REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH
CASE NO. P70/2000
DATE: 12 AUGUST 2000
In the matter between:
WAVERLEY BLANKETS Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First respondent
NGCOLA HEMPE N.O. Second respondent
NATIONAL CLOTHING AND TEXTILE
WORKERS' UNION OF SOUTH AFRICA Third respondent
SHEPHARD SOKUJIKA Fourth respondent
_________________________________________________________________
J U D G M E N T DELIVERED ON 12 AUGUST 2000
REVELAS, J:
[1] This is an unopposed application in terms of Sec 145 of the Labour Relations Act 66 of 1995 ("the
Act") to review and set aside the award of the second respondent ("the Arbitrator"), reinstating the
fourth respondent
in the applicant's employ, having found that his dismissal by the applicant was substantively
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unfair.
[2] On the undisputed evidence presented by the applicant during the arbitration proceedings, the
following events resulted in the fourth respondent's dismissal.
[3] On the day in question, the fourth respondent left the working area and walked up a steep flight of
stairs towards the male cloakrooms with his elbows at his sides at a time when he should have
been expected to use his hands. At some stage during crossexamination the fourth respondent
conceded that he would normally use his hands when he walked up the stairs in question.
[4] The fourth respondent had also left his workstation without the required authorisation and in
circumstances where he knew he was not entitled to
be. He then entered the male cloakroom at the top of the flight of
stairs where the manager of the relevant department, Mr Fonseca, found him.
[5] Mr Fonseca had followed the fourth respondent up the stairs and peeped through the partially
closed cloakroom door. He noticed the fourth respondent standing on a table with his hands "in"
the ceiling.
[6] The following facts are in dispute. Mr Fonseca witnessed how the fourth respondent placed
material into a gap in the cloakroom ceiling. Here I may just pause to mention that the applicant's
business is the manufacturing of duvets and other similar fabric products. According to Mr
Fonseca he approached the fourth respondent and enquired from him as to why he sought to
jeopardise his employment in this fashion and in response the fourth respondent told Mr Fonseca
that he was sorry.
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{7] Mr Fonseca found various other fabrics, also the property of the applicant, inside the ceiling of the
male cloakroom in question. The fabrics were discovered through a hole in the ceiling.
[8] The fourth respondent's explanation was that he was looking for a brush in the ceiling and had
never placed any material there. The Arbitrator rejected Mr Fonseca's evidence and found that the
dismissal was substantively unfair.
[9] The essential grounds on which the applicant seeks to have the arbitration award reviewed and
set aside, are the following:
1. The Arbitrator, in breach of Sec 138(7) of the Labour Relations Act delayed unreasonably in
rendering his award; and
2. The Arbitrator's award is neither "rational" nor "justifiable" within the
meaning of C arephone (Pty) Ltd v Marcus,N O and Others [1998] 19 ILJ 1425 (LAC) ;
3. In reaching his conclusions the Arbitrator had regard to irrelevant evidence and further
disregarded relevant evidence, thereby committing a gross irregularity in the conduct of the
arbitration proceedings within the meaning of Sec 145(2)(a)(ii) of the LRA;
4. The Arbitrator failed to properly apply his mind to the inherent probabilities or issues of
credibility emerging from common cause or undisputed facts. In doing so he committed a
gross irregularity in
the conduct of the arbitration proceedings within the meaning of Sec 145(2)(a)(ii) of the Act.
[10] Firstly I will deal with the delay in rendering the award. In terms of sections
138(7) and (8) of the Act, an arbitrator, acting under the auspices of the
Commission for Conciliation, Mediation and Arbitration, should render his or her award within 14
days of the conclusion of the arbitration proceedings. Such an arbitration award has to set out
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brief reasons and therefore it must be signed by the Commissioner. In the matter before me, the
arbitration proceedings in question came to an end on 24 July 1999. By agreement between the
respective parties and with the concurrence of the Arbitrator, written heads of argument were
thereafter submitted to the Arbitrator. The applicant's heads of argument were served and filed
during July 1999 but the award was only issued on 22 December 1999, virtually six months after
the conclusion of the arbitration proceedings.
[11] In matters where arbitration awards were rendered late it appears that the attitude adopted by the
Labour Court was that the provisions contained in section 138 of the LRA were intended to be
guidelines and not imperative. In other words, that the noncompliance with the time limits
contained in section 138 of the Act need not result in the proceedings being rendered a nullity.
The Court has, however, held that there are exceptions in circumstances where an award is
issued so late that different consequences may follow. (See: A A Ball (Pty) Ltd v Kolisi and
Another [1998] 6 BLLR 560 and Free State Buying Association Ltd t/a Alpha Pharm v SACCAWU
and Another [1999] 3 BLLR 223 (LC ) at 226DG)).
[12] It was argued on behalf of the applicant that whether directly or peremptory, the legislature could
never have been intended there to be no consequences attendant upon an arbitrator's failure to
render an award
within a reasonable time, where the delay was gross. It was argued that
in the present matter the delay in itself amounts to either misconduct within the meaning of Sec
145(2)(a)(i) of the Act or a denial of a fair hearing within the meaning of Sec 145(2)(a)(ii) thereof
and that in such circumstances and despite the fact that the matter may have to be heard de
novo, the award stands to be reviewed and set aside on this basis alone.
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[13] The long delay in itself is not an irregularity which would result in the proceedings becoming null
and void (see paragraph 11 supra) but it compounded other shortcomings in the award which of
necessity, was the result of such a long delay. The long delay resulted in a failure on the part of
the arbitrator to apply his mind to the evidence. There are several examples of this.
