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[2025] ZALCCT 118
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Performance Arts Centre of Free State v Commission for Conciliation, Mediation and Arbitration and Others (C656/23) [2025] ZALCCT 118 (25 November 2025)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
reportable
Case
No: C656/2023
In
the matter between:
PERFORMANCE
ARTS CENTRE OF THE FREE STATE
Applicant
and
COMMISSION
FOR CONCILIATION,
First Respondent
MEDIATION
AND ARBITRATION
VUYO
BASHOLO N.O.
Second Respondent
NTEBOHENG
JULIA MOKGUTLE
Third Respondent
Heard
:
13 August 2025
Delivered
:
25 November 2025
JUDGMENT
MacKENZIE,
AJ
Introduction
[1]
This is a review brought under section 145 of the Labour Relations
Act, 1995 (LRA). The Applicant, the Performance Arts
Centre of the
Free State, seeks to review and set aside the award of the Second
Respondent (“
the
Arbitrator
”) reinstating
the Third Respondent, Ms Mokgutle.
[2]
The Third Respondent opposes the review.
[3]
Mr Masihlelo appeared for the Applicant. Mr Aarninkhof of Aarninkhof
Attorneys appeared for the Third Respondent. The
Court is indebted to
both for their comprehensive and helpful submissions.
[4]
The
Applicant failed to file the record timeously within the 60-day time
limit imposed under paragraph 11.2.2 of this Court’s
former
Practice Manual.
[1]
Accordingly,
the review is deemed withdrawn. The Applicant seeks condonation and
reinstatement, to which I turn first.
Condonation
[5]
Paragraphs 11.2.2 and 11.2.3 of the Practice Manual read:
‘
11.2.2 For the
purposes of Rule 7A(6),
records must be filed within 60
days of the date on which the applicant is advised by the registrar
that the record has been received
.
11.2.3
If
the applicant fails to file a record within the prescribed period,
the applicant will be deemed to have withdrawn the application,
unless the applicant has during that period requested the
respondent’s consent for an extension of time and consent has
been given
. If consent is refused, the applicant may, on
notice of motion supported by affidavit, apply to the Judge President
in chambers
for an extension of time. The application must be
accompanied by proof of service on all other parties, and answering
and replying
affidavits may be filed within the time limits
prescribed by Rule 7. The Judge President will then allocate the file
to a judge
for a ruling, to be made in chambers, on any extension of
time that the respondent should be afforded to file the record
.’
(emphasis added)
[6]
Non-compliance
requires condonation. It is well established that an applicant for
condonation must show good cause by acting
bona
fide
,
explain the full period of default, demonstrate reasonable prospects
of success, and show that granting the order serves the interests
of
justice. An applicant need not prove the merits in detail but only
set out facts which, if established, would justify success.
Ultimately, condonation is a discretionary remedy that the court must
exercise judiciously.
[2]
[7]
The review application was launched on 14 December 2023. On 9 January
2024 the Registrar issued a notice in terms of Rule
7A(5). The
Applicant was thus required to file the record on or before 5 April
2024. The Applicant neither did so nor did it seek
an extension of
time as contemplated in paragraph 11.2.3. Accordingly, the review was
deemed withdrawn as from 6 April 2024.
[8]
On 16 April 2024, the Third Respondent’s attorneys reminded the
Applicant that the review was deemed withdrawn.
Ten days later, on 26
April 2024, the Applicant, in writing, requested an extension from
the Third Respondent’s attorneys
for the late filing of the
record. On 30 April 2024, the Applicant served a copy of the record
upon them. Inexplicably, the record
was only filed with the Registrar
two weeks later, on 16 May 2024, some 29 court days after the
deadline of 5 April 2024.
[9]
There was yet another delay of two weeks before the Applicant served
the application for condonation and reinstatement
on 30 May 2024,
upon the Third Respondent’s attorneys. Again, inexplicably, the
application was only filed with the Registrar
on 14 June 2024.
