Eskom Holdings SOC Limited v Reddy and Others (D368/2021) [2022] ZALCD 21 (6 June 2022)

IN THE LABOUR COURT OF SOUTH AFRICA DURBAN

Case no:D368/2021

Not Reportable

In the matter between:

ESKOM HOLDINGS SOC LIMITED

Applicant

and

RAVICHANDRAN REDDY

First Respondent

BESS PILLEMER

Second Respondent

COMMISSION FOR CONCtLIAITON, MEDIATION

AND ARBITRATION

Third Respondent

Heard: 17 March 2022

Delivered: 6 June·2022

JUDGMENT

ALLEN-YAMAN AJ

Introduction

[1] The applicant seeks to review and set aside the arbitration award issued by the second respondent under KNDB4986-17 ('the Award') in terms of which she found that the dismissal of the first respondent had been substantively unfair. He was awarded reinstatement retrospective to 23 March 2017.

[2] The first respondent has opposed the application.

Background

[3] The first respondent had been employed by the applicant sinice 2 May 1996. At the date of his dismissal he occupied the position of a Zone Manager in the applicant's Operating and Maintenance Department in KwaZulu-Natal.

[4] It was common cause between the parties that the first respondent received a car allowance as a participa.nt in a managerial car scheme in terms of the applicant's Car Schemes Procedure[1], which entailed ,inter alia, that he utilised his own vehicle for trips undertaken for the purposes of work. IIf he undertook such a work related trip· he was entitled to claim what was termed a 'contingency allowance' from the applicant. This contingency was, in effect. A reimbursement allowance paid to the first respondent per kilometre travelled by him in his own vehicle, together with any other costs associated with such travel, for business purposes.

[5] It was the applicant's case that the first respondent was contemporaneously precluded from ever travelling in what was referred to as a 'pool vehicle', being a vehicle owned by the applicant and which certain, specified individuals were authorised to drive.

[6] During the course of 2016 it was suggested that the first respondent had contravened the rules of the Car Scheme Procedure relating to the use of the pool vehicle. It was alleged that he had claimed contingency allowances for kilometres travelled in his own vehicle in circumstances in which he had travelled to the destinations in question by means of a pool vehicle then being driven by other employees.

[7] An investigation was undertaken by Mr Ajith Hansrajh, who was employed as an investigator within the applicant's security division. Pursuant to having interviewed a number of individuals and having considered certain documentation, Mr Hansrajh concluded that the first respondent had contravened the applicant's Car Schemes Procedure by having travelled in a pool vehicle and further that the first respondent had _submitted six fraudulent contingency claims which had been paid by the applicant.

[8] The first respondent was called to attend a disciplinary enquiry as a result of the aforesaid findings, to answer the following charges:

'2.1 Contravenes or fails to comply with Eskom's Conditions of Service, agreements with trade unions, operating regulations, security and I or safety measures, procedures, directives and applicable statutory requirements, in that: During the period 09.03.2016 to 11.10.2016 you contravened the Eskom Car Scheme Procedure 32-1108, section 3.5.8 by using the pool vehicle for travelling on Eskom business.

3.5.8 states "Employees who receive a car allowance in terms of this procedure may not use Eskom subsidised transport for travel from home to work and home again, or a pool vehicle, or a rented car, for travelling on Eskom business, except for the circumstances set out in paragraphs 3.4.4 ("Unavailability of vehicle").

