THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

	Not Reportable
case no: C218/2021

In the matter between:

NEHAWU obo T PALWENI	                          Applicant

and

DEPARTMENT OF CO OPERATIVE
GOVERNANCE HUMAN SETTLEMENTS AND
TRADITIONAL AFFAIRS	 First Respondent

GENERAL PUBLIC SERVICE SECTORAL	
BARGAINING COUNCIL	Second Respondent
SHIRAZ OSMAN NO	Third Respondent

Heard:  11 October 2023
Delivered: 7 February 2024 (This judgment was handed down electronically by emailing a copy to the parties. The 8 February 2024 is deemed to be the date of delivery of this judgment).

JUDGMENT

RABKIN-NAICKER J 

[1]	This is an opposed application to review an arbitration award under case number GPBC 702/2019. In terms of the award, the third respondent (the Commissioner) found that the dismissal of the applicant was both procedurally and substantively fair.

[2]	The background to the dispute was set out in the Award as follows:
	“4. The applicant was employed at the respondent, since March 2008, on a contract basis. He became a permanent employee in, 2010.
	5. The applicant was employed as an, Administration Officer-Transport.
	6. The applicant was charged on three counts of absenteeism from work, without permission The charges were in respect of several days in June; July & August 2018. He was also charged for leaving the workplace without permission on three days.
	7. The applicant was dismissed subsequent to a disciplinary hearing and an appeal on, 4 Mach 2019.”

[3]	It is so that in considering a review:
“At the heart of the exercise is a fair reading of the award, in the context of the body of evidence adduced and an even-handed assessment of whether such conclusions are untenable. Only if the conclusion is untenable is a review and setting aside warranted.” 

[4]	In this matter, the content and tenor of the Award is on its face problematic in the Court’s view. The Commissioner has amalgamated the summary of the evidence before him with his ‘analysis’ of that evidence.  In so doing, he has given his ‘opinion’ on various issues in a style quite contrary to the requirements of his impartial function. A few examples of this approach suffice:

	“25. At cross-examination, Ms. Sivelo confirmed that the applicant’s perpetual absenteeism from work came to her attention in 2016, when she had joined the Transport section from Finance. Indeed Mr Palweni indicated to her, that he had some illness, but it does not negate the fact that the applicant had had the obligation, to report his absence to the respondent, in terms of it’s policy. The applicant’s representative tried to extrapolate from the witness that the respondent should have applied the principle of “no work, no pay”. Indeed, I agree with the suggestion. But it also suggests that the respondent had paid the applicant contrary to this policy and therefore wasted it’s valuable resources. Somebody ought to take the blame for that wasteful expenditure. It is my opinion, that even if the respondent had applied the “no work, no pay” policy as it should have done, it would not mitigate the fact that the applicant had failed to conform to the respondent’s leave policy.
  	26. The applicant’s representative made the suggestion that Mr. Palweni should have been cautioned. I find this suggestion laughable, in view of the fact that the applicant should have known better than to be absent from work, without permission on so many days……Then, there was another ridiculous suggestion in that the respondent should have shown Mr Palweni how to comply with the leave procedure…. 
27. When it suggested to the witness that she should have issued the applicant with a warning or a written warning, the witness made the assertion that the respondent did not always issue warnings but they had tried to establish the reasons for the applicant’s conduct. Trust me if the respondent had strictly adhered to it’s disciplinary code in respect of Mr Palweni, then indeed, Mr Palweni should have been dismissed a long time ago.”

[4]	It is not surprising given the examples above, that the grounds of review in this application include an allegation of bias. Indeed, the Commissioner describes the conduct of the applicant as ‘bordering on insolence’ (where such is not a charge against him) and of “dishonesty” which is likewise not indicated in the chargesheet. In what I would describe as an unprofessional manner, the Commissioner records in his Award:

	“50. Aha! Finally Mr. Palweni admitted that he left work without permission on 4 June 2018. Probably, the only honest statement Mr. Palweni made in the entire arbitration……”

[5]	In contrast the employer’s witness Mr March is described as ‘confident and robust” and “very convincing”.:

	“35. At cross-examination, it emerged that indeed, the applicant was not charged for 13 June 2018, which could have been the result of an omission. I don’t blame the respondent for the omission, it must have been hard to follow the absence of the applicant from work, considering he did it so often I am surprised that it took so long and after so many instances for the applicant to be charged with such unbecoming behavior.
	36. The applicant’s representative put an absurd suggestion to Mr March, that leaving work was not a serious offence in terms of Resolution 1 of 2003. I think the applicant is not serious about this assertion. Indeed, it might not reflect as a serious offence in the Resolution but it certainly is to leave one’s workplace earlier than one is supposed to without permission. It is theft of the respondent’s time, in my humble opinion.
	37. Finally, it was put to Mr March that at the disciplinary hearing, he rated the applicant’s performance as maybe one or two out of five which is below satisfactorily and that he now rated the applicant a zero. Mr March gave a classic response in that he was now correcting the testimony in respect of the applicant’s performance to zero.”

