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REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JR 604/12

In the matter between:

PRESTIGE CLEANING SERVICES (PTY) LTD                                                         Applicant

and

COMMISSIONER JD SELLO N.O                                                                 First Respondent

THE COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION                                                            Second Respondent

PHISTOS MABOKE LETSOALO                                                                 Third Respondent

Date heard:              20 May 2015

Date delivered:       26 April 2016

JUDGMENT

WALELE, AJ

Introduction

[1] This is an application to review and set aside an arbitration award in terms of section (145) (2) o

[2] f the LRA issued by the First Respondent in his capacity as the Commissioner. The application is unopposed.

Background to the dispute

[3] The Third Respondent was employed by the Applicant in April 2003 in the capacity of a supervisor at its Monte Casino site and was dismissed pursuant to a disciplinary process on 24 October 2011.

[4] The Third Respondent was found guilty of failing to carry out an instruction from his manager Petrus Nortje to check the machine and report back to him. The Third Respondent was on a final written warning for the same offence and was dismissed.

[5] The Third Respondent was the only employee at the site that had particular knowledge of the workings of the machine albeit that several other employees were able to operate the machine. It is in this regard that it was essential that the Third Respondent was instructed to determine the specifics of the functioning or not of the machine.

[6] On 7 October 2011, the Applicant’s scrubbing machine had been reported as not functioning properly and a technician was called out to repair it.

[7] On 9 October 2011, the same scrubbing machine was again reported to have malfunctioned and on 10 October 2011, Nortje instructed the Third Respondent due to his particular training and knowledge of the functioning of the machine to inspect the machine and report back to him on whether the machine was functional.

[8] The Third Respondent reported to Nortje later that day and informed him that he had inspected the machine and that it was not working at all. The Applicant as a result called out the technician and it was found that the machine was functioning properly and that it started straightaway. The call out fee for the technician was R 1200.00.

The award

[9] In his award, the Commissioner found that the dismissal of the Third Respondent was substantively unfair but procedurally fair and ordered the Applicant to compensate the Third Respondent eight months’ salary amounting to R 29248, 00.

[10] The First Respondent found that the dismissal was substantively unfair in that the Applicant failed to discharge the onus that rested upon it. In particular, the Applicant did not call the technician to testify that the machine and failed to submit documentary proof in the form of an invoice that it suffered the loss of R 1200 as a result of the actions of the Third Respondent to corroborate the evidence of Nortje. The Applicant failed to provide any explanation for the absence of the technician. The Applicant failed to call Johannes to corroborate the evidence of Nortje. The testimony of Johannes was crucial at the arbitration hearing given that the Third Respondent had failed to inspect the machine and instead sent Johannes.

[11] The First Respondent rejected the evidence of Nortje on the basis that he forgot the name of the person that the Third Respondent had sent to inspect the machine.

Grounds of review

[12] The Applicant raised the following grounds of review :

12.1    The First Respondent applied his mind to irrelevant material and his consequent findings should be reviewed and set aside. The failure to call Johannes was not material to the allegation and it was not in dispute that the Johannes had inspected the machine and reported that it was not working.

12.2      It was only during the cross examination of the Third Respondent and after the Applicant had closed its case that the Third Respondent claimed that he did not agree with the minutes of the disciplinary hearing that reflected that he had asked Johannes to check the scrubbing machine.

[13] The First Respondent rejected the evidence of Nortje and preferred that of the Third Respondent and in doing so it rendered the award fundamentally flawed for the following reasons:

13.1      The Third Respondent had initially informed him that the machine was totally broken hence the instruction to examine the machine for more specifics.

13.2    There was no reason to falsely accuse the Third Respondent whereas the Third Respondent had every reason to do so in that he was already on a final written warning and would profit from a favourable award.

13.2      The First Respondent paid no heed to the Third Respondent’s previous inconsistent statements at his disciplinary enquiry. The First Respondent ignored the evidence of Pienaar.

13.3      It is improbable that the Third Respondent advised Nortje of the exact problem namely that the machine did not touch the floor and the machine was not sucking up water as Nortje would have relayed this to the technician.