2.3.1 Falsifies any documents, claim forms or records that relate to his/her duties. In that you unjustifiably claimed contingency allowances for business kilometres travelled for the following trips:

Date Reason/Location Day Destination Claimed

09.03.2016 Pongola Ras Audit Pongola

2337.30

12.04.2016 Zone Meeting Richards Bay section office 1119.36

13.04.2016 Take Over Meeting Umkanyagude mukze 1672.68

29.06.2016 Zone SHEQS/ENS Richards Sect Off 1119.36

19.07.2016 LV Rst Work shop Eshowe CNC 947.64

11.10.2016 Zone Meeting Rich Bay Sec Offi 1119.36

8315.70

for financial gain, whereas you had undertaken these trips as a passenger in a pool vehicle and you were therefore not entitled to claim.'[2]

[9] The first respondent pleaded not guilty at the disciplinary enquiry to having committed the misconduct as alleged. In respect of the first charge he relied on an exchange of emails between himself and Mr Frederick van Niekerk, the applicant's Human Resources Zone Manager for KwaZulu-Natal, by which he understood that he was permitted to travel as a 'passenger in a pool vehicle but was not permitted to utilise the pool vehicle himself. In respect of the second charge, he made allowance for the possibility that he may have made mistakes in his claim forms He contended, however, that if he had made any impermissible claims, he would have done so unintentionally because of certain iissues relating to his personal life which had caused him stress at the time when the- claim$ were made.

[10] The chairperson of the disciplinary hearing found the first respondent guilty of the misconduct in question. From the minute of the finding, it appears that he requested that the applicant and first respondent to provide him with submissions regarding aggravation and mitigation respectively[3].

[11] The chairperson ultimately concluded that the appropriate sanction for the infractions in question was dismissal and the first respondent was duly dismissed on 23 March 2017.

[12] Having been dismissed, the first respondent referred a dispute to the third respondent in which he challenged the substantive fairness of his dismissal. It was this dispute which ultimately served before the second respondent almost three years later. In the intervening period the first respondent had obtained an award in his favour in default of appearance of the applicant. The applicant applied for the rescission thereof. The rescission application was refused, and the applicant approached this court under D891/2018 to review the decision to refuse rescission. On 17 September 2019 the first respondent consented to the rescission ruling being reviewed and set aside, and the dispute being remitted to the third respondent to be arbitrated de novo.

[13] The dispute was thereafter enrolled for arbitration before the second respondent, who issued the Award which is the subject matter of the present review application.

[14] In the course of that arbitration, the applicant’s case remained that the first respondent had been guilty of the misconduct in question. The first respondent, for his part, testified that he had by then had the opportunity of considering the dates of travel alleged to have been undertaken in a pool vehicle in respect ·of which ·he had submitted contingency claims, and positively denied that hle haddone so.

[15] The first respondent agreed that if he was to be found guilty of the infraction of having claimed a contingency in circumstances in which he was found to have travelled in a ·pool vehicle the sanction of dismissal would be the appropriate sanction

[16] The only issue for determination by the second respondent was accordingly whether the applicant had discharged its onus of establishing, on a balance of probabilities, that the first respondent had committed the infractions alleged. She found that it had not and issued the Award with which the present review application is concerned.

Grounds of Review

[17] In general terms, the applicant contends that the second respondent committed various irregularities pertaining to the evidence before her, material to the determination of the dispute and which caused her to reach a decision which no reasonable decision maker could have reached. Moreover, the applicant contends further that the second respondent 'erred' in respect of the merits, which caused her to reach an incorrect decision.

[18] The specific grounds of review articulated by the appl cant in its founding affidavit may be summarised as follows:

1. The failure on the part of the second respondent to have considered the evidence of Mr Sandile Ndlovu;

2. The preference given by the second respondent to the evidence contained in the telematics report over that of Mr Ndlovu; and

3. The acceptance of the first respondent's denial that he had travelled with either Mr Ndlovu or Mr Andre Fredericks on the six days in question, in circumstances in which he had admitted that he had regularly done so.

[19] These grounds of review, in effect, amount to an assertion on the part of the applicant that; in consideration of the evidence before her, the second respondent ought to have preferred the applicant's version over the version of the first respondent.

[20] In its supplementary affidavit, the applicant articulated a further ground of review in relation to the second respondent's assessment of the evidence in relation to the first charge. The applicant contends that second respondent's acceptance of the first respondent's reliance on permission given to him to travel in a pool vehicle was misplaced, due to the fact that such purported permission was given some months after the alleged misconduct in question and was therefore an irrelevant consideration.

