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IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

 

Case No: PR152/2021

 

In the matter between:

 

RICARDO SEBASTIAN SARRAHWITZ	Applicant
and
MOTOR INDUSTRY BARGAINING COUNCIL (DRC)	First Respondent
COMMISSIONER JONATHAN GRUSS	Second Respondent
AUTOZONE HOLDINGS (PTY) LTD	Third Respondent

Date heard: 25 May 2023

Delivered: This judgment was handed down electronically by circulation to the applicant’s and the respondent’s legal representatives by email, publication on the Labour Court website and release to SAFLII. The date for handing down is deemed to be on 13 October 2023.

JUDGMENT

JOLWANA AJ

Introduction.

[1] The applicant instituted these proceedings seeking the review and setting aside of an arbitration award issued by the second respondent (the arbitrator) on 22 July 2021 in which he found that the applicant’s dismissal was substantively fair.  The third respondent opposes this application and contends that there was no defect in the award and as such it is not reviewable in terms of section 145 of the Labour Relations Act 66 of 1995[1] (the LRA).

Background.

[2] The applicant was under the employ of the third respondent since 20 July 2015.  At the time of the events leading to his dismissal he was the manager of the third respondent’s Kirkwood branch and as such, the most senior employee in that branch.  Following a disciplinary hearing he was found guilty and dismissed on charges of misconduct which can be summarized as follows:

1. Deserting the workplace without authorization on 31 August 2020, it being alleged that he failed to report for duty and open the store for trading thereby deserting the workplace.  As manager of the Kirkwood branch of the third respondent, he failed to ensure that alternative arrangements were made for the store to trade;

2. Unauthorized absenteeism in that he failed to follow known company policies and procedures with regard to absenteeism in that he failed to report for duty from 31 August 2020 to 02 September 2020.

3. Insubordination in that he failed to adhere to the reasonable instructions given to him.

[3] The applicant was called to a disciplinary hearing on the above mentioned charges and upon being found guilty and dismissed, he referred an unfair dismissal dispute to the first respondent, the Bargaining Council.  At the conclusion of the arbitration proceedings the arbitrator found the applicant’s dismissal to be substantively fair  ̶  the substantive fairness of the applicant’s dismissal having been the only issue for determination by the arbitrator as the applicant did not challenge the procedural fairness of his dismissal.

[4] The applicant’s case, briefly stated, is that the arbitrator conducted himself in a grossly irregular manner in the exercise of his duties which directly resulted in an outcome that no other reasonable commissioner could reach.  He complains that the commissioner’s findings are entirely disconnected from the evidence and in fact the commissioner misconstrued the nature of the enquiry in that he failed to recognize that the charges levelled against him expressly contained an element of intent which was not proven.

[5] In its answering affidavit the third respondent brings to light relevant background facts which, inexplicably, the applicant chose not bring to the fore in his founding and supplementary affidavits.  I consider them to be of some significance to contextualize the charges the applicant faced and the material that was before the arbitrator.  On Saturday the 29 August 2020 at about 13:10 the applicant sent on email to Mr Barnard, the third respondent’s regional operations manager at the time who was as such, the direct supervisor of the applicant and to the third respondent’s previous branch manager at the third respondent’s Kirkwood branch, Mr Botha. 

[6] In that email correspondence the applicant, in various parts of the same five pages or so long email, says the following:

“You are about to overcome something you’ve been dealing with.  Your mind and heart will soon be at peace again.  The weight is being lifted off you right now.  Breathe, be patient, Everything will be okay…

The pill that everyone wants TRUTH but can’t seem to swallow…

I’m sick and tired of you, Jannie [Mr Barnard] that is using your autocratic and intimidating behavior so that vulnerable people that is trying their best must fear you and Frans [Mr Botha] going around saying that we must be lucky to still have jobs.  Please note I don’t fear anyone and this is where I’m making use of my freedom of speech and I hope that the “OPEN DOOR POLICY” and “ETHICS CODE” really exists.  What you said during our cluster meeting on Tuesday morning by reminding us that you can take out anyone by the end of the day that goes against you and in previous meeting always using the signing of the blank white paper as an example of intimidation – well like you said on a whatsapp message…

Quote “SO THIS IS WHERE I’M GETTING OFF MY ROCKER, SO PLEASE CATCH A BLOODY WAKE UP – PLEASE WAKE UP”

Are you trying to show that you are like the guy that is walking his dog and if anyone gets closer you are going to bite – in fact it’s the dog that is going to bite.  I think I need to wake up to reality because this sugar coating, empty promises and lies is getting too much.