[10]
The Applicant’s explanation for the delay is this.
10.1
The Applicant had requested transcription of the record on 12 January
2024. However, as a public entity, transcription services had to be
procured through the Applicant’s supply chain management
(SCM)
process, and only one quotation was initially received. Accordingly,
the appointment of transcribers was delayed until 25
March 2024.
10.2
The recordings were received between 4 and 9 April 2024, and the
full
transcript was delivered on 12 April 2024. Its volume caused further
delays, and pagination was only completed on 30 April
2024.
10.3
The Applicant’s counsel then required additional time to read
the extensive record, but fell ill between 21 and 26 May 2024.
10.4
An extension to file the Rule 7A(8) notice was accordingly sought
and
communicated, and the application was filed on that basis.
[11]
The Applicant did not put up any evidence as to the scope or content
of its SCM policy. The Court is thus left in the
dark as to the
process that was required to be followed, whether it was followed
and, if not, to properly assess the resulting
reasons and delay. Be
that as it may, I am prepared to accept the Applicant’s
explanation for the delay between 12 January
and 12 April 2024.
[12]
However, the Applicant’s explanation for the month-long delay
between 12 April and 16 May 2024 is far from satisfactory.
12.1
According to the Applicant, the record was paginated between 12
April
and 30 April 2024. In this regard, the full record, including
transcripts and documents, runs to just over 1 500 pages.
A
period of two weeks to paginate the record by hand would already, in
my view, have been excessive – but the record was
paginated
electronically. There is therefore no reason why pagination could not
have been completed within a single day.
12.2
When it served the record on the Third Respondent’s attorneys
on 30 April 2024, the Applicant knew that it was already almost a
month late. Indeed, the Third Respondent’s attorneys had
already reminded the Applicant on 16 April 2024 that the record was
late. Yet, it did not deliver the record and simultaneously
seek
condonation and reinstatement of the review application. There is no
reason why it could not do so, nor was one given; after
all the
record was at hand, the Applicant had counsel on brief and the facts
giving rise to the delay were known.
12.3
In this regard, the necessity for counsel to have additional time
to
read the record does not justify any further delay in delivering the
application for condonation and reinstatement.
12.4
The Applicant then inexplicably waited another two weeks before
it
filed the record with the Registrar on 16 May 2024. There is no
explanation for that delay.
12.5
Worse still, the Applicant only filed the application for condonation
and reinstatement with the Registrar on 16 June 2024 – just
over two weeks after it had served a copy upon the Third Respondent’s
attorneys, on 30 May 2024. There is no explanation for that delay,
either.
[13]
The delays set out above were all within the Applicant’s
control. It could and should have acted with the alacrity
demanded by
review applications.
[14]
However, as I turn to deal with, the Applicant’s prospects of
success are not negligible. Indeed, this is a rare
case where an
unsatisfactory explanation that would otherwise merit the refusal of
condonation, is fortuitously rescued by the
prospects of success.
Accordingly, condonation is granted and the review application is
reinstated.
Undisputed
factual background
[15]
The Third Respondent commenced her employment with the Applicant on 1
April 2008. She was later appointed as a human
resources (HR)
Administrative Secretary on 1 April 2011.
[16]
On 1 September 2014, she was appointed to act as the personal
assistant to the Applicant’s chief executive officer
(PA-to-CEO). The Third Respondent’s acting stint as PA-to-CEO
ended in early 2016. However, on 1 June 2016, she was again
appointed
to act in that role and continued to do so until 2020.
[17]
On 25 March 2020, the Applicant’s CEO, Mr Peter Pedlar, advised
the Third Respondent in writing that her duties
as PA-to-CEO were to
be terminated, and that her last day in that role would be 30 April
2020. Around this time the PA-to-CEO role
was renamed ‘
CEO
Office Co-ordinator’
, and was filled by someone new, Ms
Maarman.