[21] Additionally in its supplementary affidavit, the applicant seeks to challenge the findings of the second respondent in terms of which she acquitted the first respondent of wrongdoing in relation to his having claimed contingencies on the specific dates of 29 June 2016, 19 July 2016, and 11 October 2016.

[22] In conclusion, the applicant contends that the second respondent committed misconduct in relation to her duties as an arbitrator, committed a gross irregularity in the conduct of proceedings, and I or exceeded her powers and thereby reached a decision which no other reasonable decision maker could have arrived at with the same probative material before him or her.

[23] In opposition to the applicant's review application, the first respondent disputes that the Award is reviewable on any basis at all.

Analysis

[24] The second respondent, having set out the charges against the first respondent, correctly identified the issues which she was required to decide,

'The issues to be decided therefore were whether the Applicant is entitled to travel in. the pool vehicle and secondly if he was entitled to do so, whether he committed misconduct when he Submitted claims for use of his private vehicle for six days on which 1t is alleged that he travelled in the Eskom pool motor vehicle. It is common cause that the Applicant submitted contingency claims for his private vehicle for the six days in question but he disputes that he travelled in the pool vehicle on those six days. [4]

[25] In respect of the first of the charges, the first respondent was alleged to have contravened clause 3.5.8 of the applicant's Car Scheme Procedure which reads as follows,

'Employees who receive a car allowance in terms of this procedure may not use Eskom subsidised transport for travel from home to work and home again, or a pool vehicle, or a rented car, for travelling on Eskom business, except for the circumstances set out in paragraph 3.4.4 (‘Unavailability of vehicle').'

[26] It is the applicant's contention that the second respondent's finding that the first respondent was to be acquitted of any wrongdoing in respect of this charge was misplaced. It asserts that no reliance should have been placed on the email relied upon by the first respondent which purported to have given him permission to travel in the pool vehicle, as that the email had been transmitted to him in 2017, whereas the infractions complained of had been alleged to have taken place in the preceding year.

[27] In consideration of the second respondent's finding in respect of the first charge, it is evident that the applicant grounds of review in relation thereto have no merit. The second respondent's reasoning for acquitting the first respondent of the first charge was set out in the Award,

'The fact that the Applicant was even charged with the first charge is puzzling. It is correct that a rule exists which can be read as prohibiting the use of a pool vehicle if an employee has his own, but it emerged clearly and unequivocally at the arbitration that is not the way in which the rule was applied. The practice that applies is that one may travel in a pool vehicle, and this is actually encouraged, provided obviously that the employee cannot falsely claim to have used his own vehicle if he does so. It follows that the Applicant is not guilty of the first count which is simply that he on occasion used a pool vehicle for transport. The evidence of both Applicant and the Respondent's witnesses established that he was entitled to travel in the pool vehicle, but if he did, he could not claim a contingency for his private motor vehicle for those trips. '[5]

[28] As may be seen, the second respondent found as she did on the basis of the evidence of the witnesses who testified at the arbitration and not on the basis of the email referred to. Moreover, the second respondent's assessment of the evidence of the three witnesses who testified in relation to the first charge on behalf of the applicant was an accurate assessment of their testimony.

[29] Mr Hansrajh testified under cross-examination to the effect that it was permissible for an employee who was the beneficiary of a vehicle allowance to travel in a pool vehicle with another employee who was attending the same meeting, but the employee in question would not be permitted to claim a contingency.[6]

{30] Mr van Niekerk, the author of the email upon which the first respondent relied, testified that it was permissible for the first respondent to have travelled with a driver of a pool vehicle going to the same destination as long as he did not claim a contingency for that day's travel.[7]

[31] Mr Jorge Correia's Evidence was,

'In terms of this procedure. the answer is no, we didn't get - he didn't request a pool vehicle but he’s still entitled to travel in a pool vehicle if ... [indistinct] the business. So he wouldn't have been able to be in control of the pool vehicle but he would be able to travel in the pool vehicle.'[8]

[32] The second respondent's assessment of the evidence was not only one which was reasonable, it was also correct. The applicant's grounds of review in relation to the first charge are not sustainable.