There’s a saying:

You don’t get a bad student only a bad teacher or you don’t get a good student only a good teacher and to be honest I’ve learnt and still learning from the two best teachers…

TRUST, LOYALTY, RESPECT – mess up 1, you lose all 3… Now you can get me for insubordination or disrespectful behavior then you and Frans will maybe feel better because some people can’t function without negativity because bringing down others makes them feel better.

Because I’m me and I don’t like pushing others down to lift myself up – please note my intention is seeking assistance for Discrimination, Unfair Labour practice, Favouritism, Intimidation, Exploitation and Defamation that I’m experiencing here at Autozone.

Not everyone gets the same version of me.  One person might tell you I’m an amazing beautiful soul.  Another person will say I’m a cold hearted …hole.  Believe them both.  I act accordingly.

…

The morning of the 15.05.2020 when you call me regarding the redeployment and why I don’t send it.  I told you that the parts is a specific customer but since you like to hear your own voice and always have that my way or the highway attitude I had to deal with a difficult customer.

Even when I tried to explain to you why I was late you didn’t really want to listen after all the time that is spent after hours working you jump down my throat for being twenty minutes late.

Next week I’m taking leave from the 31.8.2020 – 04.09.2020 because ever since I worked here I always had to cancel my leave or lose it due to unforeseen circumstances at this branch.”

[7]   There are other serious allegations made in the third respondent’s answering affidavit to which the applicant has elected not to give a direct response dealing with such allegations.  I refer to some of them below:

“18. On Saturday, 29 August 2020, at approximately 13h10 the applicant sent an email to myself (I was the Regional Operations Manager of the Third Respondent at this time and I was his direct superior at the time) and Mr Frans Botha, the previous Branch Manager of Kirkwood Branch.  This email contained inter alia numerous allegations, threats and contemptuous remarks towards the Third Respondent and its management.  The Applicant, furthermore, in this email advised the Third Respondent that he will be taking leave from 31 August 2020 until 4 September 2020.

19.  On Sunday, 30 August 2020, I became aware of the email above and received forwarded WhatsApp messages from the Applicant that three of the staff members of the Kirkwood Branch had resigned with immediate effect.  I then attempted to call the Applicant, however, the Applicant did not answer the calls or respond to my messages.

20. The Applicant’s leave was then declined due to the above mentioned crisis.

21. I contacted Mr Cecil September, the Uitenhage Branch Manager, and advised him of the staff resignations at the Kirkwood Branch as well as the Applicant’s correspondence.  I then instructed Mr September to take Mr Stanton Botha, a Salesman of the Uitenhage Branch, to attend to the Kirkwood Branch the following day, being 31 August 2020.

22. At that time, we only had 4 employees at the Kirkwood branch, which included the Applicant, and therefore we were presented with a crisis as all our staff (excluding the Applicant) had resigned and the Applicant had informed us he would be taking leave and further, did not correspond with me.

23. Three staff members, who were all subordinates of the Applicant, resigned with immediately effect, leaving only the Applicant to attend to the operations of the store and still, at that time, the Applicant decided to take unauthorized leave immediately after and blatantly refuses to work with his superior to resolve the situation.

24. On Monday, 31 August 2020 at 07h27, I sent a message to the Applicant to instruct him to report for duty on the same day and to attend to a meeting with me to discuss the Applicant’s concerns.  At approximately 10h00 and 12h35 on the same day, I had to again send the Applicant correspondence to confirm that his leave had been declined and that he is to report for duty or make contact with him (sic) within 24 hours in order to discuss the issue of staff resignations at the branch.  Mr September and Mr Botha arrived at the Kirkwood Branch at approximately 08h00.  The Applicant was there and opened up the store for them.  The Applicant then continued to do a handover to Mr September and Mr Botha and went to make change for the store.  The applicant left the workplace before 12h00 and only returned later that day to collect the email correspondence that I had sent him and was advised by Mr September of a disgruntled customer who made enquiries at the store about a part that he was waiting for (lower control arm).  This was confirmed by the testimony of myself, Mr September and Mr Botha and the Applicant himself during the arbitration.

25. I also asked Cecile to let the Applicant know that I was on my way to the Kirkwood branch and that I wanted to speak to him when I got there.