[18]
The CEO further advised the Third Respondent that, due to the revised
organisational structure her original position
‘
does not
exist anymore
’ but she was to remain attached to HR and
would report to the HR Manager.
[19]
On 23 July 2020, the CEO’s office furnished the Third
Respondent with a hand-over letter requiring her to ensure
a complete
handover to the newly-appointed CEO coordinator.
[20]
During October 2020, the Applicant’s HR Manager, Ms Ramiah,
wrote to the Third Respondent recording,
inter alia
, that the
Third Respondent had allegedly sat at reception all day in full view
of staff, and that the Applicant had viewed her
conduct as a
de
facto
strike, and the Third Respondent was accordingly instructed
to report to HR. In her handwritten response, the Third Respondent
denied that she had defied the Applicant, and asserted that the
Applicant had not allocated her a workspace, tools or even duties.
In
concluding her written response, the Third Respondent informed the
Applicant that she considered its letter as a form of intimidation.
[21]
In early 2021, the Third Respondent referred a dispute to the CCMA
with the primary issue described as ‘
unilateral changes to
terms and conditions of employment
’.
[22]
On 7 May 2021, the acting CEO, Ms Snell, issued a written ultimatum
to the Third Respondent to stop her ‘
illegal strike action
’,
and report to and perform her duties as Administrative Secretary, and
that Mr Sello Sanyane (the Applicant’s chief
financial officer)
would point out her allocated workspace. The Third Respondent was
warned that failure would result in disciplinary
action.
[23]
On 13 May 2021, the Third Respondent was issued with a key for the HR
office that she was to occupy.
[24]
On 24 May 2021, Mr Sanyane sent the Third Respondent a revised
Administrative Secretary job description for her input
and
acceptance. On 2 June 2021, the Third Respondent replied that she is
unfamiliar with that job description, and that it differed
from the
one she had.
[25]
Meanwhile, on 10 June 2021, the CCMA dismissed the Third Respondent’s
referral.
[26]
On 21 June 2021, Mr Sanyane issued a further letter to the Third
Respondent, apparently urging her to desist from non-compliant
behaviour, to stop her work stoppage, obey instructions, and sign the
job description and performance agreement that he had sent
her,
failing which disciplinary action would follow.
[27]
On 4 August 2021, Mr Sanyane requested the Third Respondent to submit
to him the job description that the Third Respondent
believed she
had. In response, the Third Respondent provided him with her job
description as ‘
PA to CEO
’.
[28]
On 18 October 2021, Mr Sanyane pleaded with the Third Respondent to
stop insisting that she is the PA-to-CEO, and to
perform her
Administrative Secretary duties.
[29]
On 7 December 2021, Mr Sanyane e-mailed the Third Respondent
reminding her to report to him rather than to Mr Karabelo
Morake, the
Applicant’s HR head. Mr Sanyane also queried the Third
Respondent’s reporting practices. The Third Respondent
replied
later that day, accusing Mr Sanyane of harassment, victimisation and
threatening behaviour.
[30]
More than eight months later, on 18 August 2022, the Third Respondent
was suspended on full pay ‘
due to serious allegations of
misconduct
’ pending investigation and potential
disciplinary proceedings.
[31]
In a notice dated 14 September 2022, the Third Respondent was
informed that she was required to attend a disciplinary
hearing to
answer the following three charges preferred against her:
31.1
Work stoppage and/or illegal strike and/or gross insubordination;
31.2
Gross insubordination;
31.3
Gross insolence and/or gross insubordination.
[32]
The disciplinary hearing was held over several days in September
2022. The Third Respondent had applied for legal representation,
which was denied.
[33]
On 5 October 2022, the Third Respondent was found guilty on all three
charges, and, on 7 October 2022, she was dismissed
with immediate
effect.
[34]
Consequently, the Third Respondent referred a complaint to the CCMA,
which culminated in the arbitration before the Arbitrator.
