware that she
was not in possession
of a valid Fidelity Fund Certificate and that
for that reason she was not dishonest and had not misled the third
respondent is
misguided. The facts that served before the arbitration
proceedings establish the inherent importance of the possession of a
Fidelity
Fund Certificate and that the applicant had informed the
respondent that a renewal of her Fidelity Fund Certificate would take
a matter of days (a short period of time). The full and complete
reasons for the applicant not being able to renew her fidelity
fund
certificate were not disclosed to the third respondent. Those reasons
included that the applicant’s financial affairs
were in
material respects not in order.
34.
It cannot reasonably be contended
that the Commissioner failed to consider the weight of the
applicant’s submissions on evidence
and gave improper weight to
the third respondent’s submissions on evidence. The reward
itself surveys the applicant’s
version, her contentions and her
submissions. The extent of the applicant’s non-compliance with
the EAAB’s requirements
was substantial. On the basis of the
material that served before the arbitration proceedings, it cannot be
contended that the arbitrator
gave it improper weight.
35.
On a ‘
fair
reading’
of
the arbitration award, the applicant’s contentions as to the
Commissioner failing to consider the weight of her submissions
and
failure to give proper weight to her submissions are simply not
sustainable. On the totality of the evidence that served before
the
arbitration proceedings, the arbitration award is one that a
reasonable arbitrator could make.
36.
The applicant has advanced no proper
grounds to disturb the Commissioner’s arbitration award. The
arbitration award is well
supported by the evidence that served
before the arbitration proceedings.
37.
In the circumstances I make the
following order:
Order
1.
The review application is dismissed.
2.
There is no order as to costs.
VAN
VOORE AJ
ACTING
JUDGE OF THE LABOUR COURT
Appearances:
For
the Applicant
Attorney PR Nabal
For
the Third Respondent
Mr Kobus Hayward