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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

 

Not Reportable

CASE NO.D36/2021

 

In the matter between:

 

RCL FOODS SUGER-KOMATI MILL                                                                       Applicant

 

and

 

NATIONAL BARGAINING COUNCIL FOR SUGAR

MANUFACTURING AND REFINERY                                                         First Respondent

 

COMMISSIONER GERALDINE KHOZA                                                Second Respondent

 

FAWU                                                                                                         Third Respondent

 

NTANDO NKUNA                                                                                    Fourth Respondent

 

Heard: 6 December 2023

Delivered: 21 February 2024

 

JUDGMENT

 

Kadungure T AJ,

 

Introduction

 

1.     The Applicant seeks to review and set aside an arbitration award dated 18 December 2020 and issued under case number NBCS5-20 wherein the Second Respondent (‘’the Arbitrator’’) found that Ntando Nkuna (‘’Mr Nkuna’’)’s dismissal was substantively unfair, and he was reinstated retrospectively.

2.     The Third Respondent, FAWU (‘’Third Respondent’’) acting on behalf of Mr Nkuna (‘’the Fourth Respondent’’) opposed the application for a review.

The evidence adduced

 

3.     The Applicant has a maintenance team whose responsibility includes the maintenance of houses occupied by its employees.

4.     The Applicant employed Mr Nkuna on 2 March 2015, and he worked as part of the aforesaid maintenance team as a painter, earning a monthly salary of R11 508 73.

5.     Mr Nkuna was, however, dismissed after being found guilty of misconduct on 8 May 2020.

6.     The charges of misconduct, which led to Mr Nkuna’s dismissal, relate to the unauthorised removal and possession of a frying pan belonging to the resident of the house where he was working.

7.      After his dismissal, Mr Nkuna lodged a dispute of unfair dismissal dispute under the auspices of the National Bargaining Council for the Sugar Manufacturing and Refining Industry (or the First Respondent herein).

8.     The Arbitrator concluded that RCL Foods Sugar -Komati is ordered thus to retrospectively reinstate the Applicant, Ntando Nkuna, with back pay from the date of dismissal to the date stated below, calculated thus: R 11 548, 73 x 8 months equalling to R92 389, 84.

9.     The Arbitrator further ordered that both the reinstatement and backpay should be effected on 04 January 2021 and is subject to taxation as per prescripts of SARS, and there was no order as to costs.

10.     The Applicant was dissatisfied with the Arbitrator’s order and launched a review application.

11.     In order to assess the Arbitrator’s findings and the grounds for review raised by the Applicant, it is necessary to consider the evidence adduced at the arbitration proceedings.

 

The Applicant’s case

 

12.     The Applicant’s only witness, Mr Danie Rudolf Jansen Van Vuuren (hereinafter referred to as ‘’Van Vuuren’’), who was employed as a Civil Foreman at Komati Mill, testified that the Fourth Respondent used to work for the Applicant as a painter and as part of the maintenance team the Applicant’s duties included painting the houses on different farms owned by the Applicant.

13.     Van Vuuren noted that there was a Service Level Agreement between the Applicant and Komati Mill. In terms of the Service Level Agreement, the Applicant promised to deliver good service, and it also gets evaluated by the clients once or twice a year.

14.     The witness further stated that on 3rd May 2020, Mr Nkuna, the fourth respondent, was working at 1[…] W[…] Street in K[…] and around three o'clock, the house owner called him and stated that his wife, who was at the house, had told him that the painter, Mr Nkuna had taken the pan.

15.     Mr Van Vuuren explained that he was quite upset when he was told that the pan was stolen, and he suggested to the husband to tell his wife to confront Mr Nkuna. After twenty minutes, the husband later phoned him and informed Van Vuuren that his wife had found the pan in the plastic bag belonging to the painter.

16.     Mr Van Vuuren investigated the matter by confronting Mr Nkuna and asking him what had happened. Mr Nkuna responded by stating that he didn’t know what he was speaking about. After Mr Nkuna was told that the husband had told him the whole story about the pan that was taken and found in the plastic bag, Mr Nkuna admitted that he had taken the pan out of his bag because he wanted to clean it as it was full of paint.