The evidence
[35]
Considering
the nature of the Applicant’s grounds of review, it is
necessary to briefly traverse the evidence led at the arbitration.
It
is also helpful to bear in mind that, given that the Third
Respondent’s dismissal was common cause, the Applicant bore
the
onus to prove its fairness.
[3]
[36]
The Applicant led two witnesses, namely Mr Sanyane and Mr Morake.
There were likewise two witnesses for the Third Respondent,
namely
herself and Ms Mpho Motete, a former finance manager of the
Applicant.
Mr Sanyane
[37]
Mr Sanyane testified that the Third Respondent’s substantive
post had always been that of Administrative Secretary,
as reflected
in her original 2011 appointment letter. Although that post had no
longer appeared on the 2019 approved organisational
structure, he
testified that the Third Respondent had thereafter operated on a
‘
warm bodies structure’
. Under that arrangement,
employees whose posts had been removed continued working in their
previous roles, had kept their old titles,
and had retained their old
duties.
[38]
He testified that after the Third Respondent’s acting stint as
PA-to-CEO had ended, she was instructed to return
to HR and resume
her Administrative Secretary duties. He testified that she had
refused to do so and had instead sat at reception
for months, even
after being repeatedly directed to report to her workstation in HR.
He referred to letters and instructions issued
from 2020 onwards
(including those from the CEO) requiring her to return to HR, but
maintained that she had disobeyed them.
[39]
He testified further that, because the Third Respondent had acted for
years without a formal job description, he had
drafted a job
description for her position as Administrative Secretary in May 2021
and had presented it to her. He testified that
the Third Respondent
had refused to accept or sign it, insisting, instead, on duties
aligned with her former role as PA-to-CEO
– despite that
role having been filled by someone else. He characterised her refusal
– together with her failure
to report to her HR office –
as persistent insubordination and a form of work stoppage.
[40]
He maintained that the Third Respondent had been given a designated
office and tools of trade, and disputed her version
that she had
nowhere to work. He emphasised that the Third Respondent had refused
lawful instructions, failed to report to her
workstation, and failed
to perform duties allocated to her. He testified that her conduct had
persisted over many months and amounted
to gross insubordination,
thus fitting squarely within the charges brought against her.
Mr Morake
[41]
Mr Morake testified that once her acting PA-to-CEO role had ended,
the Third Respondent was required to return to her
substantive post
in HR, as communicated in the CEO’s letter of March 2020. He
maintained that her own correspondence had
acknowledged that
instruction and that her explanations about lacking tools or an
office amounted to an admission that she was
not working during the
relevant period.
[42]
He said the Applicant’s concern – expressed in letters
from multiple senior managers – had consistently
been that the
Third Respondent had not been reporting to HR and not performing her
duties.
[43]
Mr Morake testified that he had shared an office with the Third
Respondent, that a fully equipped workstation had been
made available
to her, and that the photographs put up by the Applicant depicted her
allocated workspace. Accordingly, he denied
the Third Respondent’s
version that she had not been allocated office space. He maintained
that she had chosen not to return
to HR, and had lingered at
reception in contravention of repeated instructions to resume her
duties.
[44]
He, like Mr Sanyane, characterised the Third Respondent’s
failure to comply with lawful instructions as deliberate
work
stoppage and gross insubordination.
Ms Motete
[45]
Ms Motete testified that all of the Applicant’s employees –
including herself and Mr Sanyane – only
returned to work on 5
October 2020. She therefore regarded the allegation that the Third
Respondent had ‘
refused to return’
from 1 August
2020 as factually impossible.
[46]
She testified that the Third Respondent’s June 2021 e-mail
querying her job description had been polite and legitimate
–
and not insubordinate.
[47]
Ms Motete testified further, that, in her experience, job
descriptions during restructuring had to be consulted on and
agreed,
and not imposed. She testified that she had also been dismissed for
refusing to sign a job description for which she had
not been
consulted.