[33] To determine the second of the charges, the second respondent was required to accept one of the two mutually irreconcilable and contradictory versions with which she had been confronted. On the one hand Mr Ndlovu and Mr Fredericks had testified on behalf of the applicant that the first respondent had travelled with them in the pool vehicle which had been allocated to each of them on the days on which he had claimed contingency allowances. The first respondent, on the other hand, whilst admitting that he had travelled in a pool vehicle on some 80 other occasions, denied that he had done so on the specific dates in respect of which the applicant alleged that he had also claimed contingency allowances.

[34] The second respondent found that the probabilities favoured the first respondent's version. This she did on her acceptance that a telematics report[9] contained in the applicant's bundle of documetary exhibits constituted 'the most reliable evidence' of the trips undertaken by Mr Ndlovu in the pool vehicle on the dates in question.

[35] That the Award is premised upon the second respondent's acceptance of the telematics report as having constituted proof of the locality of Mr Ndlovu's vehicle on the relevant dates is demonstrated by the following excerpt therefrom,

'Considerable tnne has passed since the motor car trips in issue. Not surprisingly the witnesses did not have independent recollections of the trips, but fortunately there is a telematics report for the vehicle in question which is not disputed and the trips and inferences to be drawn from the addresses of the stops constitute the most reliable evidence [10]'

[36] Insofar as each of the specific infractions relating to the contingency claims is concerned, the second respondent's reliance on the telematics report is apparent,

'9 March 2016

The evidence established that Applicant's mother lived at Kannagamah Road and that at the material time he was living at her address. The telematics report showed that Ndlovu stopped at the N2 Kruisfontein in the morning, and at the Caltex Garage, a kilometer from Kannagamah Road in the afternoon. Neither of the stops were where Applicant was ordinarily collected in the morning or dropped off in the evening. Itis improbable that Applicant travelled with Ndlovu in the pool vehicle on that day because if he did the telematics report makes no sense and a much more detailed explanation would be required from the Respondent to deal with the patent anomalies in the report. Some evidence had to be led to show why stops at place that have no connection with the Applicant amount to evidence that he travelled in the vehicle on that day. ...

12 April 2016

The telematics reporl shows that Ndlovu did not travel to Tongaat on this day. ...

13 April 2016

The telematics report shows that Ndfovu's vehicle was in the vicinity of Kannagamah Road in the morning, but the vehicle did not return to that address in the afternoon. The afternoon stop that. Ndfovu made in Tongaat is a ten-minute stop at Nando's which is situated at 364 Gopalal/ Hurban Road. ...

29 June 2016

The teiematics 1eport showed that Ndlovu stopped near Kannagamah Road in the mommg but did not return in the evening.

19July 2016

Ndlovu claimed that he gave Applicant a lift on this day but the telematics report shows the contrary. According to the report Ndlovu did not stop in Tongaat in the morning so there is nothing to show that he picked the Applicant up that morning. The telematics show that Ndlovu in the afternoon stopped at Metcalfe Road, Tongaat a kilometer from Kannagamah Road. I agree with the Applicant that the report does not establish that the trip had anything at all to do with him. ...

11 October 2016

The telematics report established that Ndlovu did travel to Kannagamah Road in the morning, but not in the afternoon. It shows that Ndlovu did not return to Tongaat in the afternoon, and he does not explain how Applicant would have returned to Kannagamah Road.[11] ...'