13.4      The First Respondent confused the evidence as he recorded that the Third Respondent had checked the machine and had asked Johannes to check the machine. The Third Respondent also said that he checked the machine after it broke down on Sunday. These sentences are confusing as it cannot be gauged whether he inspected the machine himself on Monday 10 October 2011 and if he had done so it would be illogical to have asked Johannes to do the same thing especially after he had allegedly inspected the machine on the previous day.

13.5       Nortje’s criticism was unreasonable when he made a simple mistake about the name of the person being Philemon instead of Johannes. Nortje acknowledged the mistake immediately during the proceedings and this was ignored by the First Respondent.

The legal principles.

[14] In determining whether the award is one that a reasonable arbitrator could have reached based on the evidence/material before him/her, a review Court must ascertain whether the arbitrator considered the principal issue before him or her; evaluated the facts presented at the hearing and came to a conclusion which was reasonable to justify the decisions he or she arrived at.

[15] The test applicable to review proceedings has been enunciated by the Constitutional Court in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[1] and more recently in this Court in Goldfields Mining SA (Pty) Ltd (Kloof Mining) v CCMA and Others.[2]

[16] The review test is a narrow one. This Court may set an arbitration award aside only if the award represents a decision that is so unreasonable that no reasonable Commissioner could make. The function of the reviewing Court is limited to a determination as to whether the Commissioner’s decision is one that could not be reached by a reasonable decision maker on the available material before him or her; this Court must decide whether the Commissioner’s conduct in the proceedings and which conduct is called into question had the result of an outcome that falls outside the bands of decisions to which a reasonable decision maker would come to on the available material.

[17] The LAC held in Head of Department of Education v Mofokeng[3]  that mere errors of fact or law may not be enough to vitiate the award; something more is required. Flaws in the reasoning of the arbitrator, evidence in the failure to apply the mind, reliance on irrelevant consideration or the ignoring of material factors must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertook the enquiry in the wrong manner or not at all or arrived at an unreasonable result.

[18] Irregularities or errors in relation to the factual issues, therefore, may produce an unreasonable outcome or compelling indication that the arbitrator misconceived enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result.

[19] The LAC in Goldfields Mining SA (Pty) Ltd (Kloof Mining) v CCMA and Others[4] has cautioned against a piecemeal approach to the analysis of the material facts and that the enquiry should be on the consideration of the totality of the evidence. By dealing with it on a piecemeal manner, the decision of the Court assumes the form of an appeal.

[20] In Bestel v Astral Operations Ltd,[5] the LAC emphasised that the ultimate principle upon which the review is based on a justification for the decision as opposed to being considered on whether it correct by the reviewing court. Whatever this court might consider to be a better decision is irrelevant to review proceedings as opposed to an appeal. Thus, great care must be taken to ensure that this distinction, however difficult it is to always maintain, is respected.

[21] The stringency of the Sidumo test was highlighted in Thebe Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v Natinal Bargaining Council for Road Freight Industry and Another.[6]

[22] In order to assail an award on the basis of the Sidumo test, the applicant must assail not only the Commissioner’s reasons but also the result of the award.

Evaluation and analysis

[23] The question before this court is whether the Commissioner’s finding that the first respondent’s dismissal was substantively unfair is one which no reasonable decision-maker could arrive.

[24] The record of the arbitration proceedings reflect that the First Respondent was faced with conflicting versions. The First Respondent in cursory manner indicated that he rejected the evidence of Nortje on the basis that he could not even recall the name of the driver and erroneously referred to Philemon instead of Johannes. Having said so, the First Respondent failed to indicate that the Applicant’s witness corrected himself immediately thereafter and in any event the question related to whether he had complied with the instruction namely that he should inspect the machine himself and not as he had done by sending a driver be it a Philemon or Johannes.

[25] The criticism of the First Respondent for not calling the technician lacks merit. There was no contention about the role and the findings of the technician by the Third Respondent and was far removed from the charge that the Third Respondent faced. There was also no challenge to the amount reflected in the invoice or the fact that the technician was called as the machine was not operational. Thus by basing his conclusion that the Applicant had failed to discharge the onus on the lack of calling this witness in circumstances when it was irrelevant has rendered the outcome unreasonable.