[48]
Ms Motete explained that the Applicant’s restructuring policy
had required engagement with unplaced employees and
efforts to
allocate alternative roles – and that those processes had not
been followed in respect of the Third Respondent.
The Third Respondent
[49]
The Third Respondent confirmed that her prior Administrative
Secretary post had been abolished during the restructuring,
but she
testified that she had continued receiving her salary and performing
her duties.
[50]
She accepted that while other posts had also been abolished, her
situation was different in that her colleagues’
posts had
either been renamed or reassigned: but she had been told to return to
a position that no longer existed on the organogram.
[51]
She maintained that she had never refused to work, but had, in fact,
kept working – often from reception because
she had lacked an
office or tools, and had, furthermore, acted on the tasks assigned to
her. She maintained that she had complied
whenever given instructions
and that any delays or confusion stemmed from the Applicant’s
failure to clarify her revised
role after abolition of the post.
The disputes of fact on
the evidence
[52]
It is clear from the aforegoing that several material disputes of
fact arose on the evidence. The following are the most
significant.
52.1 The
Applicant’s allegation that the Third Respondent had refused to
report to HR from 1 August 2020.
52.2 Whether
the Third Respondent had in fact been allocated a workspace.
52.3 Whether
the Third Respondent had in fact been working during the period in
question.
52.4 Whether
the Third Respondent had been allocated an office and tools; and, if
so, whether she had in fact shared
that office with Mr Morake.
52.5 The
status of the Administrative Secretary post. The Third Respondent
alleged that her post had been abolished
and that no duties were
clarified; but Mr Sanyane claimed the post had continued under a
‘
warm bodies’
structure.
52.6 Whether
the Third Respondent had refused to sign her (new) Administrative
Secretary job description – the
Third Respondent arguing that
she had only requested clarity – and whether that refusal could
amount to ‘
work stoppage’
.
52.7 The
proper interpretation of the Third Respondent’s 29 October 2020
letter. Ms Mokgutle maintained that it
showed that she had sought
clarity on her role; but the Applicant argued that it constituted an
admission that the Third Respondent
had not been working.
The award
[53]
The Arbitrator handed down his award on 7 November 2023.
[54]
In sum, the Arbitrator held that the Applicant had failed to prove
the misconduct charges. In this regard, he considered
that, as her
previous position no longer existed, the Third Respondent could not
be compelled to sign something she did not understand,
and which
would later determine her performance assessment. He found that Mr
Sanyane had never met with the Third Respondent to
explain the new
job description, its purpose, or what would be expected of her.
[55]
The Arbitrator accepted that the Third Respondent had known only the
PA-to-CEO job description (which she had used for
years) and not the
newly drafted Administrative Secretary one. However, the Arbitrator
reasoned that, although her continued reliance
on the PA-to-CEO role
had been misplaced, it had not justified the Third Respondent’s
dismissal. He reasoned, further, that
since the parties had worked in
the same building, there was no reason why the Third Respondent’s
line manager could not
simply have called a meeting to resolve the
misunderstanding.
[56]
The Arbitrator found that, had the Third Respondent’s ‘
line
manager called a meeting to discuss the job description as per the
policy and such explained in reference to the abolished
position of
the Applicant, the matter
would probably been resolved’
and Ms Mokgutle ‘
would probably not have been dismissed’
.
[57]
Similarly, he found that had the Third Respondent gone to Mr
Sanyane’s office and ‘
asked for clarity regarding the
job description she had to sign, the matter would probably have been
resolved and she probably would
not have been dismissed’
.
[58]
The Arbitrator concluded that the Applicant had not discharged its
onus to prove guilt on the charges. Accordingly, he
found that the
Third Respondent’s dismissal had been substantively unfair. He
therefore ordered that the Third Respondent
be reinstated, without
back pay, with effect from 21 November 2023.
