THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR1633/21
In the matter between:
IDWALA HOLDINGS (PTY) LTD Applicant
and
NATIONAL UNION OF MINEWORKERS First Respondent
J BOOYSEN Second Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Third Respondent
COMMISSIONER M RABIE N.O Fourth Respondent
Heard: 22 May 2025
Delivered: 15 July 2025
JUDGMENT
SCHENSEMA, AJ
2
Introduction
[1] This is an opposed application brought by the applicant to review and set
aside the arbitration award of the fourth respondent (the Commissioner) in terms of
which it was found that the second respondent’s dismissal by the applicant was both
substantively and procedurally unfair.
[2] The applicant was further ordered to reinstate the second respondent in the
same position and on the same terms and conditions of employment that existed
prior to his dismissal , together with backpay in the amount of R33 374.08. The
reinstatement was effective from 1 June 2021.
Background
[3] The applicant has submitted that it is a mining and manufacturing operation
with mines and plants in Johannesburg, Vereeniging, Phalaborwa, Port Shepstone
and Danielskuil.
[4] The second respondent was employed at the applicant’s Danie lskuil
operations at the time of his dismissal.
[5] At all material times prior to the events leading to the second respondent’s
dismissal, the level 5 national lockdown had been declared. In light of the fact that
the applicant was deemed an essential service, it was permitted in terms of the
Disaster Management Act
1 to continue with its production of lime and limestone,
which is used inter alia for water purification, generation of electricity and in the food
and packaging industries.
[6] Owing to its designation as an essential service, the lime operation situated in
Danielskuil was permitted to continue its operations.
1 Act 57 of 2002.
3
[7] Several meetings were held at the plant during the week of 20 March 2020,
with the trade unions and employee teams to ensure their understanding that the
applicant was permitted to continue working during the lockdown and that all the
required health and safety measures had been implemented at the plant.
[8] In summary , the misconduct for which the second respondent was charged
and dismissed emanated from a voice note which the second respondent caused to
be distributed to the workforce on 26 March 2020, while the applicant was making
arrangements to continue production after the country went into lockdown during the
first wave of the COVID-19 pandemic.
[9] During the evening of 26 March 2020, the general manager , Mr Jaco
Swanepoel, received a telephone call from Mr Cornelius Mahne of the NUM regional
office. The purpose of his call was to ascertain whether the applicant’s operations
would be continuing. Mr Swanepoel explained the situation to Mr Mahne and further
agreed to meet with Mr Mahne on Sunday or Monday to discuss any further issues
that were of concern to the union.
[10] Some time later that evening, Mr Swanepoel received a voice note that had
been distributed by the second respondent , in which the second respondent advised
the applicant’s employees, ( without the applicant’s authorisation) that only the
artisans and burners would be working during the weekend and specifically
mentioned that dispatch, raw stone, quarry and crushing were not going to work. The
second respondent further informed via the voice note that the night shift would be
leaving at midnight.
[11] Mr Swanepoel , in response to the voice note in various WhatsApps ,
requested Mr Mahne to intervene. The applicant further addressed the employees on
site about the production plans , and Mr Magawu, a NUM shop steward, was also
asked to intervene.
[12] Notwithstanding the second respondent’s voice note, t he applicant’s
[12] Notwithstanding the second respondent’s voice note, t he applicant’s
management was satisfied that all employees understood that the plant would
4
continue to run. During this time, the second respondent was on sick leave and was
therefore not present during the various engagements with the employees.
[13] At midnight on 26 March 2020, four NUM members working in the quarry
department went home before the end of their shift and were subsequently issued
with warnings.
[14] The following day, the quarry manager , Mr Fitzpatrick , was informed by Ms
Potelo, a supervisor, that the employees were not working as they sought clarity in
respect of the voice note which had been circulated by the second respondent. After
being addressed by Mr Swanepoel, the employees returned to their workstations.
[15] Despite the employees returning to their workstations , the second respondent
and Mr Magawu, the NUM branch secretary , began to address the employees and
informed them that they must not work until they had received “in black and white”
the authorisation for the applicant’s operations to continue. Mr Fitzpatrick attempted
to intervene the second respondent’s address for the purpose of informing him that
the applicant was in possession of the certificate, but the second respondent refused
to let him speak.