17.     Mr van Vuuren further testified that the pan was in the washing area, separate from where Mr Nkuna was painting. And that Mr Nkuna was not painting in the washing area.

18.     Mr Van Vuuren showed the Arbitrator the kitchen floor plan and where the pan was based on the statement of the owner's wife.

19.     During cross-examination, Mr Van Vuuren admitted that he was absent when the incident occurred. He further stated that he did not see the employee when setting the day's materials. He further revealed that Mr Nkuna was working alone.

20.     It was further put to the witness that the Applicant had removed the pan with his tools as he took everything in the PVC plastic to sort it outside and wash his brushes. This witness, however, denied this assertion by stating that, firstly, the procedure is that paints and brushes are taken out separately as they are still wet with paint and must be washed on the premises whilst the paint is still wet. Secondly, the pan weighed about half a kilogram and should have been felt if wrapped by the PVC by mistake.

 

The Fourth Respondent’s case

 

21.     The Fourth Respondent (hereafter referred to as ‘’Mr Nkuna’’) testified that on 03rd May 2020, his superiors allocated him a job to go and paint a kitchen at K[…], W[…] Street. He did his job as instructed by his supervisor, starting with painting the ceiling, which was a little bit rotten. He placed a sheet on the floor so that everything he scratched from the ceiling or the wall would be trapped on that sheet.

22.     He further testified that five people were in the house: two children, the mother, an assistant, and a lady whom he did not know. These people were coming to the place where he was painting.

23.     Mr Nkuna also said that the people in the house were coming in and out around the proximity where he was painting. There was nothing he could do because they were the house's residents. He further testified that they would also step on top of the PVC sheet from time to time, and sometimes, they would touch the material he was using, and he would chase them away.

24.     Mr Nkuna explained that around 1400, at the end of the day, he was asked about the missing frying pan by the wife of the owner of the house, and he explained to her that he did not see it. She then asked him to assist her in looking for it, and that was when he and the wife started looking for the pan. He looked for the pan inside the house and, after that, he found it outside. He bought the pan in and asked her if she was referring to the pan he had found, and she said yes. The aforesaid pan was found amongst the material in the PVC sheet.

25.     He further testified that the pan had small drops of paint. He, however, washed the paintbrushes after finding the pan.

26.     Mr Nkuna admitted that the laundry area was not part of the kitchen area, and he was not supposed to work there.

27.     Concerning the existence of a pan in the laundry area, Mr Nkuna stated that he did not see anyone using the laundry area, and the door that the house's occupants used on that day was the kitchen door.

28.     In cross-examination, it was pointed out to him that he had deliberately put the pan in the PVC plastic and put it outside to remove it from the house. Mr Nkuna denied this assertion by stating that he did not put the pan in the PVC and that with all the movement of the children, it was possible that he could not have moved the pan on the PVC during the day.

29.     In so far as where the pan was before being found amongst the PVC sheets, the witness testified that he did not know where the pan was.

The test on review

 

30.     I have to deal with the grounds for review within the context of the test that this Court must apply in deciding whether the Arbitrator's decision is reviewable. The test has been set out in Sidumo and another v Rustenburg Platinum Mines Ltd and others (Sidumo)[1] as to whether the decision reached by the commissioner is one that a reasonable decision-maker could not reach. The Constitutional Court held that the Arbitrator's conclusion must fall within a range of decisions that a reasonable decision-maker could make.

31.     The Labour Appeal Court in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others[2]  affirmed the test to be applied in review proceedings and held that:

‘’In short: A reviewing court must ascertain whether the Arbitrator considered the principal issue before him/her, evaluated the facts presented at the hearing, and came to a conclusion that is reasonable.’’