[37] The telematics report contained data which was represented in a data message. Both such concepts are defined in section 1 of the Electronic Communications and Transactions Act, 2002 ('the ECT Act'),

"'data" means electronic representations of information in any form

"data message" means data generated, sent, received or stored by electronic means and includes -

(a) voice, where the voice is used in an automated transaction,' and

(b) a stored record.'

[38] The treatment of data contained iin data messages is governed by section 15 of the ECT Act, which provides as follows,

'(1) In any legal proceedings, the rules of evidence must not be applied so as to deny the admissibility of a data message, in evidence -

(a) on the mere grounds that it is constituted by a data message; or

(b) if it is the bets evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.'

[39] In terms of sect on 15(1) of the ECT Act the data message as contained in the telematics report was admissible subject, however, to proof thereof.

[40] The second respondent regarded the telematics report as having been documentary evidence, and regarded its contents as not being disputed.[12] These conclusions could not reasonably have been arrived at by a commissioner considering the evidentiary material which was before the second respondent.

[41] At the outset of the proceedings, in the absence of the parties themselves having conducted a pre-arbitration conference, the second respondent asked the parties a number of questions, including a question pertaining to the status of the documents,

'... All right, documents were handed in yesterday. I have a Bundle A that was handed in by the applicant and a Bundle B by the respondent. The status of the documents, any discussion on the status of the documents? I see A is just a record of the disciplinary hearing. ,[13]

[42] In response to her enquiry the first respondent's representative indicated the first respondent's agreement as to the status of the docurnents was limited in extent,

'On behalf of the applicant, we don't mmd that the documents are what they purport to be however we reserve the right - both parties reserve the right to require witnesses ... [indistinct].[14] '

[43] As such, the agreement reached at the outset of the proceedings was only that the documents were what they purported to be, without any admission as to the truth of the contents thereof. In other words, the agreement so reached obviated the need on the part of the parties to prove the documents, but such agreement did not equate to having obviated the parties' need to prove that any statement of fact contained within those documents was true. This is because of the distinction between the mere production of a document as proof of the content thereof and the use of such a document for the purpose of proving the truth of its contents.

[44] Moreover, despite the fact that the telematics report was in the form of a printed document it did not in fact constitute 'documentary' evidence. Evidence of the type contained in the telematics report is regarded as 'real' evidence rather than 'documentary' evidence.

{45] In light of the anecdotal remarks made during the course of the arbitration pertaining to the telematics report, it may be understood to have been a report of data generated entirely from the workings of computer technology; a print­ out of the data created by some type of GPS enabled tracking system attached to the pool vehicle utilised by Mr Ndlovu at the material times. I describe the system in these terms because no witness for either the applicant or the first respondent testified at the arbitration as to the meaning of and conclusions to be drawn from the data contained in the telematic report, or any other aspect thereof

[46] As was stated by Van Zyl J in S v Ndiki (2007) 2 All SA 185 (Ck),

'If a computer print-out contains a statement of which a person has personal knowledge and which is stored in the computer's memory, its use in evidence depends on the credibility of an identifiable·person and would therefore constitute hearsay. On the other hand, where the probative value of the statement in the print­ out is dependent upon the credibility" of the computer itself, section 3 will not apply.[15]

And further, that,

'..., computer evidence which falls within the definition of hearsay evidence in section

3 may become admissible in terms of the provisions of [the Law of Evidence Amendment Act 45 of 1988]. Evidence on the other hand that depends solely upon the reliability and accuracy of the computer itself, its operating systems or programs, constitutes real evidence.[16]

[47] Although stated before the enactment of the ECT Act, and with reference to other forms of real evidence not being data messages, the principle stated in S v Baleka and Others 1986 (4) SA 1005 (T) remains true in regard to all types of real evidence,

'The case of R v W establishes that photographs and films must be identified as true representations of the objects and persons which they purport to represent before they can be said to be real evidence. Objects do not prove themselves any more than documents do.'[17]

[48] Whilst section 15 (4) of the ECT Act makes provision for data messages created in the ordinary course of business which have been certified as having been correct by an officer in the service of such ·a business to constitute rebuttable proof of the facts contained in such record, there is no equivalent provision for data messages made otherwise than in the ordinary course of business. As may be inferred by the words, "the person adducing it" in section 15(1) (b) of the ECT Act, all other types of data messages are required to be proven in the same way as any other type of evidence: by way of agreement between the parties. failing which, the oral evidence of a witness.

