IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable
Case No: JR666/2022

In the matter between: 

BIDVEST PROTEAS COIN (PTY) LTD	Applicant 

and 

PTAWU	First Respondent 

DOUGLAS MOTAPO	Second Respondent

DHELIWE MAVUMA N.O	Third Respondent

CCMA	Fourth Respondent 

Heard:	07 February 2023	
Delivered:	13 March 2023

JUDGMENT

MTHALANE, AJ 

Introduction

[1]	This is an unopposed application to review and set aside the arbitration award of the Third Respondent issued on 8 February 2022 under case number GAW13602-21. 

[2]	In her award, the Commissioner found that the Applicant had unfairly dismissed the Second Respondent, ordered that the Second Respondent be retrospectively reinstated and awarded him compensation in an amount equivalent to four months’ remuneration, some R 38 609.76 (Thirty-eight thousand six hundred and nine rand and seventy-six cents). 

Background facts

[3]	The Second Respondent (Motapo) was employed by the Applicant as a NOC operator for the Applicant until his dismissal on 30 September 2021 for reasons relating to misconduct.

[4]	Motapo was charged for misconduct after it was discovered that he failed to appropriately action a duress panic signal from the Applicant’s client on the 13th of August 2021. At the time, the Applicant’s client triggered a duress panic signal at about 07:04:19 while Motapo only despatched armed response after 07:31, in contravention of the Applicant’s policies and procedures. 

[5]	Motapo was accordingly found to be in breach of the Applicants policies and procedures and subsequently charged with (1) dereliction of duties (2) dishonesty and (3) bringing the companies name into disrepute. Motapo was taken through a written misconduct disciplinary hearing and was ultimately found guilty of the misconduct and dismissed.

[6]	Motapo subsequently referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) on the basis that he was unfairly dismissed by the Applicant. 

Condonation

[7]	This application was preceded by a condonation application for the late filing of the review application which was five days late due to the hospitalisation of the then applicant’s attorney. The application was not opposed. 

[8]	After taking into consideration all the legal principles applicable to condonation applications, condonation for the late delivery of the review application is hereby granted based on the short extent of the delay and the acceptable explanation. 

Grounds for review

[9]	The Applicant raised the following grounds for review:

9.1.	The Commissioner placed a heavier burden of proof on the Applicant, which is unreasonable and as a result thereof, the Applicant suffered prejudice;
9.2.	The Commissioner was unwilling to hear oral evidence. The Applicant and Second Respondent’s attorneys were directed to only make oral submissions regarding the dispute. The Applicant was thus denied an opportunity to lead the necessary evidence to prove that the Second Respondent’s dismissal was procedurally and substantively fair. This amounted to gross irregularity; 
9.3.	The Commissioner’s finding that the Second Respondent’s dismissal was procedurally unfair is incorrect as the Commissioner sets out that; (1) there was no investigation, (2) there was no explanation of the charges, (3) no hearing was convened, (4) the Second Respondent was not afforded an opportunity to give oral evidence, and (5) the Applicant failed to comply with Schedule 8 of the Labour Relations Act; and
9.4.	The Commissioner failed to consider that the Second Respondent’s actions damaged his relationship with the Applicant, along with the Applicant’s relationship with its client when making an order for reinstatement. 

Review test

[10]	The review test is now trite and has been expounded in various Labour Appeal Court cases and simplified in Head of the Department of Education v Mofokeng and Others as follows:

‘[30] 	The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, … this court in Gold Fields … held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or 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…

[31] 	….

[32]	… To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result …”

Evaluation

[11]	There are four issues before me, one dealing with the standard of proof imposed by the Commissioner, the second one pertaining to the Commissioner’s decision on the form in which the arbitration was to be conducted, the third one being the Commissioner’s finding and the fourth one dealing with the arbitration award that the Second Respondent be reinstated. 

[12]	I will first address the issue pertaining to the Commissioner’s decision on the form of the arbitration hearing, which was in a part-heard, part-written manner. Should I find that the Commission erred in relation to this issue, then the award will be reviewable and it will not be necessary for me to deal with the other grounds for review.

Form of Proceedings

[13]	In considering the form which arbitration proceedings may be conducted, the CCMA Guidelines: Misconduct Arbitration’s Guideline on Misconduct Arbitration sets this out in Section B. Section B sets out the following:
 
11. 	Arbitrators have a discretion to determine the form in which an arbitration is conducted; the LRA does not require arbitrators to act in the same manner as a court. An arbitrator should ensure that the parties are aware of the arbitrator’s powers and the procedure to be followed. This is particularly important if the parties or their representatives have little or no experience of CCMA proceedings.
12. 	In terms of section 138 (1) of the LRA, an arbitrator must conduct an arbitration in a manner that the arbitrator considers appropriate to—

12.1	determine the dispute fairly and quickly; and
12.2	deal with the substantial merits of the dispute with the minimum of legal formalities. In order to deal with “the substantial merits” of a dispute an arbitrator should not allow technicalities to prevent the full picture of relevant events being placed before the arbitrator.
……………….

16. 	An arbitrator must conduct the arbitration impartially. This means that an arbitrator must act in a manner that is fair to both parties and not engage in conduct that is biased or that might reasonably give rise to a party forming a perception that the arbitrator is biased. An arbitrator must not seek to expedite an arbitration in a manner that is unfair to a party or is unreasonable.

[14]	The CCMA’s Guidelines: Misconduct Arbitration’s Guideline on Misconduct Arbitration clearly set out that the form which an arbitration may take or may be conducted. This was the case in the matter at hand. However, in the matter in casu, there was no version of events on paper or otherwise from the Second Respondent. In the absence of such a version, I do not understand how the Commissioner could have reached is findings.

[15]	There is numerous case law which calls for evidence to be adduced by employees who have been charged with misconduct. One such matter is that of Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration and Others where the court held that:

“It follows that the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer, and notice of that decision.”

[16]	Furthermore, in Ramabele v Head of Department: Free State Provincial Department of Education and others the court held that:

“[34] 	In the consideration of the fairness of the dismissal, the arbitrator was required to have regard to the totality of the circumstances. This required the arbitrator to have regard to the allegations raised, the evidence put up, to resolve factual disputes in the manner detailed in SFW Group Ltd and Another v Martell et Cie and others and determine whether the allegations against the appellant had been proved on a balance of probabilities."

[17]	The Commissioner, in failing to ensure that both parties adduce evidence and state their case, has rendered his award susceptible to review. This is reflected in the matter of SA Social Security Agency v National Education Health and Allied Workers Union obo Punzi and others where the court held that:

“In the absence of such a stated case, oral evidence should be led on the material facts in dispute at arbitrations in terms of the LRA. Commissioners and arbitrators should not condone an agreement between parties that no oral evidence be led unless such a stated case has been agreed, and on which they may draw legal conclusions. Although parties may regard submitting documents and argument as a fast way of resolving a dispute on the day of arbitration, it in fact renders the award issued susceptible to review. In the result, the principle of speedy resolution of disputes is ultimately sacrificed.”

[18]	I therefore find the award reviewable. I do not need to consider the remaining grounds for review considering my finding. 

[19]	In the premise the following order is made:

Order 

1.	The award is reviewed and set aside and matter remitted to the CCMA for a fresh hearing before another commissioner other than the Third Respondent.

2.	There is no order as to costs. 

G. Mthalane
Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:	Lancaster Kungoane Attorneys

For the Respondent:	PTAWU