32.               The review Court is not required to take into account every factor individually, consider how the Arbitrator treated and dealt with each of those factors and then determine whether a failure by the Arbitrator to deal with it is sufficient to set the award aside. This piecemeal approach to dealing with the prize needs to be revised as the reviewing Court must consider the totality of the evidence and then decide whether the decision made by the Arbitrator is one that a reasonable decision-maker could make.[3]

33.     This application for review is to be decided within the context of this test.

 

The Arbitrator’s findings

 

34.     In his analysis of the evidence, the Arbitrator found out that there are no material differences in both parties' cases in the sequence of events of the day. The Arbitrator further observed that there was no evidence showing that Nkuna had removed the pan from the alleged place where it was kept; however, Nkuna forwarded a reason that may have resulted in a pan ending up in the PVC.

35.     The Arbitrator was left to determine the probability and reasonableness of the Applicant’s reason.

36.     In doing her assessment, the Arbitrator points out that she had to reconstruct Mr Nkuna’s working environment on the day by stating that it is common knowledge that the environment could not have been a tidy one, given the fact that the house was lived in and had occupants on the day. She further states that despite no evidence on the children's ages, she found that it was highly unlikely that they would not have entered the kitchen on various instances during the day. This implies that this allowed the loose items to be moved around.

37.     On the Applicant’s contention that Mr Nkuna should have felt the pain in the PVC when carrying everything out, given the weight of the pan, the Arbitrator found that even if Mr Nkuna would have felt the weight, the first available opportunity to have investigated that the pan was outside was when he opened the PVC in order to organise his tools to clean them and repack for transportation.

38.     The Arbitrator states that this opportunity had not arisen when Mr Nkuna was confronted with the issue of a missing pan. She further pointed out that she was not disregarding the Applicant’s allegations that Mr Nkuna was already waiting for transport when the house occupant confronted him.

39.     The Arbitrator interpreted the applicant’s allegation by stating that Mr Nkuna had removed tools from the house and was sitting outside, resulting in an assumption that he had completed all duties for the day and was only waiting for his transport.

40.     The Arbitrator stated that Mr Nkuna’s testimony that he washed all the brushes at the house and repacked everything was not challenged. The Arbitrator, therefore, aligned herself with the sequence of events as elaborated by Mr Nkuna.

41.     In addition to the above, the Arbitrator dealt with the inference, which was drawn from the fact that Mr Nkuna, on his own accord, went to search for the pan in the PVC based on the fact that he was the one who put it there for removal. The arbitrator concluded that she did not find the basis for this inference simply because when one searches for something, it is logical to retrace one's steps. In her view, nothing was stopping Mr Nkuna from not even checking the PVC as there was no pressure put on him to do so as per the supervisor's advice to the house occupant. According to the Arbitrator, this amounted to a person acting honestly, normally, and logically.

42.     The Arbitrator, therefore, found that the Applicant herein failed to prove that there was an intention by the Applicant to remove the pan wrongfully and dishonestly from the house and also that there was a justifiable reason why the pan was found amongst his tools on that day. It was further concluded that the applicant searched, found, and returned the pan on the first available opportunity to do so.

 

The grounds for review

 

43.     The Applicant raised several grounds for review and submitted that, ultimately, the Arbitrator made a decision a reasonable decision maker could not have reached.

44.     The gist of the Applicant’s review relates to the manner in which the Arbitrator dealt with the evidence and, more specifically, how he disregarded evidence, the fact that Mr Nkuna’s version that children may have placed the pan amongst his was not put to the Applicant’s witnesses and the basis on which she accepted evidence.

45.     In the same length and breadth, the Applicant points out that the Arbitrator failed to take into consideration the critical aspect of Mr Nkuna’s version to the Applicant’s foreman, that is, he brought the pan outside to wash it and if Mr Nkuna knew that the pan was outside as he had washed it, the question was why did he search for the pan inside the house and why did he create a version that children may have erroneously put it with his tools.

46.     The grounds mentioned above of a review were amplified in paragraphs 11 to 28 of the Applicant’s supplementary affidavit.

47.     In the same supplementary affidavit, there also is a further ground of review on the Arbitrator’s conduct during the arbitration proceedings, in which it is alleged that the Arbitrator overstepped the boundaries of active adjudication in that she participated in the proceedings of the Fourth Respondent.