[49] If the data message had indeed been documentary evidence, there had been no agreement as to the truth of the contents of thereof. As potentially either documentary evidence or real evidence, it could not simply have proved itself. In either scenario more was required: a witness who was able testify as to the meaning·of the data contained in the data message, that the data contained in the data message had been reliably generated, stored, communicated and maintained was .required to have given evidence before the data contained in the data message could have been regarded as having constituted proof of the truth of its contents . No such witness was called to testify.

[50] The applicant's attempts to lead Mr Correia's evidence concerning the telematics report, whatever such evidence may have been intended to be, was objected to by the first respondent's representative on the basis that Mr Correia had not been qualified in the arbitration proceedings as an expert.[18]

[51] Mr Ndlovu could shed no light on the question of why the data contained in the telematics report appeared to demonstrate that his vehicle had been at localities within Tongaat other than at the first respondent's house, because he simply did not know.

[52] Equally, the first respondent's assessment of the meaning of the data contained within the telematics report was of no value as he, like Mr Correia, had no knowledge whatsoever concerning the systems which generated the data message, let alone what reliance, if any, could be placed on the data contained therein.

[53] Without such a witness having testified there was no basis upon which the second respondent could have accepted that the data contained in the data message had any evidentiary value, let alone found that the data contained therein was the most reliable evidence

[54] The second respondent had been required to decide between the two versions before her: the applicant's version, through its witnesses, that the first respondent had travelled in a pool vehicle on several occasions but had nonetheless claimed for and been paid a contingency in circumstances in which he had claimed to have travelled in his own vehicle, and the version of the first respondent, that he had not travelled in the pool vehicle on those occasions but had in fact used his own vehicle and had therefore been entitled to have claimed a contingency allowance.

[55] To arrive at a determination on the disputed issues the second respondent was required to apply the test set out in Stellenbosch Farmers' Winery Group Ltd and Another v Martell Et Cie and Others 2003 (1) SA 11 (SCA),

'To come to a conclusion on the disputed issues a court makes findings on (a) the credibility of various factual witnesses; (b) their reliability; (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour or demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness' reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities that he had to experience or observed the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probabilities and improbabilities of each party's version on each of the disputed issues. In light of its assessment of (a), (b}, and (c) a court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when the court's credibility findings compel it in one direction and evaluation of the general probabilities in another. The more convincing the former, the less convincing will be latter. But when all factors are equipoised probabilities prevail. '[19]

[56] Notwithstanding that arbitrators are required, in terms of section 138(1) of the LRA, to conduct arbitrations with the minimum of legal formalities, this court has accepted that the aforementioned principles are applicable to arbitration

proceedings. This court, per Van Niekerk J, set out the minimum requirements which ought to be adhered to in Sasol Mining (Pty) Ltd v Nggeleni NO and Others (2011) 32 ILJ 723 (LC),

'One of the commissioner's prime functions was to ascertain the truth as to the conflicting ·versions before him. As I have noted, this much the commissioner appears to have appreciated. What he manifestly lacked was any sense of how to accomplish this task, or which tools were at his disposal to do so. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability . He ought then to have considered the probability or improbability of each party 's version.'[20]

[57] The Supreme Court of Appeal has confirmed that a failure on the part of a commissioner to have undertaken the correct enquiry constitutes a gross irregularity in the conduct of proceedings, as envisaged under section 145(2)(a)(ii) of the LRA. The position was stated in Herholdt v Nedbank Limited (701/2012) [2013) ZASCA 97 (5 September 2013) thus,

'In summary, the position regarding the review of CCMA awards iis this. A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s145 (2) (a) of the LRA. For a defect in the conduct of proceedings to amount to a gross irregularity as contemplated by s145(2)(a)(ii), the arbitrator must have misconceived the nature of the inquiry·or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable. '[21]

[58] The second respondent did not conduct the assessment required of her in Stellenbosch Farmers' Winery Ltd, instead having relied upon the unproven telematics report to ·determine the dispute. In so doing, she undertook the enquiry regarding the parties' mutually incompatible versions in a manner which was misconceived .