The
applicable legal principles
[59]
The central
question posed in reviews of this kind is whether the decision
reached by the Arbitrator is one that a reasonable decision-maker
could not reach.
[4]
Put
differently, was the Arbitrator’s decision so unreasonable that
it cannot be sustained on the evidence as a whole.
[5]
It is an outcomes-based assessment. It is not competent for a court
to review and set aside an award merely because it disagrees
with the
outcome on the merits. For the court to interfere with it, the award
must be ‘
so
egregious … no reasonable person could reach such a
result’
.
[6]
The test is thus one of rationality: a rational decision is one that
is logically supported by the evidence.
[7]
[60]
Section 145 of the LRA governs the review of arbitration awards.
Section 145(2)(a)(ii), in particular, specifies that
an award is
reviewable where it is tainted by a gross irregularity. Gross
irregularities may be divided into two categories, namely
procedural
irregularities and latent irregularities. While the former is fairly
self-explanatory, the latter is slightly more vexing.
[61]
To begin
with, there are three flavours of latent irregularity, namely (i)
errors of law, and (ii) errors of logic, and (iii) errors
of fact.
[8]
61.1 Firstly,
an error of law arises where the mistake misdirects the enquiry,
causes the arbitrator to ask the wrong
question, or otherwise
distorts the reasoning process. In that event, the error operates
beneath the surface yet taints the outcome,
rendering the result one
that no reasonable decision-maker could reach.
61.2
Secondly, an error of logic arises when faulty reasoning misdirects
the enquiry or breaks the rational connection
between the material
before the arbitrator and the outcome. It is reviewable only where
the lapse in reasoning is so material that
it taints the
decision-making process and results in an outcome no reasonable
arbitrator could reach.
61.3 Thirdly,
an error of fact arises where an arbitrator fails to properly
identify the material facts and apply the
LRA to them. That failure
may render the award unreasonable.
[62]
However, an
error of law, logic and/or fact is not
per
se
sufficient
to impugn an award on review. It is only where their cumulative
effect is to render an award unreasonable.
[9]
[63]
Reasonableness
is assessed objectively on all the evidence. It is enough that the
arbitrator failed to consider key facts in a way
that could have
altered the outcome. This is so since process and substance are
intertwined and latent defects can render a result
unreasonable. In
that sense, irregularity under section 145(2) concerns the method,
not the correctness, of the decision. Thus,
if the arbitrator’s
conduct – however
bona
fide
–
prevents a fair trial of the issues, it is a gross irregularity under
s 145(2). The court must therefore scrutinise the
arbitrator’s
reasons, not to reassess the merits, but to detect any latent flaw in
the decision-making process.
[10]
The
parties’ submissions
The Applicant’s
submissions
[64]
The Applicant contends that the Arbitrator’s award is vitiated
by material misdirection and gross irregularity.
[65]
Although the issues before the Arbitrator concerned the substantive
and procedural fairness of a dismissal for repeated
gross
insubordination and insolence, the Applicant argues that the
Arbitrator failed to engage with the Applicant’s version,
despite (so it was argued) it having been largely uncontested.
[66]
Mr Masihlelo argued that the Applicant’s instructions to the
Third Respondent to resume work as Administrative
Secretary were
indeed lawful instructions. the evidence – specifically, that
the Third Respondent had received from Mr Sanyane
the Administrative
Secretary job description and in response had sent him the PA-to-CEO
job description as well as the photographs
depicting the Third
Respondent’s workspace – showed a persistent, deliberate
refusal by the Third Respondent to perform
her Administrative
Secretary duties, despite the Applicant’s repeated lawful
instructions, and that this conduct was corroborated
in all material
respects by her supervisor and the HR officer.
[67]
He argued that the Third Respondent offered no rebuttal and had, in
fact, confirmed key aspects of the misconduct, including
refusing to
sign the correct job description and returning the PA-to-CEO job
description instead.