[16] By this stage, more than four hours of production had been lost, and the
second respondent was subsequently suspended and charged with incitement and
gross insolence and dismissed on 3 June 2020 at the conclusion of a disciplinary
enquiry.
[17] It is common cause that the second respondent was on sick leave from 20
March 2020 and that he was still on sick leave on 26 March 2020. As a result of his
absence, the second respondent had not participated in any of the meetings the
applicant had held in respect of the lockdown preparations.
The award
[18] The Commissioner determined that , on a balance of probabilities , the
dismissal of the second respondent was procedurally and substantively unfair.
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[19] The procedural unfairness finding was confined to the second respondent’s
objection concerning the internal chairperson’s reliance on a letter that had not been
introduced during the disciplinary enquiry for purposes of determining a sanction.
Given that the second respondent was not granted an opportunity to respond to the
document in question, the dismissal was rendered procedurally unfair.
[20] In terms of substantive fairness, the Commissioner’s analysis of the evidence,
arguments and findings which dealt with the three charges individually , can be
summarised as follows:
Charge 1
20.1 In respect of charge one, the Commissioner determined that it was
common cause that the second respondent sent out the voice note on 26
March 2020;
20.2 It was further common cause that, in light of the National lockdown,
NUM sought clarity from the applicant as to the status of the applicant’s
business and whether it was permitted to continue operating. NUM further
requested confirmation of the permission granted to the applicant in writing;
20.3 In response to the request, the applicant informed NUM that , given the
essential service status of the business , it was not required that it apply for
permission to continue operating. The Commissioner records at paragraph 57
of his a ward that despite the applicant’s essential service status, this did not
detract from the fact that the uncertainty remained as to the status of the
applicant;
20.4 The Commissioner rejected the applicant’s argument that there was no
basis for NUM to engage with the applicant on its operation before the
commencement of the lockdown. The Commissioner held the view that it is
the union’s duty to ensure compliance with laws affecting the well- being of its
members;
20.5 On 26 March 2020, while the second respondent was on sick leave, he
was contacted by Mr Magawu regarding the matter of a permission letter for
the applicant in respect of the lockdown period, which he was asked to
the applicant in respect of the lockdown period, which he was asked to
address with Mr Mahne, the Regional Secretary of NUM;
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20.6 Mr Mahne communicated as to what he thought was an agreement
between himself and Mr Swanepoel. Mr Mahne subsequently instructed the
second respondent to communicate with NUM’s members. The second
respondent complied by sending the voice note;
20.7 The voice note reflects that there was an agreement between Mr
Mahne and Mr Swanepoel that only artisans and burners would w ork from
midnight on 27 March 202 and that there would be further engagement with
the applicant’s management and NUM over the weekend;
20.8 The dispute relates to whether Mr Mahne and Mr Swanepoel reached
an agreement on the terms as explained in the voice note. Mr Swanepoel
denied that he had reached such an agreement with Mr Mahne and that both
parties conceded during the proceedings that there may have been a
misunderstanding. The Commissioner further records at paragraph 61 that it
would not be fair for the second respondent t o bear the brunt for the
misunderstanding between Mr Mahne and Mr Swanepoel;
20.9 The applicant submitted through its evidence that the second
respondent had not conveyed the message as he had received it from Mr
Mahne. This, the Commissioner disagrees with on the basis that he accepted
Mr Mahne’s evidence that the voice note contained the correct message and
therefore accepted that the second respondent had simply carried out the
instruction he had received from Mr Mahne;
20.10 The applicant was adamant that the second respondent was in no
position to communicate such a decision (as contained in the voice note) and
that the applicant would never use NUM or its shop stewards to communicate
instructions. The Commissioner in this regard is of the view that the second
respondent was not acting on his own behalf but on behalf of NUM , and as
the branch chairperson, he was entitled to execute his union responsibilities
without having to defer to the applicant;
20.11 In summary, the Commissioner considers the applicant’s opposition to
20.11 In summary, the Commissioner considers the applicant’s opposition to
this version as ‘ tantamount to denying the union the right to check the
respondent’s (applicant’s) compliance with legislation’; and
20.12 The applicant had failed to demonstrate through its evidence that the
voice note was sent to encourage the employees ‘to participate in unlawful
conduct by withholding their labour ’ and that NUM through its actions was
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merely acting in the interests of its members to ensure their safety and
wellbeing and found the second respondent not guilty of charge 1.