48.     The question this Court must ask on review is whether the way the Arbitrator dealt with the evidence constituted an irregularity or error which was material, whether it impacted the determination of the question of whether Mr Nkuna’s dismissal was substantively fair and whether it distorted the Arbitrator’s ultimate decision.

49.     I believe there is merit in the Applicant’s grounds for review, for reasons I will deal with infra.

 

Evidence and cross-examination

 

50.     The first ground for review is that the Arbitrator failed to take into consideration that Mr Nkuna’s version of the children who may have placed the pan amongst his tools was not put to the Applicant’s witness, Van Vuuren.

51.     After a witness has given his or her evidence in chief, the other party is offered the opportunity to cross-examine the witness. The intended purpose of cross-examination is inter alia to reveal weaknesses in the evidence adduced, to challenge the truth or accuracy of the witness’s version, to bring to light facts reinforcing the cross-examiner’s case, to elicit favourable facts, to place a defence on record and to put the version of the cross-examining party.

52.     A party has a duty to cross-examine aspects which they dispute. The rationale of the duty to cross-examine is that the witness should be cross-examined so as to afford them an opportunity to answer points supposedly unfavourable to him.

53.     The failure to cross-examine a witness about an aspect of his or her evidence may result in the evidence not being called into question later. The cross-examiner who disputes what the witness says has a duty to allow the witness to explain his or her evidence, qualify it, or reveal its basis. Failure to do so has been dubbed extremely unfair and improper.[4] 

54.     Apart from the injustice to the witness, failure to cross-examine may indicate acceptance, comparable with an admission by silence.[5]  From this point of view, such evidence will carry more weight than evidence disputed by means of cross-examination, and the failure to cross-examine will increase evidential value[6]. 

55.               A failure to cross-examine a witness on any aspect is generally considered to be an indication that the party who had the opportunity to cross-examine did not wish to dispute the version or aspects of the version of the particular witness who was available for cross-examination.[7]  A cross-examiner is duty bound to put his or her defence or version on every aspect he or she wishes to place in issue to the witness.

56.     In Masilela v Leonard Dingler (Pty) Ltd,[8]  the Court was faced with a scenario where a version was not put to a witness in cross-examination and held that:

‘’The problem that I have with the applicant's version, which differs from that of Masina, is that none of it was put to Masina while he was testifying. This court has been denied the benefit of Masina's response. It is trite that if a party wishes to lead evidence to contradict an opposing witness, he should first cross-examine him upon the facts that he intends to prove in contradiction to give the witness an opportunity for explanation. Similarly, if the court is to be asked to disbelieve a witness, he should be cross-examined upon the matters that it will be alleged make his evidence unworthy of credit.’’

 

57.     In Small v Smith 1954 (3) SA 434 (SWA) Claassen J said at 438:

“It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his case or defence as concerns that witness, and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, to give him fair warning and an opportunity of explaining the contradiction and defending his character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.”’

 

58.     In casu, it is evident from the transcript that in cross-examination Mr Van Vuuren was never questioned as to who could have moved the pan from the Laundry area. This area was not supposed to be painted to outside the building.

59.     It is also clear that the Applicant’s version of the children  was never put to Mr Van Vuuren, who was the Applicant’s witness, yet when the Arbitrator made her findings, she stated that :

‘’it is common knowledge that the environment could not have been tidy, given that the house was lived in and had occupants on the day. Despite no evidence on the children's ages, she found that it was highly unlikely that they would not have entered the kitchen on various instances during the day. Thereby implying that this made it possible for the loose items to have been moved around.’’

60.     In amplification, the Arbitrator did not consider the evidence of the Applicant’s witness, let alone that no version was put to them in cross-examination. This is even though, as an Arbitrator, she ought to have been aware of the necessity for a version to be put to a witness, as has been alluded to above.

 

The Commissioner’s conduct during the arbitration proceedings

 

61.     In addition  to this, I further agree with the fact that the Arbitrator overstepped the boundaries of active adjudication in that she started participating in the proceedings on behalf of the Fourth Respondent, for example  during the cross-examination of Mr Nkuna, Ms Langa stated as follows:

‘’ Ms Langa:                  So, based on the fact that the flying pan was in the washing, you have indicated that the frying pan was in the washing area; you have also indicated that when you recovered it then, there was some pain sprayed on it. what is the (inaudible) the location?