[26] The First Respondent goes further and says that the Applicant’s failure to call Johannes to testify is equally misplaced to the extent that it has resulted in an unreasonable outcome.

[27] This would not have occurred had the First Respondent taken account of the uncontested version of both Pienaar and Nortje when they testified that the Third Respondent had asked Johannes to check the machine instead of doing it himself as instructed.

[28] In these circumstances, it follows thus that there would be no need for the Applicant to have called Johannes to testify.

[29] However, the First Respondent, in probing the role of Johannes during the cross examination of the Third Respondent and after the Applicant had closed its case, elicited the response that he denied that he had asked Johannes to inspect the machine.

[30] The First Respondent, despite the fact that in the first instance, the Third Respondent did not ask Pienaar any questions when he referred to the minutes of the hearing and confirmed that the Third Respondent had admitted that he had asked Johannes to inspect the machine, concludes that the Applicant should have called Johannes to testify. He goes further and concludes that the Applicant had failed to discharge the onus that rests upon it to show that the Third Respondent was guilty of the charge.

[31] Nortje in his testimony relied on the Third Respondent’s acknowledgement that he had sent Johannes to check the machine and that Johannes had confirmed that the machine was ‘totally broken’; (Transcript page 18); Nortje also stated that ‘… you said to me that you got the driver of the machine to check it and did not check it yourself.’[7]

[32] The First Respondent, despite the unchallenged testimony of the Applicant’s witnesses, found that it had not discharged the onus and relies on the response of the Third Respondent elicited by himself during the cross examination of the Third Respondent after the Applicant had closed its case. Undoubtedly, a gross irregularity that would result in an unreasonable outcome.

[33] In the circumstances, there was, thus, no reasonable basis for the First Respondent to reject the uncontested evidence of the Applicant’s witnesses and concluded that it had not discharged the onus to show that the dismissal was fair.

[34] I refer to the matter Goldfields Mining SA Pty Ltd ( Kloof Goldmine) v CCMA and Others[8] in which the Labour Appeal Court held:

‘The questions to ask in a review are: (i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process employed by the Commissioner give the parties a full opportunity to have the say? (ii) Did the Commissioner identify the dispute he or she was required to arbitrate? (iii) Did the Commissioner understand the nature of the dispute he or she was required to arbitrate? (iv) Did the Commissioner deal with the substantial merits of the dispute? (v) Is the Commissioner’s decision one that another decision of could reasonably have arrived at based on the evidence?’

Determination.

[35] In view of the above reasoning by the Commissioner, the grounds of review and taking into consideration the material that was before him, I find that the award departs from the bands of reasonable decisions which the First Respondent may have reached. Notwithstanding the unchallenged evidence presented by the Applicant, the First Respondent took the stance that since the Applicant failed to call the technician and Johannes, it had not discharged the onus to prove that the dismissal was fair.

[36] Where it is alleged that the arbitrator ignored certain material facts, the enquiry is whether indeed this was the case and if so whether these facts were material. If indeed it is found that they were ignored and were material, it follows that the arbitrator would have come to a different conclusion had he taken it into account and, therefore, the result would be prima facie unreasonable.

[37] In the circumstances, the result of the arbitration was one that a reasonable decision maker could not make and that this is an instance, since the result of an outcome falls outside of the band of decisions to which a reasonable decision maker would come to on the available material. The Applicant must, therefore, succeed in its application and the award must be set aside.

[38] I have been placed in possession of the complete record and the bulk of evidence sufficient for this Court to deal with the matter.

Order

1.         The arbitration award issued on 13 February 2012 under case number GAJB 29406-11 is reviewed and set aside.

2.         The arbitration award is substituted with an order that the Third Respondent’s dismissal was substantively and procedurally fair.

3.         There is no order to costs.

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Walele, AJ

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant:                  Advocate W Hutchinson

Instructed by:                         Moodie & Robertson

For the Respondent:             No Appearance

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