Charge 2
20.13 The second respondent had been on sick leave when he was
instructed to come to site to address the members on 27 March 2020. The
purpose of the address was for the second respondent to provide clarity to
NUM’s members, in respect of the voice note that he had sent out on 26
March 2020;
20.14 At the time of the meeting on 27 March 2020, the second respondent
had yet to receive the “permission” letter from the applicant that it was
permitted to operate during the lockdown;
20.15 Mr Mahne had not communicated to the second respondent that there
had been a mis understanding in respect of the agreement reached with Mr
Swanepoel that gave rise to the voice note;
20.16 In light of the misunderstanding and the fact that the second
respondent was not aware of this misunderstanding, it was not unreasonable
for the second respondent to send out the voice note. This failure must be
attributed to Mr Mahne;
20.17 There is no substance to the claim that the second respondent had
incited NUM’s members in the meeting to withhold their labour . The
Commissioner bases this finding on the fact that the meeting was adjourned
when the second respondent was called by management to attend a meeting.
The Commissioner further considers it to be unfair that the second respondent
had been fetched from home whilst on sick leave to clarify the voice note and
to use the clarification he provided as a means to issue a charge of
incitement. The only person who could have clarified the misunderstanding
was Mr Mahne;
20.18 No evi dence was led by the applicant to support its charge that the
employees were incited to withhold their labour. Ultimately , had the applicant
not made the arrangements to fetch the second respondent from his home,
these events would not have occurred; and
20.19 Having considered the evidence in totality , the Commissioner
20.19 Having considered the evidence in totality , the Commissioner
determined that the second respondent was not guilty of the second charge.
Charge 3
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20.20 During the meeting on 27 March 2020, the second respondent did not
permit Mr Fitzpatrick to speak when asked to do so. T he Commissioner
determined that, notwithstanding procedures for meetings, there was no basis
for the second respondent not to have provided Mr Fitzpatrick with an
opportunity to be heard; and
20.21 Furthermore, given Mr Fitzpatrick’s position and the fact that this
occurred during the meeting, the Commissioner held the view that the second
respondent’s conduct constitutes gross insolence. In light hereof , the second
respondent was found guilty of the third charge.
Sanction
20.22 The Commissioner holds the view that the evidence demonstrates a
cordial relationship between the second respondent and Mr Fitzpatrick . This
assessment is primarily based on the fact that Mr Fitzpatrick drove the second
respondent to the exit gate, and whilst driving there, Mr Fitzpatrick was
making jokes; and
20.23 Having considered the applicant’s disciplinary code, which provides for
a written warning for insolence, that a dismissal was not appropriate and
issued a final written warning. In conclusion, the Commissioner determined
that the second respondent’s dismissal was substantively unfair.
Analysis of the award
[21] In effect, the Commissioner found that the second respondent’s conduct did
not constitute a significant operational risk to the applicant’s business and that the
second respondent’s conduct during the meeting on 27 March 2020, whilst grossly
insolent, did not justify a dismissal.
[22] The Commissioner provided no further reasons for his conclusion. He did not
state what evidence made it clear that , on a balance of probabilities , the second
respondent and his witnesses’ versions were more credible than those of the
applicant. He made no attempt to place into proper context the numerous
discussions held with the union and the employees prior to the second respondent’s
return to the workplace on 27 March 2020, with reference to what measures had
return to the workplace on 27 March 2020, with reference to what measures had
been implemented by the applicant to ensure the health and safety of all.
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[23] The Commissioner further failed to consider the impact of the second
respondent’s gross insolence, which gross insolence took place in an open forum
and was further directed at a senior manager.
[24] In short, the Commissioner failed in his primary task to properly assess the
credibility and probabilities of the respective versions.