Commissioner:    Okay, just a second. Remember that evidence is not standing in one place. Evidence is moving. When he found it, it was already with everything that had paint .So I'm not sure whether it’s fair for you to say, ‘’What’s the likelihood that it has paint it was, stood next to the laundry? ’It had already moved; it was where the pain was, so chances are that it could get paint from where he found it. So, you ask your questions ask them in a certain context. It’s moved; it’s no longer next to wherever they said they put it. It is no longer there; it’s now with the PVC and the tools and where the paint is .chance are it will have paint.’’

62.     It is imperative to note that at an arbitration hearing, the Arbitrator, in making his/her decision, relies on the testimony of the witnesses. In this case, the employer’s representative was required to cross-examine to establish facts around the discovery of the pan amongst the tools belonging to Mr Nkuna.

63.     The interferences, albeit unnecessary by the Arbitrator, resulted in her answering the questions the employer’s representative posed. The employer’s representative was, therefore, consequently denied the opportunity to expose the weaknesses in the testimony of the Fourth Respondent, to highlight the lack of credibility of the Fourth Respondent as a witness, and to ask Mr Nkuna any questions that could shed light on the offence that he was charged with.

64.     For the sake of completeness, it is imperative to note that the employee or employer representative often asks questions that appear irrelevant to the case while cross-examining a witness. In those circumstances, the Arbitrator is entitled, for purposes of clarity, to ask the employee how the line of questioning is relevant to the facts before the Arbitrator or to the cause of the dismissal.

65.     The Arbitrator is not entitled to interfere unduly with the employer or employee’s cross-examination of witnesses. There is, therefore, a very fine line between what the Arbitrator is and is not allowed to do. This is a crucial reason why the conduct of the Arbitrator in this case amounted to gross irregularity in the proceedings before her.

66.     In amplification, the Labour Relations Act (LRA)[9] neither deals with the employee’s right to cross-examination nor prescribes the extent to which the employee can digress from the point of the hearing. However, CCMA Arbitrators and Labour Court judges insist that employees can cross-examine the complainant’s witnesses. This is because such cross-examination is the democratic right of anyone accused in any formal process. Interfering with this right during an arbitration without sound reasons will likely prejudice the other party, the employer.

67.     Against the backdrop of the analysis that I have undertaken above, it is clear that the arbitrator committed gross patent irregularities in her arbitration. Patent irregularities were, as a general rule, dealt with in the case of Goldfields Investment Ltd and Another V City Council of Johannesburg and Another,[10] where it is stated that:

‘’the crucial question is whether (the commissioner's conduct) prevented a fair trial of the issues. If it did prevent a fair trial of the issues, then it will amount to gross irregularity. Many patent irregularities have this effect.’’

68.     As a general proposition, where an Arbitrator commits an act of procedural unfairness, this will give rise to a review on the grounds of a gross irregularity (or misconduct). This was also pointed out by Wallis AJ in Naraindath v CCMA & Others when he stated that :

‘’a failure to conduct arbitration proceedings in a fair manner, where it has the effect that one of the parties does not receive a fair hearing of their case, will almost inevitably mean either the Commissioner has committed misconduct concerning his or her duties as an Arbitrator or that the commissioner has committed a gross irregularity in the conduct of the arbitration proceedings.’’

69.     In the case of Toyota SA Motors (Pty) Ltd v Commissioner for the Conciliation, Mediation and Arbitration and others,[11] Judge Zondo stated that :

‘’ as the authorities referred to above reveal, a gross irregularity is a conduct on the part of an Arbitrator or decision maker that prevents one of the parties from having its case fairly heard or that prevents a fair trial of issues. Any decision by the Commissioner to prevent Toyota from cross-examining Mr Mokhotla on such a crucial aspect of the case would be a gross irregularity justifying the setting aside of the commissioner’s award.’’