[6]	I have highlighted some of the content I find to be unacceptable in the Award. I am inclined to say this results from the Commissioner’s undisciplined approach to his function. He has not constructed his Award as outlined in successive Guidelines by the CCMA to ensure that a summary of the evidence is separated from an analysis of its contents. There can be no question that a commissioner has a legal duty to act impartially in the conduct of the arbitration proceedings. This impartiality must also be reflected in the content of his Award. An impartial decision-maker cannot pepper his award with subjective opinions and comments, sarcastic or otherwise. This is an unusual instance when the reading of the Award, on its face, leads to a reasonable apprehension of bias.  

[7]	There is also in addition to the above, another issue that supports my view that the Award in question is reviewable. The arbitrator heard viva voce evidence, and had documentary evidence before him, that the applicant was auto immune compromised, and in addition suffers from major depression for which he was hospitalised and treated during his employment on several occasions. A report by his medical practitioner shows that he attended to him on three occasions in 2018 for major depression. The medical records also showed that his clinical psychologist wrote a letter to the Department on the 28 of April 2018 recommending his transfer away from ‘headquarters’ to Francis Baard which in his opinion would be to the advantage of both parties because this would allow the applicant to function more effectively without the stress he felt at ‘headquarters’. The applicant dealt with his medical issues in detail in his testimony and the various visits to his medical practitioners. The transcript reflects that the Commissioner interrupted this testimony as follows:
	
“COMMISSIONER: Now listen, hold it, this goes, I will ask a simple question, this covers all the period in count 4? Is that what you are saying? All the periods in all the counts?
MR CRONJE: No Commissioner, he just to show his history in terms of his medical condition.
COMMISSIONER: He had a bad medical condition. My sympathies, you have a bad medical condition This is not  [indistinct] … the question is, they saying you were absent and you did not produce nothing. All this thing came up in the disciplinary hearing Alright, so let us get to that.
APPLICANT: Okay, yes no, I fully agree with the Commissioner [Indistinct]…
COMMISSIONER: Alright, because we going on and on to things that do not related to the dispute. I must decide whether you were absent with permission or without permission Finish and klaar.”

[8]	When the applicant was asked why in his own words, he felt his dismissal was unfair, he emphasised that his employer did not take into account his medical condition and that he had over the years had to apply for temporary incapacity leave due to it. The evidence of the employer was that they had received the report by clinical psychologist suggesting the applicant’s transfer but had taken no steps in relation thereto. The Commissioner considered this as follows:
	
	“56. The issue of the transfer of the applicant is a mere recommendation by the applicant’s psychologist The applicant by his own submission expected the respondent to deal with it but did nothing to pursue the transfer if it all would have changed his behaviour. At no stage did it emerge at the arbitration that the applicant had sought the intervention of the respondent in resolving his issues, if he had any at the workplace. He also did not use the respondent’s grievance procedure.”			
[8]	The “finish and klaar’ attitude of the Commissioner to evidence linked to the applicant’s medical illness, and his insistence that the evidence was not relevant to the dispute, amounts to a gross irregularity. The Commissioner had a closed mind as to the nature of the enquiry before him, limiting his conception of the enquiry before him to misconduct pure and simple. This misconceived approach to the evidence before him and given my findings that his Award on its face gives rise to a reasonable apprehension of bias, does not allow a reviewing Court to find his ultimate conclusion tenable. The dispute must be remitted in order that there can be a fair trial of the issues.

[9]	In all the above circumstances, I therefore make the following order:
	
	Order
1.	The Award under Case Number GPBC702/2019 is reviewed and set aside.
2.	The dispute is remitted to second respondent for re-hearing before a Commissioner other that third respondent.

______________________
HRabkin-Naicker 
Judge of the Labour Court of South Africa.

Appearances:
 
For the Applicant:	Nehawu Official 
For the First Respondent:	State Attorney Kimberley