Grounds of review
[25] The applicant holds the view that the Commissioner’s award fails to meet the
standard of reasonableness required by the authorities and denied the applicant a
fair trial for the following reasons:
25.1 The Commissioner’s conclusion that the second respondent’s
dismissal was substantively unfair, based on the premise that he merely
relayed a message on behalf of his Union at the applicant’s invitation, and that
his only fault was "rudely" interrupting the quarry manager during the meeting,
an act deemed not to have damaged the trust relationship, amounts to a
sanitised portrayal that does not align with the law, the facts or the inferences
to be drawn on for the following reasons:
25.1.1 the finding of procedural unfairness is based purely on the presiding
officer’s reference to a letter dated 20 May 2019, which indicated that the
relationship between the applicant and the shop stewards needed to be
improved. The Commissioner failed to explain how this sustained an
allegation of bias by the presiding officer, who is a layperson;
25.1.2 the Commissioner further failed to explain why NUM alleged that
reference to this document tainted the proceedings in any way;
25.1.3 the applicant does not take issue with the Commissioner’s finding that
the employee was grossly insolent, but submits that he underplayed its effect
on the assembled employees , and to take into account the context in which
this insolence occurred;
25.1.4 while trade unions might have had a right and duty to engage the
applicant before the lockdown, the Commissioner ignored the fact that
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management had gone to great lengths to do so and to explain how the
lockdown measures would affect operations at the plant;
25.1.5 the Commissioner’s finding that the employee had merely carried out
the instructions of his Union when he sent out the voice note flew in the fa ce
of the evidence led by the applicant on this issue in the following respects:
25.1.5.1 the second respondent was on sick leave at the time and had
taken no part in the discussions between management and unions which
preceded the circulation of the message. He made no effort to clarify the
position with management before circulating the voice note or addressing the
meeting he had convened without authority;
25.1.5.2 it was not possible for Mr Swanepoel to have conveyed the
detailed references set out in the voice note to Mr Ma nhe, who could not have
had such intimate knowledge of the applicant’s operation in that short period;
25.1.5.3 Mr Mahne could therefore not have dictated the message to the
second respondent. Mr Mahne did not produce notes of what he was allegedly
told by Mr Swanepoel . Furthermore, a decision to stop the entire operation
and its ability to dispatch, and therefore generate revenue, would not have
been taken during a telephone call with a union official, particularly after the
time and effort that had gone into ensuring that the applicant’s operations
continued;
25.1.5.4 the only inference to be drawn from the evidence is that the
second respondent took it upon himself to distribute the voice note with the
intention of ensuring that all employees , apart from artisans and burners ,
would stay away from work despite the clear evidence that all employees
knew that the plant would be fully operational;
25.1.5.5 the second respondent had no authority to call an impromptu
meeting with the employees, without first reporting to management; and
25.1.5.6 evidence was led that the applicant would never use the shop
stewards to convey operational decisions to the workforce.
stewards to convey operational decisions to the workforce.
25.1.6 Due to the above errors, the remaining findings drawn by the
Commissioner were inevitably unreasonable and unjustifiable in that:
25.1.6.1 there had been no ‘misunderstanding’ between Mr Swanepoel
and Mr Mahne about whether they had agreed to the contents of the voice
note. The voice note and what the second respondent conveyed at the
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meeting were clearly aimed at persuading all employees, other than artisans
and burners, from reporting for duty. This plainly amounts to incitement;
25.1.6.2 the second respondent’s conduct was not aimed at preventing
NUM from checking the applicant’s compliance with legislation. At that point,
neither the second respondent nor the union officials knew anything about the
regulations, other than that some employers would be required to shut down;
25.1.6.3 the voice note and the employee’s words in the meeting he had
convened was nothing more or less than a ‘ call to the workforce’ to withhold
their labour . As a result , the applicant’s entire operations were halted, and
significant production time was lost; and
25.1.6.4 even if Mr Fitzpatrick and the second respondent had parted on
seemingly cordial terms after the latter was suspended, the Commissioner
failed to have any regard to the employee’s flagrant disregard of
management’s authority and the lack of remorse he displayed at the
disciplinary enquiry.
[26] The applicant considers that the above reasons demonstrate that the manner
in which the Commissioner approached the matter constituted ‘misconduct in relation
to the performance of his duties as a commissioner’ and/or a ‘gross irregularity in the
proceedings’ and the authorities by misconstruing the evidence and issue before him
and the applicable law, and that the outcome was therefore unreasonable.