26. I was informed that the Applicant did not want to speak to me and that I needed to speak to Cecile, if I wanted to communicate with him.”

[8]   These are obviously very detailed factual averments which contained serious allegations about the conduct of the applicant.  For those reasons a much detailed account of the applicant’s version of events was to be expected.  However, in addition to not dealing with these issues in his founding affidavit and in his supplementary affidavit, the applicant’s response in his replying affidavit was not only terse and failed to engage with these factual allegations but also he basically said nothing to the contrary.  The following is the applicant’s terse response in his replying affidavit.

“8 AD PARAGRAPH 14-59 THEREOF:

The contents of these paragraphs are noted in so far as it corresponds with the evidence as per the transcribed record which served before the Commissioner and it will not be required to respond to each and every submission only in so far it purports to be a summary of the evidence which served before the Commissioner and which is required to be evaluated in its totality.  I stand by all my submissions as contained in the founding and supplementary affidavit.”

[9] The first thing to point out is that other than not dealing with the third respondent’s evidence which in any event largely corresponds with its evidence that was given before the arbitrator, the applicant does not deny the third respondent’s allegations about what actually took place.  He does not even try to put up a different version of events to the one put up by the third respondent.  He, in a single very short paragraph, lumps together, detailed evidence of no less than 45 paragraphs without even making any attempt to dispute it directly or indirectly.  As I said before, much of that evidence is largely the same evidence that was given on behalf of the third respondent during the arbitration proceedings all of which was therefore part of the material that was before the arbitrator including the email correspondence when the arbitrator made the decision that he did.

[10]   The importance of this also lies in the fact that in the applicant’s response referred to above he says that he is not going to respond to each and every submission only in so far as it purports to be a summary of the evidence which served before the commissioner and which is required to be evaluated in its totality.  He then says he stands by all his submissions as contained in the founding and supplementary affidavit.  Herein lies the problem.  In his evidence before the commissioner, ever regard being had to the fact that he was unrepresented, his evidence was incoherent and full of contradictions, bare denials and ultimately argumentative.  All these would not have escaped being noticed by his legal representatives when his affidavits were drafted.  A thorough going exercise would have been expected that sought to candidly deal with the material that was before the commissioner in trying to properly ground the grounds of review contextually.  None of this has been done and in fact the factual allegations of the third respondent which are grounded on the material that was before the commissioner are not challenged at all.

[11]   When the applicant attempts to deal with whether or not he is guilty of the charges that were preferred against him, he basically admits being guilty, albeit indirectly when he does not make a bare denial or becomes argumentative.  His admission is jumbled together with criticism of the commissioner on what appears to be intended to be grounds of review.  He criticizes the commissioner for failing to play an inquisitorial role and not lending a helping hand when it was needed which is then said to be a gross irregularity.  The commissioner is also accused of failing to advise the applicant about a right to apply for a postponement for purposes of calling a witness which he wanted to subpoena.  The nature of the evidence that that witness would have given remains up in the air.  This, bearing in mind that in respect of the charge of deserting the workplace he admits to what he calls leaving work early on 31 August 2020 which he says should have attracted a sanction of progressive discipline.  He also admits not being at work at all on the 02 September 2020.

[12]   In respect of the charge of insubordination the applicant does not deny having committed it.  He merely points out that he was not charged with gross insubordination and says that the sanction should have been that of progressive discipline and not dismissal.  Therefore, on his own evidence objectively assessed, the applicant was absent from work without authorization on 31 August 2020 and on 02 September 2020 and thus deserted the workplace.  He says he arrived at the store on the 31 August 2020, met Cecil to open the store and thereafter left “only to be called back by Cecil at 10:00 am” which is when he learned that his leave had been declined.  It is clear therefore that at the time he left, it was not because he was under the impression that his application for leave had been granted.  He was not confused about that, he just left regardless, knowing fully well that his application for leave had been declined. 