[68]
Moreover,
it was argued that the Arbitrator failed – as he was required
to do
[11]
– to properly
evaluate the evidence logically and cumulatively, consider the
probabilities and then the credibility and reliability
of the
witnesses.
[69]
As such, Mr Masihlelo submitted that the Arbitrator had ignored
material evidence, created speculative findings not grounded
in the
record – such as suggesting that a meeting or further
clarification would have resolved the impasse – and thereby
substituted an invented version for the parties’ actual
evidence. That failure to consider material facts, and the
introduction
of suppositions contrary to the record, rendered the
award unreasonable.
[70]
Finally, Mr Masihlelo argued that the Arbitrator had failed
altogether to determine the charge of insolence, leaving
a material
component of the dispute unresolved.
[71]
In sum, he argued that the Third Respondent’s cumulative
misconduct – persistent defiance of instructions,
sustained
repudiation of authority, and an incident of insolence –
constituted gross insubordination warranting dismissal.
By finding
otherwise, the Arbitrator reached an outcome that no reasonable
decision-maker could reach.
The Third Respondent’s
submissions
[72]
Mr
Aarninkhof argued that the review was, in substance, one of an appeal
disguised as a review. Relying on the decision in
Mofokeng
,
[12]
he argued that the Court must go beyond identifying flaws in the
Arbitrator’s reasoning. Even if the Arbitrator relied on
irrelevant considerations, ignored material facts, or otherwise
failed to apply their mind, the central question remains whether
–
despite those defects – the outcome is one that a reasonable
arbitrator could still have reached on the evidence.
Irregularities
in reasoning or process only justify interference where those
irregularities show that the arbitrator undertook
the wrong enquiry,
conducted the enquiry in the wrong manner, or produced a result that
is objectively unreasonable. Only irregularities
– whether
legal, factual, procedural, latent or patent – of such gravity
(individually or cumulatively) as to render
the enquiry misconceived
or the outcome one no reasonable decision-maker could reach will
justify setting the award aside.
Analysis and evaluation
[73]
It is clear from his award that the Arbitrator approached the matter
by treating the 12 May 2021 job description as the
fulcrum of the
dispute and proceeding on the premise that the post had been
abolished and that a new job description for Administrative
Secretary
had been created, and he reasoned that the Applicant was therefore
obliged to convene a meeting to explain it.
[74]
Relying on the evidence of Ms Motete, the Arbitrator held that a job
description required mutual discussion and agreement.
From that, he
inferred that a meeting between the parties ‘
would
probably
’ have resolved the issue. He therefore found
the dismissal substantively unfair.
[75]
However, even on the most indulgent reading of the award, the
Arbitrator failed to deal with several of the disputes
of fact set
out above – all of which bore centrally upon the question
whether the Third Respondent’s conduct constituted
work
stoppage, insubordination or insolence. For example, there is no
indication in the award that the Arbitrator dealt with any
of the
following:
75.1
the dispute surrounding the instruction to return to work on 1 August
2020;
75.2
whether the Third Respondent had, as a fact, been given a workspace;
75.3
whether the Third Respondent had, in fact, been working during the
period in question;
75.4
whether instructions had actually been given to the Third Respondent
and had actually been disregarded or ignored;
75.5
whether the Third Respondent’s former Administrative Secretary
position had been entirely abolished or whether it lived on in the
‘
warm bodies’
structure;
75.6
whether the Third Respondent had refused to sign the new job
description
or had merely sought clarity on it;
75.7
whether the photographs relied on by the Applicant genuinely depicted
a workspace allocated to the Third Respondent; and
75.8
whether the Third Respondent’s e-mails amounted to insolence
or
mere requests for clarity.
[76]
In my view, the Arbitrator’s failure to deal with the above
disputes of fact constitutes a material and vitiating
error of fact.
