IN THE LABOUR COURT OF SOUTH AFRICA, CAPE TO
In the matter between:
SONY ARISTOS MUYULENU
and
GLOBAL TELESALES (PTY) LTD T/A
LUFTHANSAINTOUCH
COMMISSION FOR CONCILIA ION
AND ARBITRATION
GAIL MCEWAN N.O.
Heard:
Delivered:
JUDGMENT
NIEUWOUDT, AJ
Introduction
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Applicant
First Respondent
Second Respondent
Third Respondent
[1] This is an opposed application in terms of s145 of the Labour Relations Act1
(LRA), to review and set aside the arbitration award delivered by the third
1 Act 66 of 1995, as amended.
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respondent (the Commissioner) under case number WECT14624-23 on 3 July
2024.
[2] The applicant commenced employment with the first respondent (the employer)
during August 2009. He is a citizen of the Democratic Republic of Congo (DRC)
but had refugee status in the Republic of South Africa.
[3] On 5 July 2023, the applicant's refugee status expired and w
[4] The applicant was called to an incapacity hearing, and on 25 Jul 2Q23 , he was
dismissed for incapacity. He was however, afforded the opportunity to "reapply
for any available positions once he is in possessio
him to take up employment within South Africa".
The test on review
[5] The principles laid down in Sid ~ & another v Rustenburg Platinum Mines Ltd
& others2 in connection w't he )~iew ground that an award was one that no
reasonable commissioner c nd expanded on in a number of other
cases, are well known.
[6] However, there is another element in this matter, namely whether the conduct
of the Commissioner constitutes a defect in terms of s145(2)(a)(i) or (ii) of the
LRA • . t the Commissioner either "committed misconduct in relation to the
commissioner as an arbitrator' or "committed a gross irregularity
• t of the arbitration proceedings".
[7] The court was not referred to case law in this regard, but it is apposite to refer
to the decision in Chabalala v Metal & Engineering Industries Bargaining
Council & others3 where the Labour Court held as follows:
2 (2007) 28 ILJ 2405) (CC )
3 (2014) 35 ILJ 1546 (LC).
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'I conclude on the issue of the review standard to be applied in this current
matter by reference to the following dictum in Naraindath v Commission for
Conciliation, Mediation & Arbitration & others, where the court said:
"In my view it is perfectly clear in these circumstances that a complaint
that a commissioner has conducted proceedings in a way which differs
from the way in which the same dispute would be dealt with before a
court of law cannot as such succeed. It is only where the person seeking
to challenge the commissioner's award can point to sgee· ie unfairness
arising from that action by the commissioner that proper round for
review is established. A failure to conduct arbitr: tion
fair manner, where that has the effect that one of th
receive a fair hearing of their case, will alm0 t inevit ~J IY mean either
that the commissioner has committed misco~ctjJj {elation to his or
her duties as an arbitrator or that the commissioner has committed a
gross irregularity in the co c1 of the arbitration proceedings. "'4
The merits
[8] The court shall first deal with the ground of review that the award was one that
no reasonable Commi sioner could reach, and thereafter with the ground of
review that the had either committed misconduct or a gross
irregularity in the c o proceedings.
Award that no Commissioner could reach
[9] dismissal of the applicant was both
[1 O] Although the applicant challenged the procedural fairness of his dismissal, he
could advance no submissions relating to the manner in which the incapacity
nquiry had been conducted.
[11] This leaves the issue of substantive unfairness. The applicant made a number
of submissions about the commercial wisdom of the employer not doing more
to assist him with retaining or regaining his status, but this does not address the
4 Ibid at para 14.
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issue of substantive unfairness.
[12] The central issue on the aspect of substantive fairness is whether the employer
could lawfully employ the applicant after his refugee status had been withdrawn.
The applicant could not direct the court to any basis for this. To the contrary,
his continued employment would have been illegal in terms of s 38(1) of the
Immigration Act5.
[13] Accordingly, the award on the fairness of the dismissal is probably correct a d
certainly not one that a reasonable Commissioner could not reach.
Misconduct/irregularity
[14] The Commissioner's conduct of the proceedings was unaC6eptable. A number
of examples show this:
14.1 At the commencement of cross-examinat"on of the employer's witness,
the Commissioner gave the app iGant a perfunctory explanation of what
cross-examination was and almos ·mmediately reminded him that he
was not asking a question but making a statement.
14.2 he asked the applicant whether he had any further
questions.
14.3 The Commissioner informed the applicant that French was not a critical
V
Krl and suggested that every South African could speak French.
missioner then argued with the applicant about the fact that
was not stated on his visa as a critical skill. This argument
developed to the Commissioner telling the applicant that he could not tell
her to ask immigration any questions; it was not her job.