[13]   When he did come back at 10:00 am, again on his own version and after having learned that his leave had been declined, he again left at 12:00.  He then says that his refusal to communicate with Mr Barnard was regarded as amounting to persistent insubordination as he told Mr Barnard that if he wanted to communicate with him he should do so through Cecil.  There is similarly no evidence of the applicant denying that he ever refused to speak to Mr Barnard.  In fact he admits refusing to speak to Mr Barnard which, in any event, in his email the applicant made it clear that if Mr Barnard wanted to speak to him he should do so through cecil.  There is no evidence of even an attempt on his part to try and communicate with Mr Barnard about whatever his circumstances were leading to his deserting the workplace on the 31 August 2020 and being absent on 2 September 2020 which he admits.  With all of this I do not know what difference the witness he allegedly intended to call would have made when he basically admits guilt on all the charges that were preferred against him.  Even his absence on the 01 September 2020 was not authorized.  The façade of him assisting a disgruntted customer does not help him either as that assistance should have been authorized or at the very least given after he would have helped in addressing the crisis at his workplace instead of spending the whole day in Gqeberha.  He also admits attending to his own private matters on the 01 September 2020.

[14]   This again also goes to the second ground of review which is said to be the arbitrator’s failure to evaluate credibility and probabilities which the applicant says resulted in an unreasonable outcome.  The applicant is clearly confused about what in essence his own case is.  How a different evaluation of credibility and probabilities could have led to a different outcome when the evidence, objectively assessed shows that the applicant was guilty of all the charges is difficult to understand.  This is more so that he gave no real countervailing evidence even at the arbitration proceedings.  The fact is that even though the applicant denied committing the misconduct he was charged with, he went on to give evidence in which he not only failed to show that he was not guilty of the offences but in so many words, he admitted being guilty where he did not make bare denials.  This therefore means that his own evidence is largely directly aligned with the outcome of being guilty in respect of the charges preferred against him.

[15]   This leaves one other ground of review which is the appropriateness of the sanction.  This is where the issue of progressive discipline becomes even more pronounced.  In other words, in light of the fact that in charging him, the word “gross” was not used in respect of any of the charges, the applicant contends that he should not have been given a sanction of dismissal.  However, having been given an opportunity to do so, the applicant elected not to give his own evidence or make submissions to show that even if he was found guilty he should not be dismissed as a sanction.  His case for progressive discipline is also said to be based on the fact that he was a first offender in respect of the offences for which he was charged.  The incident itself is said to have been an isolated incident in which the applicant says he had issues with the management style of his superiors.  These are the things he should have told the chairperson of the disciplinary hearing and he chose not to do so.  It is clear from his email that the applicant was not happy with some of his senior colleagues.  However, it surely cannot be that a person of his seniority does not follow prescribed grievance procedures. 

[16]   Finally, the applicant says his offences amounted to nothing more than time keeping offences and his employer did not suffer any financial loss as a result of his conduct and in fact he, the applicant did assist a customer on one of the days in which he was absent.  Therefore, his absence should not be regarded as a desertion, absconding or gross.  The applicant contends that the arbitrator failed to have regard to the mitigating factors.  In essence, the applicant contends that the sanction meted out to him was too harsh for the conduct with which he was charged.

The analysis.

[17]   The applicant’s contentions are not based on anything that could be said to be a misconduct or defect on the part of the arbitrator both in respect of the finding of guilt and in respect of the sanction.  The applicant himself admitted conducting himself in a manner that made him guilty.  He, however, failed to give a proper explanation for his behaviour to the arbitrator.  For instance, there is still no proper account by the applicant of what it is that forced him to take his leave and absent himself from work at a time when, to his knowledge, he was the only employee available as his junior colleagues had all resigned with immediate effect.  Not only was this not explained during the proceedings before the commissioner but also even in his affidavits in these proceedings, he has still not properly explained his absence and behaviour.  Not only was the applicant the only employee at that branch, but also he was the most senior employee at that branch at that time, the branch manager.  All of the applicant’s behavior considered cumulatively, in my view, was gross misconduct.  The fact that in describing the misconduct complained of the word “gross” was not used did not make the misconduct any less serious if all the evidence is taken into account.

[18]   Secondly, in addition to his defiant refusal to communicate with his immediate supervisor coupled with his failure to respond positively to persistent requests for a meeting to resolve whatever issues the applicant had with his employer, his was a behaviour of an employee who was not seeking to resolve whatever grievances he had but he was just being rebellious.  In behaving in this manner, he was not only behaving rebelliously but also in total disregard of his employer’s interests and those of the customers of the employer and as such, his employer’s business.  For instance, in one of the email correspondence he wrote on 31 August 2020 at 09:11 that morning, the applicant escalated the situation.  That email is addressed to Mr Barnard and another person, Mr Botha and a third person, Ms Luitha Jansen van Rensburg is copied in that email.  The applicant expresses himself as follows:

“Good morning

The last conversation Frans had with me resulted in me ending up getting sick and I don’t feel like getting seek again.  That is why I was trying to avoid everything that is happening to me here at Autozone and just carry on doing my job to the best of my ability.

