---

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, HELD AT JOHANNESBURG

JUDGMENT

case no: JR 613/15

In the matter between:

LESETJA VICTOR SEROTE                                                                                      Applicant

And

COMMISSION FOR CONCILIATION                                                            First Respondent

MEDIATION AND ARBITRATION

WILLEM KOEKEMOER N.O.                                                                   Second Respondent

JD GROUP (PTY) LTD t/a RUSSELS                                                          Third Respondent

Heard: 13 October 2016

Delivered: 24 October 2016

judgment

VAN NIEKERK J

[1] This is an application to review and set aside an arbitration award issued by the second respondent, who whom I shall refer as ‘the arbitrator’. In his award, the arbitrator found that the dismissal of the applicant by the third respondent was substantively and procedurally unfair, but declined to grant compensation on the basis that the third respondent after the dismissal had unconditionally reinstated the applicant, and that the applicant accepted the reinstatement by reporting for duty.

[2] The initial enquiry that served before the arbitrator was the existence or otherwise of a dismissal. The arbitrator concluded that the employee had been dismissed on 11 December 2014. He found that the dismissal was procedurally and substantively unfair. He did so on the basis that the third respondent had reversed its decision to dismiss the applicant and elected to reinstate him, which was tantamount to an acknowledgement that the dismissal was unfair. However, the arbitrator went on to find that the third respondent had immediately and unconditionally reinstated the employee and that the employee had accepted the reinstatement by reporting for work on 13 December 2014. That being so, the employee was not entitled to any compensation.

[3] The arbitrator was confronted by a material dispute of fact. The evidence is contained in the record and summarised by the arbitrator, and I do not intend to repeat it here. In brief terms, the third respondent’s version was that Isobel Fourie, the branch manager, had decided after a discussion with HR that the applicant’s dismissal, effected on 11 December 2014, should be reversed and that he should be reinstated. On 12 December 2014, she personally contacted the applicant on a number that he had provided and told him to report for work. He did so on 13 December 2014, when the applicant dealt with a customer. The applicant did not return the next day or for the rest of the month. The applicant was subsequently dismissed after a hearing on 9 January 2015 on a charge of absenteeism. The applicant’s payslip for the month of December reflected that the applicant was employed during that month. The applicant’s version was that having been dismissed on 11 December 2014, he filed an internal appeal. He went to the third respondent’s premises on 13 December 2014 to arrange for an appeal hearing. He denied that Fourie had phoned him to tell him to return to work; she had phoned his brother who told him that he should return to work. Fourie was not present at work on 13 December 2014 (a fact not disputed by Fourie, who had the day off). The applicant also denied that his December payslip indicated that he had worked on 13 December.

[4] The arbitrator’s assessment of the competing versions before him and the decision to which he came are reflected in paragraph 41 to 43 of his award. They read as follows:

“41. On 13 December 2014, the applicant attended at his place of work for at least five hours. Said date was a Saturday and Fourie, the branch manager was not present on the said date, which was the fact the applicant was aware of, considering the probabilities.

42. I could not conclude that the purpose of the applicant to attend at his place of work on the Saturday was to arrange matters of his appeal he lodged. If that was the case, as the applicant alleges, and nobody was present to help him in that regard, he would most probably have left the work premises immediately when he learned that nobody could help him on that morning. It is also improbable that an employee with the stature of the applicant and with the knowledge of the labour law the applicant has would attend on a Saturday with the purpose to deal with aspects relating to his appeal.

43. The evidence as a whole suggests that the applicant accepted his immediate reinstatement that was communicated to him on 12 December 2014 and that he then reported for duty on 13 December. I find that it is more probable that the applicant then opted not to return to his place of work from 15 December onwards and rather rely on his unfair dismissal on 11 December to pursue his matter at this forum merely to claim compensation.”

[5] The applicant’s grounds for review are difficult to discern from the founding affidavit. In the main, he suggests that not all of the evidence submitted was considered by the arbitrator and in particular, cites the manual attendance register which indicates, so he submits, that he did not report for duty. In his supplementary affidavit, the applicant explains the significance of his payslips and his interpretation of them.

[6] This court is entitled to interfere with an award made by an arbitrator if and only if the arbitrator misconceived the nature of the enquiry (and thus denied the parties a fair hearing) or committed a reviewable irregularity which had the consequence of an unreasonable result. The applicant contends for the latter, on the basis reflected above. The courts have been clear that the failure by an arbitrator to attach particular weight to evidence or attachment of weight to the relevant evidence and the like is not in itself a basis for review; the resultant decision must fall outside of a band of decisions to which reasonable decision-makers could come on the same material (see Herholdt v Nedbank Ltd [2013] 11 BLLR 1074 (SCA)).

[7] The Labour Appeal Court recently affirmed that while the failure of an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be held to be an irregularity, before the irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome (see Head of Dept. of Education v Mofokeng [2015] 1 BLLR 50 (LAC), at paragraph 30). In other words, whether a decision is unreasonable in its result ultimately requires this court to consider whether apart from the flawed reasons of or any irregularity by the arbitrator, the result could still be reasonably reached in the light of the issues and the evidence. This is what ultimately distinguishes the right of review under the Act from a right of appeal, a remedy that is not open to the applicant.

[8] In the present instance, the applicant does not contend that the arbitrator’s decision was unreasonable in the sense referred to above. His contention is that if the arbitrator had had regard to all of the evidence that served before him, he would have come to a different conclusion. In this sense, the applicant has presented the case as one of appeal – he has invited the court to find that the arbitrator’s decision is wrong.

[9] The arbitrator did not misconceive the nature of the enquiry. He recognised that he was required to resolve a factual dispute and determine which of the versions before him was the more probable. He took into account that the applicant was at work on 13 December 2014 and that he remained there for 5 hours. He further took into account that it was a Saturday and that Fourie was not present, it being her day off. The conclusion that the applicant had not attended at work only to deal with the logistics of his appeal hearing is by no means unreasonable. If that were the case, the applicant would in all probability not have attended the store on a Saturday, and he would have left immediately he discovered that Fourie was not present. The fact that the third respondent continued after 13 December 2014 to treat the applicant as an employee (to the point of sending him request to return to work and to proceed to a disciplinary enquiry in January 2015, in which the applicant participated) are all facts that support the third respondent’s version. It is improbable that the applicant would have participated in the proceedings if he was of the view that he had been dismissed on 11 December the previous year and never reinstated. In short, even if one were to exclude the evidence of the attendance registers and the applicant’s interpretations of his payslip, it was not unreasonable for the arbitrator to conclude that the probabilities were that the applicant was unconditionally reinstated on 12 December 2014 and that he was advised of his reinstatement. Those facts alone disentitled him to any award of compensation.

[10] The applicant has failed to establish that the arbitrator’s decision fell outside of the band of decisions to which a reasonable decision-maker could come on the available evidence. The application stands to be dismissed. I will accept, for the purposes of the exercise of a discretion in terms of s 162 of the Act, that he has not acted mala fide rather than out of a sense of grievance, albeit misguided. I intend therefore to make no order as to costs.

I make the following order:

1. The application is dismissed.

ANDRE VAN NIEKERK

JUDGE OF THE LABOUR COURT

REPRESENTATION

For the applicant: In person

For the third respondent: Mr Orton, Snyman Associates

---