[27] In opposition, the first respondent takes issue with the following:
27.1 at the time of the national disaster declared by the President during
March 2020, there was uncertainty in the mind of the second respondent as to
the applicant’s entitlement to operate as an essential service;
27.2 the applicant had not produced a permit to operate as an essential
service in the days prior to the lockdown commencing, but only its application
to the Department of Mineral Resources;
27.3 the respondent considers the discussion between Mr Mahne and Mr
27.3 the respondent considers the discussion between Mr Mahne and Mr
Swanepoel as having concluded an agreement that the artisans and
employees working at the kiln were considered essential and that only they
would continue rendering services until such time as the follow-up discussions
were held;
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27.4 the finding in relation to procedural unfairness based on bias on the
part of the internal chairperson was the correct conclusion in law, which is
based on the conceded fact by the applicant’s representative that the letter
which was considered by the chairperson had not been admitted into
evidence. This letter was considered in aggravation of sanction, resulting in a
more severe sanction being imposed. The respondents should have been
permitted an opportunity to influence the chairperson’s reasoning i n this
regard by being afforded an opportunity to pose questions with regards to the
letter and to make submissions in respect thereof;
27.5 in summary given the unpredictability during this time, the fact that the
applicant was not able to produce substantial proof in the form of a permit to
operate, which proof was only produced once the lockdown had commenced,
coupled with the fact of the uncertainty, workers were concerned about their
health and entitlement to continue working;
27.6 the second respondent had simply conveyed what had been
communicated to him by Mr Mahne, and the second respondent had not been
in a position to consult with management prior to circulating the voice note, as
he was off sick;
27.7 the second respondent had received permission from the applicant to
address the employees for the purposes of providing clarity; and
27.8 as a result of the dispute of fact in relation to the discussion held
between Mr Mahne and Mr Swanepoel , there is no basis upon which the
applicant can suggest that the Commissioner ought not to have rejected Mr
Swanepoel’s evidence.
[28] In reply to the answering affidavit, the applicant takes issue with the fact that
Mr Lekhonkhobe played no part in the activities as set out in the answering affidavit ,
and no confirmatory affidavit is attached. Accordingly, a number of paragraphs
constitute inadmissible hearsay and fall to be struck out or disregarded. For the
constitute inadmissible hearsay and fall to be struck out or disregarded. For the
reasons set out below , there is no need for this Court to make a determination in
relation to the preliminary point raised by the applicant.
Test for review
13
[29] In a range of cases, starting with Sidumo and A nother v Rustenburg Platinum
Mines Ltd and Others2 and the jurisprudence that followed3, the test on review and
as set out in the matter of Herholdt v Nedbank Limited 4, the Supreme Court of
Appeal has defined with greater clarity the standard of review:
29.1 It must be established, either that the arbitrator has misconceived the
nature of the enquiry, or that they arrived at an unreasonable result.
29.2 For an award to be unreasonable, the arbitrator’s conclusion must be
one that a reasonable decision- maker could not reach on the material that
was before the arbitrator.
29.3 Material errors of fact, including errors concerning the weight and
relevance to be attached to certain facts, are only of consequence if their
effect is to render the outcome unreasonable.
29.4 If the arbitrator’s reasons provide a reasonable ‘ route’ leading towards
the conclusions, it must follow that the decision is one that could have been
reached (and in fact was) by a reasonable decision- maker. A review
application would, in such circumstances, not succeed.
29.5 Even if there are flaws in the arbitrator’s reasons, a review must still
consider whether , apart from the arbitrator’s reasons, ‘ the result is one a
reasonable decision maker could reach in the light of the issues and the
evidence’5.
29.6 A review court is required to examine the merits ‘in the round’ only.
[30] It is thus obvious that reasonableness can only be assessed with regard to
the evidence before the decision-maker.
[31] It is uncontroversial that the review test is whether an arbitrator has
misconceived the nature of the enquiry or arrived at an unreasonable result.
6 A result
2 (2007) 28 ILJ 2405 (CC).