He did not appraise the material facts, each of which is vital to the
outcome of the matter. Those omissions meant
that he failed to engage
with determinative factual disputes central to the charges, resulting
in a conclusion divorced from the
evidential material that had to be
weighed, and is therefore irrational. His failure likewise
constitutes an error of law since
it materially misdirected the
enquiry towards one aspect and one aspect alone, namely the necessity
for the Applicant to consult
the Third Respondent regarding her new
job description.
[77]
What is more, the Arbitrator’s finding that, had a meeting been
called the matter ‘
would probably’
have been
resolved is impermissibly speculative and unsupported by any evidence
on record – and therefore also irrational.
[78]
In sum, the Arbitrator failed to deal with material aspects of the
evidence, all of which bore squarely upon the outcome,
with the
result that there was no fair and proper ventilation of the essence
of the dispute. In other words, the Arbitrator misconceived
the
nature of the enquiry resulting in an irrational decision.
[79]
Accordingly, in my view, the Arbitrator’s finding that
dismissal was substantively unfair falls, in the face of
the
aforegoing, outside the band of reasonableness required by
Sidumo
.
[80]
It follows that the award falls to be reviewed and set aside.
Appropriate
remedy
[81]
Considering that the Arbitrator failed, in essence, to properly
resolve the dispute between the parties, the appropriate
remedy is to
remit the matter for hearing
de novo
before a different
arbitrator.
Costs
[82]
Costs in
this Court are discretionary and do not follow the result as a matter
of course.
[13]
I consider it
fair that each party pay its own costs.
Order
[83]
In the result, the following order is made:
1. The Applicant’s
late filing of the review application is condoned, and the review
application is reinstated;
2. The Second
Respondent’s award dated 7 November 2023 under case number
FSBF5662-22 is reviewed and set aside;
3. The matter is
remitted to the First Respondent for hearing
de novo
before a
new arbitrator.
4. Each party shall
pay its own costs.
PS
MacKenzie
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
PT Masihlelo
Instructed
by:
RC Ishmail Attorneys (Mr R Ishmail)
For
the Third Respondent:
B Aarninkhof of Aarninkhof Attorneys
[1]
On 17 July 2024, this Court’s new rules commenced, which, in
effect, combine the old Practice Manual with the old rules.
Rules
37(15) and (16) of the new rules effectively mirror paragraphs
11.2.2 and 11.2.3 of the Practice Manual.
[2]
Samuels
v Old Mutual Bank
(2017)
38
ILJ
1790
(LAC) at para 17;
POPCRU
obo Nkoko v GPSSBC and Others
[2022]
ZALCCT 50 (10 August 2022) at para 15.
[3]
Section 192(2) of the LRA.
[4]
Sidumo &
Another v Rustenburg Platinum Mines Ltd & Others
(2007)
28 ILJ 2405 (CC) at para 110.
[5]
Ludick
Financial Services v Commission for Conciliation, Mediation and
Arbitration and Others
[2022] ZALCCT 58 (18 November 2022) at para 21.
[6]
Makuleni
v Standard Bank of South Africa Ltd and Others
(2023) 44 ILJ 1005 (LAC) at para 13.
[7]
Carephone
(Pty) Ltd v Marcus NO
1999 (3) SA 304
(LAC) at para 37.
[8]
Head of
Department, Department of Education v Mofokeng
(2015) 36 ILJ 2802 (LAC) at para 32.
[9]
Gold
Fields Mining SA (Pty) Ltd v CCMA
2014
(1) BLLR 20
(LAC) at para 17.
[10]
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as
amicus
curiae
)
[2013] 11 BLLR 1074
(SCA) at para 25.
[11]
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
2003
(1) SA 11
(SCA) at para 5.
[12]
Head of
Department of Education v Mofokeng & Others
(2015) 36 ILJ 2802 (LAC)
[13]
Union
for Police Security and Corrections Organisation v South African
Custodial Management (Pty) Ltd and Others
[2021]
12 BLLR 1173
(CC).