[59] I find .that the second respondent's failure to have determined the mutually contradictory versions which were before her by way of the application of the accepted test therefor, coupled with her acceptance of the unproven telematics report in preference to the oral evidence before her, including that of Mr Ndlovu, constituted a gross irregularity in the conduct of the arbitration proceedings. This renders the resultant Award reviewable in terms of section 145(2)(a)(ii) of the LRA.

Conclusion

[60] This is not a matter in which it would be appropriate for this court to substitute its own finding for that of the second respondent.

[61] This is so because, excluding consideration of the telematics report, the versions of the respective parties are required to be assessed with reference to the test set out above in Stellenbosch Farmers' Winery Ltd. Components

of that test entail an assessment of the credibility and the reliability of the various witnesses which assessment this court is not in a position to do.

[62] In the absence of the second respondent having drawn any conclusions regarding the issues of the credibility and reliability of the witnesses who appeared before her, there is no possibility of this court assessing the reasonableness or otherwise thereof. It would be inappropriate to attempt to do so at this stage of the proceedings as those assessments are best made by a presiding officer who is able to observe the witnesses and who is thereby best placed to make findings on these issues.

[63] In the circumstances, Iintend to order that the arbitration award under case number KNDB 4986-17 dated 23 March 2017 be reviewed and set aside and that the dispute pertaining to the substantive fairness of the first respondent's dismissal be remitted to the third respondent to be determined de novo by a commissioner other than the second respondent in these proceedings or the second respondent in the proceedings under D891/2018 being the commissioner who issued a default award in favour of the applicant under KNDB 4986-16 on 24 October 2017.

[64] The substantive fairness of the first respondent's dismissal has still not, after some five years, been finally determined. There remains a possibility that the first respondent's dismissal may yet be found to have been substantively unfair. I am accordingly not of the view that it would be in the interests of fairness to order him to pay the applicant's costs of the application.

Order

1. The arbitration award under case number KNDB 4986-17 dated 21 April 2021 is reviewed and set aside.

2. The dispute pertaining to the substantive fairness of the first respondent's dismissal is remitted to the third respondent to be determined de novo by a commissioner other than the second respondent in these proceedings or the second respondent in the proceedings under D891/2018.

3. There is no order as to costs.

Kelsey Allen-Yaman

Acting Judge of the Labour Court of South Africa

APPEARANCES:

APPLICANT: Adv N Ntuli, briefed by Tembe Kheswa Nxumalo Inc

RESPONDENT: Adv S Moodley, briefed by Narain Naidoo & Associates

[1] Record, Exhibit A, pages 6 - 23

[2] Record, Exhibit A, pages 4 - 5

[3] These documents do not form part of the record.

[4] Award, paragraph 2.2

[5] Award, paragraph 10.2

[6] Transcript, page 161

[7] Transcript, page 175

[8] Transcript, pages 253 - 254

[9] Record,Exhibit B, pages 24 - 38

[10] Award, paragraph 4.3

[11] Award, paragraphs 10.4 -10.9

[12] Award, paragraph 4.3

[13] Transcript, page 140

[14] Transcript, pages 140 - 141

[15] At paragraph 31

[16] At paragraph 7

[17] At paragraph 1025G footnote omitted

[18] Transcript, pages 248 - 249

[19] At paragraph 5

[20] At paragraph 9

[21] At paragraph 25