3 Cusa v Tao Ying Metal Industries and others 2009 (2) SA 204 (CC); Fidelity Cash Management
Service v Commission for Conciliation, Mediation and Arbitration and others (2008) 29 ILJ 964 (LAC);
Herholdt v Nedbank Ltd (COSATU as amicus curiae) 2013 (6) SA 224 (SCA) (Herholdt); Gold Fields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v C ommission for C onciliation, Mediation and
Arbitration and others [2014] 1 BLLR 20 (LAC).
4 Herholdt supra.
5 Ibid at para 12.
6 SA Rugby Union v Watson and Others (2019) 40 ILJ 1052 (LAC) at para 25.
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will be considered to be unreasonable if it is one that a reasonable arbitrator could
not reach on all the material presented to him or her.7
[32] In respect of irreconcilable versions, the Labour Courts have generally held
that the duty of a commissioner mirrors that of a j udge in a trial court, as expressed
by the Supreme Court of Appeal in Stellenbosch Farmers’ Winery Group Ltd and
Another v Martell et Cie and Others
8 (Stellenbosch Farmers’ Winery):
‘To come to a conclusion on the disputed issues a court makes findings on (a)
the credibility of the various factual witnesses; (b) their reliability; and (c) the
probabilities. As to (a), the court’s finding on the credibility of a particular
witness will depend on its impression about the veracity of the witness. That in
turn will depend on a variety subsidiary factors, not necessarily in order of
importance, such as (i) the witness' candour and demeanour in the witness -
box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence,
(iv) external contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements or actions, (v) the
probability or improbability of particular aspects of his version, (vi) the calibre
and cogency of his performance compared to that of other witnesses testifying
about the same incident or events. As to (b), a witness' reliability will depend,
apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the
opportunities he had to experience or observe the event in question and (ii)
the quality, integrity and independence of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or improbability of
each party's version on each of the disputed issues. In the light of its
assessment of (a), (b) and (c) the court will then, as a final step, determine
whether the party burdened with the onus of proof has succeeded in
whether the party burdened with the onus of proof has succeeded in
discharging it. The hard case, which will doubtless be the rare one, occurs
when a court's credibility findings compel it in one direction and its evaluation
of the general probabilities in another. The more convincing the former, the
less convincing will be latter. But when all factors are equipoised probabilities
prevail.'
7 ibid.
8 2003 (1) SA 11 (SCA) at para 5.
15
[33] In Sasol Mining (Pty) Ltd v Nggeleni NO and Others 9 (Sasol Mining ), Van
Niekerk J (as he then was), after quoting the abovementioned passage from
Stellenbosch Farmers' Winery, held as follows:
‘[9] One of the commissioner’s prime functions was to ascertain the truth
as to the conflicting versions before him. As I have noted, this much the
commissioner appears to have appreciated. What he manifestly lacked was
any sense of how to accomplish this task, or which tools were at his disposal
to do so. The commissioner was obliged at least to make some attempt to
assess the credibility of each of the witnesses and to make some observation
on their demeanour. He ought also to have considered the prospects of any
partiality, prejudice or self -interest on their part, and determined the credit to
be given to the testimony of each witness by reason of its inherent probability
or improbability. He ought then to have considered the probability or
improbability of each party’s version.’
[34] The Labour Appeal Court cited and applied Stellenbosch Farmers' Winery and
Sasol Mining with approval in South African Breweries (Pty) Ltd v Hansen and
others10:
‘[16] … There are, however, two irreconcilable versions on the evidence in
relation to this question. In resolving the dispute of fact, the Commission er
was, accordingly, required to make findings on the credibility of the various
factual witnesses; their reliability; and the probabilities. The Commissioner
was, as such, obliged to assess the credibility of each of the witnesses who
testified at the arbitration, and in doing so, was required to consider the
prospects of any partiality, prejudice or self -interest on their part and the
weight to be attached to their testimony by reason of its inherent probability or
improbability. At the very least, in relation to the witnesses who testified in
favour of SAB, the Commissioner ought to have considered (i) their candour
favour of SAB, the Commissioner ought to have considered (i) their candour
and demeanour; (ii) their bias, latent and blatant compared to that of Hansen;
(iii) internal and external contradictions in their evidence; (iv) the probability or
improbability of particular aspects of their versions; and (v) the calibre and
cogency of their performance compared to that of Hansen. It is, however,
9 (2011) 32 ILJ 723 (LC) at para 9.