I have a vocal issue and sometimes people don’t understand what I am trying to say – I would appreciate it if you rather contact me via email.  CJ may contact me if there is any response from you then I’ll reply.  Please respect my wishes.

Please ask Frans to stop assuming things – assumption is the mother of all mistakes.

Hitler was not a good leader but he had a way to say certain things that people wanted to hear.

Thank you.”

[19]   This email was written in the middle of a huge crisis in that three of the four people who worked at that branch had resigned with immediate effect a few days earlier.  The applicant had been refusing to take phone calls from Mr Barnard and was not responding to messages or even requests for a meeting.  In addition to all of this the applicant aggravated the situation by deserting the workplace taking unauthorized leave when he had been told that he needed to be at work to assist in dealing with the situation. Instead of going to work so as to try and manage the crisis with his colleagues, Mr September, Mr Botha as well as their supervisor Mr Barnard at work, he goes to work to do a handover.  He also wrote this strange email which in essence emphasized his refusal to communicate or hold meetings with his colleagues when circumstances required him to do so.  Whatever his personal issues were about which he failed to elaborate, he should have put them aside and assisted in managing the crisis at his branch as the main priority and also discuss his request for leave and even explain why he needed to take it even in the middle of a crisis.  It seems to me that the applicant was using the crisis created by the resignations of his junior colleague about which he did not say much to raise his own grievances and in that way trying to force the hand of his employer to address his own issues.  This explains why he did not follow proper grievance procedure.

[20]   The arbitrator, in part, made the following analysis and conclusions regarding the evidence:

“18. The employee argued that in terms of the employer’s own Disciplinary Code disciplinary action short of dismissal is prescribed in that he was only absent from work for one day.  What the employee must understand is that he was employed as a manager of the Kirkwood store and it is not unfair to hold the managers to a higher standard of discipline as expected from their subordinates. It is however unfortunate that the employee is his own worst enemy in that had he responded and contacted Mr Barnard the discord that the employee believes existed between him and Mr Barnard could have been addressed and resolved but to refuse to speak to your immediate supervisor and tell your immediate supervisor that he would only communicate with him through another person is unacceptable.  Also the tone in his emails was challenging and disrespectful, aggravating the misconduct.  This enhances the notion that the trust relationship had broken down irrevocably.  At the employee’s own disciplinary hearing he did not testify in his defense and he ultimately sunk his own ship.

19.  I find the sanction of dismissal under the circumstances to be appropriate.  The employee has shown no remorse, dismissal as a sanction would be fair.”

[21]   Just on the last issue of remorse that the arbitrator alluded to, it is indeed so that nowhere in any of his affidavits is there as much as a whiff of an indication of somebody who wants to change or is regretful about the manner in which he conducted himself.  Similarly with his evidence before the arbitrator, his bellicose if not rude and disrespectful written communication to his supervisor and colleagues is not cogently dealt with by way of a proper explanation.  It certainly is not enough for him to say that his behavour on this occasion was an isolated incident.  Even if it was, one would have expected that at some point from the 3^rd September 2020; during the disciplinary hearing; during the arbitration proceedings and indeed when he and his attorneys were working on this review application, it would have occurred to him that his behavior was not only out of kilter with good working relations but he would have known that it could lead to his dismissal.

[22]   That reflection and possible realization that he needed to explain himself thoroughly and at length and to apologize on any of the above mentioned opportunities would have resulted in him being deliberate in making his own efforts at rebuilding and trying to normalize the relations if he wanted to.  Whether or not he would have succeeded is something else but at the very least it would have suggested that he did not act with malicious intent.  That could possibly have created some room for a consideration by his employer of what he now asks for, progressive discipline.  The conduct of an employee in determining an appropriate sanction matters.  The fact that progressive discipline is provided for in the regulatory framework for a particular infraction will not always mean that it is an appropriate sanction in all cases.  The manner and the circumstances in which that infraction was committed is a very relevant consideration in the determination of the sanction.

Some comments about the applicant’s formulation of the grounds of review.