5 13 of 2002, which reads:
38 Employment
( 1) No person shall emp loy
(a) an illegal foreigner;
(b) a foreigner whose status does not authorise him or her to be employed by such person; or
(c) a foreigner on terms, conditions or in a capacity different from those contemplated in such
foreigner's status.
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14.5 The witness for the employer then asked the applicant a question, and
the Commissioner told him to answer the question.
14.6 At the commencement of the applicant's evidence, the Commissioner
told him:
'You talking again and I don't know why you doing it, because you sai
no further questions for this witness and I haven't sworn you in yet-f.
14.7 Last, there was a long debate about the status and standing of a letter
on which the applicant wished to rely, whi tl ended with the
Commissioner stating "well, maybe you shouldn't be
because you need to prove your case".
[15] A litigant who is unsuccessful often leaves the proceedings feeling that they
have not received a fair hearing. Ofte tf-ia feeling is caused by the loss and
not the conduct of the decision-maken
[16] In this matter, the applicant was entitle□ to eel that he did not have a fair
hearing. The conduct of the Commissioner was such that it denied him a fair
hearing.
[17] f the Commissioner constitutes a patent gross
irregularity in the c the arbitration proceedings. This warrants the
setting aside of the award.
Remedy
[18] e court asked both parties whether the matter should be remitted in the event
f cone usion that the applicant had been deprived of his right to a fair hearing.
[19] The difficulty with remittal is that the law is so clearly against the applicant that
he has no prospects of success, and it would be a waste of time to subject him,
his employer and the CCMA to an arbitration which could only end in a finding
against him.
[20] Against this weighs the fact that, should the matter not be remitted, the
applicant would leave the court with no substantive relief, even though he
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succeeded in persuading the court that the conduct of the Commissioner
constituted a gross irregularity in the conduct of the arbitration proceedings.
[21] This aspect troubled the court and led to a request to the parties to submit post
hearing submissions on the issue of whether the court should remit the matter
to the CCMA or whether it should decide the matter itself.
[22] The court was not referred to any decision which is directly in p
appropriate remedy where an award has been set aside on the ground ot a
gross irregularity, but a decision on the merits by any future arbitrator would be
a foregone conclusion.
[23] Ms De Waal submitted, both initially and in her p,os -he issions, that
the principle enunciated by the Labour App a/luci Home
Depot (Pty) Ltd v Herskowitz & others6 shou ite the fact that the
case did not deal with a patent gross irregularity int e conduct of proceedings.
The LAC held7:
'Where all the facts re make a determination on the disputed issues
are before a reviewin nfair dismissal or unfair labour practice
dispute such that the "is in as good a position" as the administrative
tribunal to make the determ·nation, I see no reason why a reviewing court
should o ecide the matter itself. Such an approach is consistent with the
poweris of the ~ , our Court under s 158 of the LRA , which are primarily directed
at re edying a rong, and providing the effective and speedy resolution of
disputes. lie need for bringing a speedy finality to a labour dispute is thus an
important consideration in the determination by a court of review of whether to
remit the matter to the CCMA for reconsideration or substitute its own decision
or that of the commissioner.'
[24] E en though the case is not on all fours with the matter before court, the court
has decided to apply it. The court concluded that the dispute should not be
remitted to the CCMA because, on the unequivocal facts before court, the
applicant would be unsuccessful in proving procedural or substantive
applicant would be unsuccessful in proving procedural or substantive
6 (2015) 36 ILJ 1511 (LAC)
7 Ibid at para 58.
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unfairness at future arbitration proceedings. In coming to this conclusion, the
court has taken into account that the Labour Court is more likely to substitute
an award in arbitration proceedings than the High Court wou ld be a decision in
administrative proceedings, because the Labour Court is a specialist court.
[25] Applying the principles laid down by the Constitutional Court in Zungu v Premier
of the Province of KwaZulu-Natal & others8, the court is of the opin·o that this
matter does not warrant a costs order.
Conclusion
[26] The Commissioner committed a gross irregularity. in the conduct of the
arbitration proceedings.
[27] The award should be set aside and substituted by an award that dismissal of
the applicant was substantively and procedurally fair.
[28] Accordingly, the following O/der is
1. The appliG tion for review is granted.
2. The bitratio award is set aside.
3. The arbitration award is substituted by an award that the dismissal of the
applicant was substantively and procedurally fair.
Ttiere is no order as to costs
8 (2018) 39 I LJ 523 (CC) at para 24.
• H . N ieuwoudt
Acting Judge of the Labour Court of South Africa
Appearances:
Applicant: In person
Sony Aristos Muyulenu
For the Respondent:
Instructed by: Norton Rose Fulbright South Africa Inc.
Gillian Lumb
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