10 (2017) 38 ILJ 1766 (LAC).
16
clear from her award, that the Commissioner failed to consider any of these
things.’
[35] The Labour Appeal Court found that the failure by the commissioner to
conduct a proper assessment of the probabilities of the competing versions, and (as
a key part of that inquiry) the credibility of the various witnesses and versions,
amounted to a reviewable irregularity, sufficient to warrant setting aside the
arbitration award:
‘[28] To sum up, there were a number of gross irregularities in the
proceedings, which included the Commissioner’s: (a) failure to evaluate
significant common cause facts; (b) arbitrary and unreasonable rejection of
corroboratory evidence tendered on behalf of SAB; (c) disregard of Hansen’s
latent or blatant bias; and (d) unreasonable and arbitrary reliance on
documentary evidence which was shown on the unchallenged evidence to be
inaccurate and unconfirmed. But for these irregularities, the Commissioner
would have arrived at a different conclusion. The Labour Court’s approach to
the review, in my view, was to unduly defer to the findings of the
Commissioner as opposed to considering whether there were irregularities in
the proceedings, and if so whether they were material to the outcome. Thus,
had the Labour Court followed the two- stage approach to the review, as
articulated by this Court in Gold Fields , it would have concluded that the
irregularities committed by the Commissioner were material to the outcome,
and that having regard to the evidence before her, her decision was not one
which a reasonable decision- maker would have arrived it. Simply put, the
Labour Court ought to have found that the award was unreasonable as it was
entirely unsupported by the evidence.’
11
[36] In Platinum Mile Resources (Pty) Ltd v CCMA and Others12, Prinsloo J held:
‘[54] The arbitrator had to follow the approach as set out by this Court and
he had to conduct an assessment of the credibility of the factual witnesses,
he had to conduct an assessment of the credibility of the factual witnesses,
their reliability and overall assessment of the inherent probabilities of the
irreconcilable versions before him.
11 Ibid at para 28.
12 (JR 427/20) [2023] ZALCJHB 52 (1 March 2023)
17
[56] Glaringly absent from the arbitration award is an assessment of the
versions, of the credibility of the witnesses and the inherent probabilities of the
versions presented. In fact, there is no consideration of any of the factors set
out in Sasol Mining.
[57] The arbitrator merely recorded that, on a balance of probabilities, the
Applicant failed to prove that Mr Maegala was guilty of the charge. This
finding of the arbitrator is astonishing given the arbitrator’s failure to consider
the evidence holistically. There was evidence of the Applicant’s two
witnesses, which was uncontested in material respects, yet there is no
consideration of their testimony. How the arbitrator could make a finding on a
balance of probabilities without any consideration of the probabilities, is
shocking.
[58] The arbitrator failed to take cognisance of the material evidence placed
before him and he had failed to assess the totality of the evidence presented.
It was incumbent upon him to make credibility findings and to state why he
accepted one version and rejected another, which he dismally failed to do.
The arbitrator had no sense of how to accomplish this task and he failed in his
duties as arbitrator. There was no analysis in the arbitration award and
evidently, the arbitrator was wholly incapable of analysing the evidence.
[59] The essential ingredients of an assessment of the credibility of the
witnesses and the inherent probability or improbability of the versions before
him are not there in the arbitration award. The arbitrator did not undertake a
full analysis of the evidence and the probabilities as they presented
themselves during the arbitration proceedings and he did not consider the
evidence in light of the probabilities, self -interest and credibility of the
witnesses.
[60] The arbitrator was required to make a factual adjudication on the issue
of misconduct and he had to do that by considering and assessing all the
of misconduct and he had to do that by considering and assessing all the
facts placed before him. The arbitrator did none of that. Glaringly absent from
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the award is any consideration of the probability of the versions, considered
against all the evidence presented.
[67] In summary: the arbitrator failed to consider the central dispute that
served before him, he ignored relevant evidence, he failed to take into
account the totality of the evidence, he failed to conduct a proper appraisal of
the evidence, he rejected the Applicant’s version without any proper analysis
and evaluation of the evidence, and he had no regard to evidence that was
material and relevant. All of these constitute material misdirections.