70.     In this case, it was quite clear that the Arbitrator interfered with cross-examination as if she were the representative of Mr Nkuna, thereby providing answers to the questions posed by the employer’s representative.[12]  Such conduct is reviewable, as has been alluded to above. The Arbitrator accepted the employee's version of events on the children, having been responsible for moving things around when such a version had not been put to the employer’s witnesses.

71.     The conduct mentioned above was dealt with in the case of JD Trading Pty Ltd t/a Giddy’s Express V CCMA & Others, where it was stated that:

‘’ The commissioner committed a gross irregularity when she accepted the third respondent’s version that the disciplinary hearing was procedurally unfair when this version was not put to any of the applicant’s witnesses in cross-examination. The commissioner allowed this aspect of the third respondent’s testimony without allowing the applicant to rebut this evidence in line with the audi alteram partem rule.’’

72.     It is thus imperative to note whether the Arbitrator knowingly or unintentionally steps out of line makes no difference. Suppose such an error on the Arbitrator's part potentially interferes with the rights of both the employer and the employee. In that case, there is gross irregularity, thereby making the arbitration award reviewable as is in this case.

The balance of probabilities and the commissioner applying the test of beyond reasonable doubt

 

73.     The Applicant’s other ground for review is that the Arbitrator failed to make findings on probability and credibility after evaluating all the evidence presented.

74.     It is trite that an arbitration is a hearing de novo and calls for a fresh determination as to the fairness or otherwise of the employee’s dismissal based on all the evidential material placed before the Arbitrator.[13]

75.     The approach to be adopted by Arbitrators to decide the balance of probabilities in respect of disputing versions presented was set out in Sasol Mining (Pty) Ltd v Nqgeleni NO and others  (Sasol Mining)[14], where the Court held that it was one of the prime functions of an Arbitrator to ascertain the truth as to the conflicting versions before him:

‘’He manifestly lacked 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 attempt to assess the credibility of each of the witnesses and to make some observations 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. The commissioner failed to resolve the factual dispute before him on this basis. Instead, he summarily rejected the evidence of each of the applicant’s witnesses on grounds that defy comprehension.’’

76.     The Arbitrator had to follow the approach set out by this Court, and he had to assess the credibility of the factual witnesses, their reliability and overall assessment of the inherent probabilities of the irreconcilable versions before him.

77.     The evidence presented by the parties during the arbitration relates to the pan found amongst the fourth respondent’s tool. In his analysis of the evidence thereafter, the Arbitrator found that the pan made its way into the Fourth Respondent’s PVC for reasons other than the Fourth Respondent possessed it. The Arbitrator relied on the version of the Fourth Respondent, which was never put to the Applicant’s witness.

78.     Glaringly absent from the arbitration award is an assessment of the versions, 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.

79.     The Arbitrator merely recorded that the Applicant failed to prove that there was any intention of the Applicant to remove the pan wrongfully and dishonestly from the house. This finding of the Arbitrator is astonishing, given the Arbitrator’s failure to consider the evidence holistically. There was evidence of the Applicant’s witness, which was uncontested in material respects, yet there is no consideration of Van Vuuren’s testimony. How the Arbitrator could make a finding on a balance of probabilities without considering the probabilities is shocking.

80.     The Arbitrator should have taken cognisance of the material evidence placed before her, and she had failed to assess the totality of the evidence presented. It was incumbent upon her to make credibility findings and state why she accepted one version and rejected another, which she failed to do.

81.     The Arbitrator had no sense of how to accomplish this task and he failed in her duties as Arbitrator. There was no analysis in the arbitration award, and evidently, the Arbitrator was wholly incapable of analysing the evidence.

82.     The essential ingredients of an assessment of the credibility of the witnesses and the inherent probability or improbability of the versions before her are not there in the arbitration award. The Arbitrator did not undertake a complete analysis of the evidence and the probabilities as they presented themselves during the arbitration proceedings, and she did not consider the evidence in light of the probabilities, self-interest, and credibility of the witnesses.