[14] Mr Fonseca for instance testified that he and the fourth respondent had a sound working
relationship. This evidence went entirely unchallenged during the course of the cross
examination and should have been accepted by the arbitrator. The arbitrator ignored this
unchallenged evidence tendered on behalf of the applicant and then simply accepted, without
motivating why, evidence which had never been put to the applicant's respective witnesses,
namely that the relationship between Fonseca and the fourth respondent was poor, despite Mr
Fonseca's detailed unchallenged evidence to the contrary. The arbitrator also made an
adverse credibility finding against Mr Fonseca without affording him the opportunity of responding
to various contrary allegations which were never put to him during the course of cross
examination. Mr Fonseca's evidence
that the fourth respondent specifically indicated that he was "sorry" was not disputed during cross
examination. The arbitrator found it fit to reject Mr Fonseca's evidence on the basis that his
evidence was not corroborated by witnesses in whose presence the statement was allegedly
made. Rational thinking is totally absent from the reasoning of the arbitrator at this point. At no
stage did Mr Fonseca testify that there were any other persons present, apart from himself and
the fourth respondent at the time this inculpatory statement was made. In respect of this incident,
the Arbitrator refered to a Ms Moletsane who was never even called as a witness.
[15] The arbitrator also found that Mr Fonseca testified to the effect that the respondent alighted the
stairs furtively. This is also incorrect, since Mr Fonseca at no stage testified that his suspicions
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were aroused as to the manner or gait of the fourth respondent when he alighted the stairs. What
made him suspicious was that the fourth respondent had left the working station without
permission and he assumed that the fourth respondent was going to the male cloakroom to
smoke there.
[16] The arbitrator also did not deal at all with the probability of an employee looking for his brush
inside the ceiling of a male cloakroom As a fact that seems highly improbable. This escaped the
arbitrator completely.
[17] The arbitrator also observed that Mr Fonseca's view of the fourth respondent would have been
obscured. There was no basis for
such an observation and, having made it, he ought to have afforded
Mr Fonseca the opportunity of commenting on this observation.
[18] The Arbitrator also did not comment on the quality of the fourth respondent's evidence with a view
to deciding whether or not the evidence was credible. Very obvious factors he ignored, such as
the fact that Mr Fonseca's evidence was largely unchallenged, that the fourth respondent had
failed to obtain authorisation to be in the cloakroom during working hours; that the fourth
respondent belatedly saw fit to deny the existence of the hole in the cloakroom roof; that the fourth
respondent sought to suggest on very spurious grounds that Mr Fonseca had actively set about
framing him.
[19] There has been much debate about the test for review in the Labour Appeal Court. I’d rather not
dwell on the current debate surrounding the question of whether the justifiability test as set out in
the CAREPHONE case (paragraph 9.2 supra) for review, within the meaning of Sec 145 of the
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Act, is correct or not. For present purposes it has to be accepted that the test of justifiability or
reasonableness (or the “CAREPHONE test”) still forms part of the ratio decidendi of the Labour
Appeal Court's judgment in that matter. The “CAREPHONE test” was applied in at least two
subsequent decisions of the Labour Appeal Court. (See: C ounty Fair Foods (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and Others [1999] 2 ILJ 1701 (LAC) at
17067 and 1716 and Mkhonto v Ford N O and Others [2000] 7 BLLR 768 (LAC) at 770 para 5.) I
therefore regard the CAREPHONE decision as binding.
[20] This brings me to the nature of the arbitrators conduct, and the question whether on the material
available to him, he gave a justifiable award. The arbitrator rejected the applicant's evidence on
the strength of evidence which was never put to the applicant's witnesses. He ignored the
applicant's unchallenged evidence. He determined the matter solely with reference to the
evidence tendered by the fourth respondent, which was fraught with glaring improbabilities as
demonstrated. He drew adverse conclusions on the strength of observations made during the
course of an inspection in loco without recording those observations or permitting the applicant's
witnesses to comment thereon.
[21] In E llis v Morgan 1909 (T) 576 Manson, J held that a gross irregularity is one of the grounds upon
which a court may review the decisions of inferior tribunals, but that “irregularity in the
proceedings does not mean an incorrect judgment. It refers, not to the result, but to the
methods of the trial such as, for example some highhanded or mistaken action which has
prevented the aggrieved party from having its case fully and fairly determined “ (at 581).
[22] In G oldfields Investment Ltd and another v The City Council of Johannesburg and another 1938
(TPD) 551 Schreiner , J held that: "The law as stated in ELLIS v MORGAN (supra) has been
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accepted in subsequent cases and the passage which has been quoted from the case
shows that it is not merely highhanded or arbitrary conduct which is described as a gross
irregularity; behaviour which is perfectly wellintentioned and bona fide , though mistaken,
may come under that description. The crucial question is whether it prevented
a fair trial of the issues. If it did prevent a fair trial of the issues, then it will amount to gross
irregularity."
The aforesaid dictum is particularly apposite to the matter at hand as the arbitrator’s conduct
prevented a fair trial of the issues, and constitutes a gross irregularity.
[23] The Arbitrator waited six months to render his award. After that time, he apparently no longer had
the understanding of the evidence as he should
have had, had he given his award timeously. The manner in which he dealt
with the evidence led before him in his award demonstrates that an
injustice and a prevention of a fair trial of the issues had occurred. In view
of all the aforesaid factors, the Arbitrator's award falls to be set aside.
[24] I make the following ORDER:
1. The award of the second respondent (the Arbitrator) is SET ASIDE. 2. The matter is
referred back to the Commissioner for Conciliation,
Mediation and Arbitration to be heard before another arbitrator.
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E REVELAS
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