[23]   The manner in which the grounds of review in this matter have been formulated leaves much to be desired.  For instance, despite the numerous concessions made by the applicant regarding the charges laid against him he still challenges the findings of the arbitrator on whether or not he had committed the misconduct charges he faced.  This is despite his own version about the three charges basically corroborating the evidence of the third respondent.  One would have thought that he would have instituted the review proceedings challenging the sanction and raising little or no issue about having committed the misconduct concerned.  Instead, he complains in his papers about not having been given an opportunity to call some or other witness.  He complains about what he calls gross misrepresentation of facts and the improper approach adopted in determining the finding of guilt.  He raises issues of credibility which he says led to the arbitrator ultimately failing to arrive at any finding supported with reasons based on the evidence. 

[24]   He goes on to raise an issue about the arbitrator arriving at a conclusion which he says clearly falls outside the ambit of reasonableness and adopting a subjective, arm chair critic approach containing mere assumptions entirely disconnected from the evidence.  I fail to understand how any of these issues are raised in circumstances in which his own evidence objectively considered establishes that he did in fact commit the misconduct complained of.  This is besides the overwhelming evidence of the employer’s witnesses succinctly summerised in the award which clearly established the misconduct.  How the applicant complains about misinterpretation of facts and a wrong approach having been adopted in determining his guilt is difficult to understand.

The test for review.

[25]   In Nation Union of Metal Workers of South Africa[2] Prinsloo J, albeit dealing with a different factual matrix and charges, had this to say:

“[8] In their founding and supplementary affidavit, the applicants raised several issues in respect of the arbitration award.  It is unfortunate that the applicants adopted a scattered approach in formulating their grounds of review as if they were hoping that at least one of their salvos would succeed in striking its intended target, namely the review and setting aside of the arbitration award.  The issues raised were more-criticism than grounds of review.  Such an approach is not only unacceptable but also displays a lack of understanding of the clear divide between an appeal and a review.  Applicants in review applications should not randomly take issue with every finding of the arbitrator but should consider the test applicable and formulate grounds for review that are proper, focused and aligned with the applicable test.”

[26]   What Prinsloo J was faced with in the above case is an apt example of how this matter has been handled.  On the one hand the applicant seems to have an issue with the fact that he has in fact been found guilty and on that basis he contends that the arbitrator should have found that his dismissal was substantively unfair.  In doing this he fails to distinguish the issue relating to whether or not he committed the misconduct complained of to the issue of whether the sanction so imposed was in fact appropriate.  To try and contextualize the point I am making, I deal below with the test for review which is central in this matter as it is in any review application in terms of section 145 of the LRA.

[27]   It has long been held that the test for review is whether the decision reached by the arbitrator is one that a reasonable decision maker faced with the same factual matrix could make[3].  While the standard or test for review is the same, each case must be determined entirely on its own factual matrix so that whether or not the conclusion is or is not that the decision of the arbitrator was aligned with the evidence is not a predetermined outcome or one made in the abstract.  It is based, as it must, on a closer scrutiny of the material that was before the arbitrator when he made the decision that he did.

[28]   In Makuleni[4] the court explained the test for review with reference to previous cases.  In that matter the Labour Appeal Court, after articulating the legal position at length went on to say:

“The impact of these remarks demands reflections in order to digest the essence of the exercise that a commissioner embarks upon.  The court asked to review a decision of the commissioner must not yield to the seductive power of a lucid argument that the result could be different.  The luxury of indulging in that temptation is reserved for the court of appeal.  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 the conclusion is untenable is a review and setting aside warranted.”

[29]   The Labour Appeal Court, per Sutherland JA, before expressing itself as it did above, it explained the test for review in some detail with reference to previous cases as follows:

“The critical approach to reviews that turn on ‘unreasonableness’ was articulated by Murphy AJA in Head of Department of Education v Mofokeng & Others …. :

‘[30] The failure by an arbitrator to apply his mind to issues which are material to the determination of a case will usually be an irregularity.  However, the Supreme Court of Appeal (the SCA) in Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curia) and this court in Gold Fields Mining SA (Pty) (Kloof Gold Mine) v Commissioner for Conciliation, Mediation & Arbitration & Others have 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 an unreasonable outcome.

