Akhalwayas Spice Products v Commission For Conciliation Mediation and Arbitration and Others (JR 15/2021) [2022] ZALCJHB 121 (19 May 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 15/2021

In the matter between:

AKHALWAYAS SPICE PRODUCTS

APPLICANT

and

COMMISION FOR CONCILIATION

MEDIATION AND ARBITRATION

FIRST RESPONDENT

COMMISSIONER MOTLATSI PHALA

SECOND RESPONDENT

TERRANCE MLUNGISI NGOBE

THIRD RESPONDENT

LEBOHANG NTSEO

FOURTH RESPONDENT

Heard: 17 May 2022

Delivered: 19 May 2022

(In view of the measures implemented as a result of the Covid 19 pandemic, this judgement was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed to be 19 May 2022.)

JUDGMENT

VAN NIEKERK, J

[1] This is an unopposed application to review and set aside an arbitration award issued by the second respondent (the commissioner). There is no formal notice of intention to oppose the review application, nor did any of the respondents file an answering affidavit. During the course of October 2021, the third respondent filed what is titled a notice of deemed withdrawal: “in terms of paragraph 11.2 of the Practice Manual of the Labour Court”. In this notice, the third respondent avers that the review application is deemed withdrawn in terms of the paragraph of the Practice Manual to which he refers, on account of a failure by the applicant to serve the record of proceedings within 60 days of receipt of the notice in terms of rule 7A (3). The applicant has filed a supplementary affidavit explaining the circumstances in which an incomplete record was provided and the efforts made to obtain a complete record of the proceedings under review. The record was filed within 60 days of the date on which the full record was made available to the applicant and in these circumstances, the applicant has complied with the Practice Manual insofar as it relates to the filing of records.

[2] In his award, the commissioner found that the third and fourth respondents had been unfairly dismissed on the basis, it would appear, that they had not committed the misconduct alleged and further, that dismissal was not the appropriate sanction. An award of compensation was made in favour of the third and fourth respondents.

[3] The applicant seeks to review and set aside the commissioner’s award on the basis that first, the commissioner committed a gross irregularity in that he misconstrued the evidence placed before him and arrived at a decision to which a reasonable decision-maker could not have come on the available evidence. Secondly, the applicant submits that the commissioner committed a gross irregularity when he reached certain factual conclusions not supported by the evidence before him.

[4] A reading of the record discloses that the third and fourth respondents (and other employees) were granted permission to consult with their legal adviser on the morning of 25 February 2020. They were sent a message at 12h15 that they were required to return to the workplace. It is not disputed that this message was received, nor was it disputed that the employees returned to the workplace at around 12:45 when they were seen changing into their clothes to leave. The employees were individually informed that they may not leave the workplace and that should they do so, disciplinary action would be taken. Despite this, the employees left anyway in circumstances where orders were required to be prepared for dispatch. An enquiry was held on a sanction of dismissal was recommended. The employees were afforded an opportunity to appeal; the fourth respondent did not appeal and in the case of the third respondent, on account of a final written warning, his appeal was rejected.

[5] In the face of this undisputed evidence, the commissioner’s finding, to the extent that he finds as a fact that the employees had not abandoned the workplace, is simply not sustainable. To the extent that the commissioner found that dismissal was not an appropriate sanction, the commissioner overlooked the undisputed evidence that the chairperson of the enquiry considered that the charges raised against employees were serious, that the employees had blatantly acted with disrespect to the point of insolence, and that the third respondent had on record a final written warning issued some seven days prior to the incident in question.

[6] On a perusal of the record, I am satisfied that the commissioner reached conclusions which were unreasonable having regard to the evidence placed before him. It follows that his award stands to be reviewed and set aside.

[7] The applicant seeks the remedy of substitution. the court is in as good a position as any arbitrator to make a determination. The record is complete and all of the relevant facts are before the court. Little purpose would be served in remitting the matter for rehearing. The record discloses that the respondents committed acts of serious misconduct warranting their dismissal.

I make the following order:

1. The arbitration award issued by the second respondent under case number GHA the 5767 – 20 dated 29 November 2020 is reviewed and set aside.

2. The award is substituted by the following:

“The dismissal of the applicants was substantively and procedurally fair.”

______________________________

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: M Dollie

Instructed by Mahmood Mia Attoney