[68] The relevant authorities indicate that misdirections of this sort
invariably have the consequence that an award will be unreasonable in its
result. Whether the award stands to be set aside is a second- stage enquiry
which requires an assessment of the reasonableness of the outcome. A
review court may intervene if and only if the outcome or result of the
proceedings under review represents a decision to which no reasonable
decision maker could come on the available evidence. What this requires is
for the review court to determine whether on the evidence, and regardless of
any reviewable irregularity committed by the arbitrator, the result should
nevertheless be sustained because it represents a reasonable outcome.
[69] For the reasons already alluded to supra, I am not persuaded that the
outcome of the proceedings under review can be sustained. It is
unreasonable and does not pass the test as set out in Sidumo.’
Application to the facts
[37] The common cause evidence is that the second respondent had addressed
the workers by way of a voice note, without an attempt to first clarify the situation
with management and further rudely rejected the attempt by Mr Fitzpatrick to clarify
the position during the meeting on 27 March 2020.
[38] Given the evidence of Mr Mahne and his uncontested lack of knowledge of
the applicant’s operations, it would not have been possible for him to have conveyed
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the detailed information he had to the second respondent. There was accordingly no
basis upon which the Commissioner could have rejected this evidence.
[39] The detailed voice note could further not be considered to convey a
misunderstanding given the level of detail contained therein. The second respondent
had no authority to inform the employees who would or would not be working, and
the undisputed evidence was that the applicant would never use NUM or its shop
stewards to convey messages to its workforce.
[40] The second respondent , during his testimony , confirmed that he had no
knowledge of the Disaster Management Act and applicable regulations , and due to
his absence, had not received any training in health and safety protocols .
Accordingly, the second respondent’s insistence that the applicant required a permit
(despite the applicant being considered an essential service) was baseless.
[41] The Commissioner fails to evaluate the credibility of the evidence of the
second respondent or Mr Mahne. Furthermore, given its essential service status, it
would have been improbable and nonsensical for the applicant to have agreed to
what was stated in the voice note.
[42] The failure by the Commissioner to conduct a properly reasoned analysis of
the credibility of the respective versions resulted in a gross irregularity that taints the
entire award.
[43] The oral evidence, together with the bundle of documents , does not support
the Commissioner’s conclusions that , on a balance of probabilities , the applicant
failed to discharge its onus in proving the second respondent’s dismissal as being
procedurally and substantively fair.
[44] Furthermore, the Commissioner’s failure to assess whether the sanction of
dismissal was fair in the circumstances clearly demonstrates his failure to properly
analyse the evidence before and to further take into consideration the operational
risk/s the second res pondent posed to the applicant’s operations and what impact
risk/s the second res pondent posed to the applicant’s operations and what impact
his conduct had on the trust relationship.
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[45] In respect of the procedural fairness challenge, the Commissioner similarly
failed to take into consideration the fact that the document was a letter to the first
respondent complaining about strained relations between management and the
union. No evidence was led to demonstrate how the consideration of a letter dated
20 May 2019 would result in the chairperson of the internal disciplinary enquiry being
biased.
[46] Furthermore, any so-called procedural defect that had occurred during the
initial enquiry, if any, would have been cured given the fact that the second
respondent lodged an internal appeal. This evidence was clearly not considered by
the Commissioner.
[47] As a result, the award must be set aside. The Commissioner’s irregularities
are such that they result in a misconceived decision which no reasonable decision-
maker could reach on the material that was before him.
[48] In exercising my discretion and given that the complete record of the
arbitration proceedings is before m e, I have decided to substitute the arbitration
award rather than remit the matter for a fresh hearing.
Costs
[49] This Court has a wide discretion in awarding costs. I am of the view that this is
a matter where the interests of justice will be best served by making no order as to
costs.
[50] In the premises, I make the following order:
Order
1. The arbitration award issued by the fourth respondent under case
number NC 1654/20 is reviewed and set aside in its entirety, and is replaced
with an award in the following terms:
‘The second respondent’s dismissal is procedurally and substantively fair.’
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2. There is no order as to costs.
H Schensema
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Advocate J G Grogan instructed by Joubert Galpin
Searle Attorneys
For the Third Respondent: Advocate MS Monene instructed by Mohale
Incorporated