[31] The determination of whether a decision is unreasonable in its result is an exercise inherently dependent on variable considerations and circumstantial factors.  A finding of unreasonableness usually implies that some other ground is present either latently or comprising manifest unlawfulness.  Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of interrelated questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds developed casuistically at common law now codified and mostly specified in s 6 of the Promotion of Administrative Justice Act (PAJA); such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously, etc.  The court must nonetheless still consider whether apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in the light of the issues and the evidence.  Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny.  As the SCA held in Herholdt, the arbitrator must not conceive the enquiry or undertake the enquiry in a misconceived manner.  There must be a fair trial of the issues.

[32] However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted s 145 of the LRA, confining review to defects’ as defined in s 145 (2) being misconduct, gross irregularity, exceeding powers and improperly obtaining the award.  Review is not permissible on the same grounds that apply under PAJA.  Mere errors of fact or law may not be enough to vitiate the award.  Something more is required.  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.  Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in misconceived enquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her.

[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry.  In the final analysis, it will depend on the materiality of the error or irregularity and its relations to the result.  Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator’s conception of the enquiry, the delimitation of the issues to be determined and the ultimate outcome.  If but for an error or irregularity a different outcome would have resulted, it will ex hypothesis be material to the determination of the general nature of the decision to an issue, the range of relevant factors informing the decision, the nature of the competing interests impacted upon by the decision, and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA.  Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable.  By the same taken, an irregularity or error material to fine determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone.  The arbitrator however must be shown to have digressed from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.’”

Conclusion.

[30]   I have carefully considered the record of the proceedings before the arbitrator and the applicant’s well written submissions and indeed the oral submissions in court during the hearing of this matter.  I must commend the applicant’s legal representative for the thorough research undertaken to deal with this matter.  Having considered all the authorities cited against the fact that ultimately the question to be asked is whether there is sufficient nexus between the material that was before the arbitrator and the conclusion that the arbitrator reached.  The final decision of the arbitrator in this matter was that the sanction of dismissal in the circumstances was appropriate and he thereupon made an award that the applicant’s dismissal was substantively fair.  I cannot fault the arbitrator’s award in this matter in light of the review test articulated in some detail in Makuleni.  Therefore, the application for the review and setting aside of the arbitrator’s award must fail. 

The costs.

[31]   The last issue that I must deal with is that of costs.  In the written submissions made on behalf of the third respondent, it is submitted that if this Court finds in favour of the third respondent with the review application being dismissed, the court should make an order for costs against the applicant.  Alternatively, the applicant should be ordered to pay costs from the date on which the third respondent made a settlement proposal details of which were correctly not disclosed to the court.  I disagree.  The applicant lost his job even though that was entirely of his own making.  I do not think that there would be any fairness in mulcting the applicant with an order for costs for the reasons that follow hereinbelow. 

[32]   I agree that the applicant could have behaved much better in dealing with whatever issues he had at his workplace and even taken the opportunities of being invited for discussions to hear him.  He did not do so.  During the disciplinary hearing he decided not to give his explanation for what transpired even during that process by not testifying.  Before the Bargaining Council the applicant made no effort at making amends even as he was, on his own version, essentially conceding that he had not conducted himself as would be expected especially of a person in the position that he held, the manager of the third respondent’s Kirkwood branch.  This, in circumstances in which all his three colleagues who reported to him had resigned with immediate effect.  He escalated this situation by inexplicably refusing to delay the onset of his leave or discussing the matter with his management. 

[33]   Even when he was instructed to report for work so as to assist in dealing with the crisis that was there at his work place with his leave being refused, he decided to leave anyway leaving others to deal with the crisis at his own branch. His behavior included tempestuous written communication to his superiors and thus made any notion of a possibility that his relations with his employers could be mended well-nigh impossible.  Add to this the fact that not only has he not properly explained his behavour, he has not, at any stage throughout, made even a feeble attempt at showing remorse and making amends with some cogent explanation about what he might have been going through in his personal life if he was not just being rebellious.

[34]   Even considering all that against the backdrop that it could be argued that he had largely hitherto been a good employee, I do not consider it fair to have him pay the costs of the third respondent which was in any event, represented by an employer’s organization official.

[35]   In the result the following order shall issue:

Order:

1. The application for the review and setting aside of the second respondent’s arbitration award is dismissed.

2. There shall be no order as to costs.

M. Jolwana

  Acting Judge of the Labour Court of South Africa

Appearance:

For the Applicant   :  

Mrs. Van Staden of the Legal Aid South Africa

GQEBERHA

 

For the Third Respondent  :  

Mr. K Hayward

Instructed by :  

NEASA PRETORIA

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