83.     The Arbitrator was required to make a factual adjudication on the issue of misconduct, and she had to do that by considering and assessing all the facts placed before her. The Arbitrator did none of that. Glaringly absent from the award is any consideration of the probability of the versions, considered against all the evidence presented.

84.     The Arbitrator’s analysis of the evidence presented is sketchy and bereft of any detail regarding her reasoning and assessment of the facts and the evidence placed before her. In fact, the Arbitrator’s analysis of the evidence is contained in four paragraphs, with no analysis of the entire version and credibility of the Applicant’s witness, Van Vuuren. Therefore, the Arbitrator evidently failed to consider the real issue before her.

Conclusion

 

85.     I have to consider the grounds for review within the context of the test this Court must apply in deciding whether the Arbitrator's decision is reviewable. The ultimate question is whether, holistically viewed, the decision taken by the Arbitrator was reasonable based on the evidence placed before him.

86.     The review test to be applied in casu is a stringent and conservative test of reasonableness. The Applicant has to show that the Arbitrator arrived at an unreasonable result.

87.     In Bestel v Astral Operations Ltd and others,[15]  the LAC considered the limited scope possessed by this Court to review an arbitration award and accepted that an Arbitrator’s finding would be unreasonable if the finding is unsupported by any evidence if it is based on speculation by the Arbitrator if it is disconnected from the evidence, if it is supported by evidence that is insufficiently reasonable to justify the decision or if it was made in ignorance of evidence that was not contradicted.

88.     I must ascertain whether the Arbitrator considered the principal issue before her, evaluated the facts presented and came to a reasonable conclusion. After perusing the transcribed record, the arbitration award, and the grounds for review raised by the Applicant, I have considered this question.

89.     On a holistic consideration of the facts before the Arbitrator, her finding that Mr Nkuna’s dismissal was substantively unfair is disconnected from the evidence and is not reasonable.

90.     In summary: the Arbitrator failed to consider the central dispute that served before him, she ignored relevant evidence, she failed to take into account the totality of the evidence, she failed to conduct a proper appraisal of the evidence, she rejected the Applicant’s version without any proper analysis and evaluation of the evidence, and she had no regard to evidence that was material and relevant. All of these constitute material misdirections.

91.     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.

92.     A reviewing 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 reviewing 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.

93.     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 set out in Sidumo.

94.     It follows that the arbitration award is to be interfered with on review.

 

Relief

 

95.     This leaves the issue of relief.

96.     The Applicant seeks for the arbitration award to be reviewed, set aside, and substituted with a finding that Mr Nkuna’s dismissal was substantively fair. In the alternative, the Applicant seeks an order as this court deems appropriate for the further conduct of the proceedings.

97.     If an arbitration award is set aside on review, this Court has the discretion whether or not to determine the matter finally.

98.     In casu, the Arbitrator failed to consider the evidence holistically and he did not determine the real dispute. This ultimately distorted the outcome of the arbitration proceedings. I am not inclined to substitute the award where principal and material issues were not adequately determined and where the evidence was not considered at all.

99.     In my view, the most appropriate remedy is to remit the dispute to the First Respondent for a hearing de novo, as it would be in the interest of the parties and justice to have the matter properly ventilated and decided.

 

Costs

 

100.     This Court has a wide discretion in respect of costs.

101.     This is a matter where, ultimately, the Arbitrator got it wrong. The Fourth Respondent was entitled to defend an award issued in its favour by opposing the application and should not be punished for doing so. The interest of justice will be best served by making no order as to cost.

102.     In the premises, I make the following order.

 

Order

 

a)     The arbitration award dated 18 December 2020 and issued under case number NBCS5-20 is reviewed and set aside.

b)     The dispute is remitted to the First Respondent for a hearing de novo before an Arbitrator other than the Second Respondent;

c)     There is no order as to costs.

 

Tendayi Kadungure

Acting Judge of the Labour Court of South Africa

 

Appearances:

 

For the Applicant: C Hufkie from Macgregor Erasmus Attorneys

                             

For the Fourth Respondent: W Ngwaba from FAWU

                   

                     

 

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