In2Food (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR 848/18) [2021] ZALCJHB 126 (12 June 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 848/18

In the matter between:

IN2FOOD (PTY) LTD

Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

First

Respondent

COMMISSIONER L.D MAHLANGU N.O

Second Respondent

BUSJU obo NTEMI GLADYS

Third Respondent

Heard: 24 November 2020

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, and publication on the Labour Court’s website. The date and time for hand-down is deemed to be… 12 June 2021 at 22:00

JUDGMENT

TLHOTLHALEMAJE, J

Introduction and background:

[1] In this opposed application, the applicant (In2Food (Pty) Ltd) seeks an order reviewing and setting aside the arbitration award dated 22 April 2018, issued by the second respondent (Commissioner), acting under the auspices of the third respondent, the Commission for Conciliation Mediation and Arbitration (CCMA).

[2] The employee on whose behalf the review application is opposed (Ms Ntemi), was dismissed on 20 October 2017 following a disciplinary enquiry into allegations of misconduct related to theft. Subsequent to her dismissal, a dispute was referred to the CCMA and when attempts at conciliation failed, the matter came before the Commissioner for arbitration. In the award, it was found that the dismissal of Ntemi was procedurally and substantively unfair. The Applicant was ordered to reinstate Ntemi in its employ, with retrospective effect.

The arbitration proceedings and the award:

[3] The evidence before the Commissioner was as follows;

3.1 Ntemi was employed as a Quality Controller since 2002. She was dismissed following allegations into;

‘Theft and/or attempted theft; in that you stole braai meat packs and 500ml cool drinks on 12th and 13th of September 2017, and deceitfully presented fellow employee bag when searched by security officer’ (Sic)

3.2 During the period 12 and 13 September 2017, the Applicant held a ‘braai day’ event for all its employees. Employees could depending on their shifts, only attend the event on one of the two days scheduled.

3.3 Ntemi was a member of an Employee Committee that was tasked with serving packs of braai meat and cans of soft drinks to employees attending the event. She was therefore required to attend the event in his capacity as Committee member and thus responsible for serving other employees, whilst on the second day she was to attend as a ‘guest’, and to be served by other Committee members.

3.4 The Committee had set-up a serving station near the occupational health clinic at the applicant’s premises. Employees attending the event upon being issued with their braai packs and soft drinks, had an option of either participating in the braai event or taking their packs home.

3.5 The allegations made against Ntemi by occupational health practitioners at the clinic (viz, Ncumisa Bakhe, Mtombi Binka and Zandile Mfundisi) are that on 12 September 2017, she was supposed to be serving other

employees at the event, but she was seen putting meat braai packs and soft drinks in her blue bag that was under a table, and also

consuming a soft drink. Bakhe and Binka testified before the Commissioner in this regard, with Bakhe confirming that she had confronted Ntemi about her conduct.

3.6 Further allegations against Ntemi are that on 13 September 2017, she was supposed to have attended the event as a ‘guest’. Despite being specifically instructed by the Applicant’s Human Resources Manager not to serve on that day, she was seen not only serving other employees, but also putting meat braai packs and soft drinks in her bag which was under a table.

3.7 The Human Resources Manager upon being informed of the incident had then instructed security officers to conduct a search when Ntemi was to leave. It is common cause that the search did not reveal any concealed items on the person of Ntemi or in the vehicle that she was traveling in.

3.8 The Applicant’s contentions however was that Ntemi had conceded when confronted by Bakhe, that she had taken the items. It also alleged that when a search was conducted in the vehicle Ntemi was traveling in, CCVT footage had revealed that she had obstructed one of the security officers’ view, and had failed to present them with her own blue bag, but had only handed in bags belonging to another person in the vehicle.

3.9 Ntemi’s evidence before the Commissioner was to deny the allegations against her as no evidence was presented to prove those allegations. She further challenged the procedural fairness of her dismissal, as she was not allowed union representation at the internal proceedings. This was in circumstances where the union (BUSJU), did not have a recognition agreement with the Applicant. Ntemi however contended that despite the proceedings being adjourned to enable her to find a fellow employee to represent her, she could not find anyone at short notice, and she had to proceed with the hearing unrepresented.

[4] The Commissioner in finding that the dismissal of Ntemi was substantively and procedurally unfair concluded as follows;

4.1 Despite allegations that Ntemi was seen packing the items in her back, it was common cause that these were not found in her possession, and there was no ‘conclusive evidence’ to prove that she had kept those items in her possession when she was searched, nor was there conclusive proof that the soft drink she was seen consuming belonged to the Applicant.

4.2 In regards to procedural unfairness, the Commissioner held found that even if a representative of the Union was not entitled to represent Ntemi since the Union did not have a recognition agreement with the Applicant, the chairperson of the enquiry ought to have afforded Ntemi sufficient time to find an alternative representative. This was in order to enable her to prepare for the enquiry, since she could not find an alternative representative within the period she was allowed to find one. This was even more appropriate given the seriousness of the allegations against her.

The grounds for review and evaluation:

[5] The Applicant had raised various preliminary points, primary of which was that the answering affidavit was filed out of time by some 57 days; and that Ntemi’s ‘application for condonation’ was not in compliance with the Rules of this Court. Given the conclusions to be reached in this judgment, I do not even deem it necessary to determine these preliminary points.

[6] The Applicant contends that the award is reviewable on various grounds, including that it does not correlate with the Commissioner’s findings of fact; is not justifiable in relation to the evidence presented; the Commissioner applied an incorrect and stricter test in relation to the evidence in his analysis; failed to properly apply his mind to the evidence; exceeded his powers; and that the findings are unreasonable in relation to the evidence presented before him.

[7] The test on review is fairly settled. The enquiry is whether the decision reached by the commissioner is one that a reasonable decision-maker could not reach.[1] As further reiterated in Duncanmec (Pty) Ltd v Gaylard NO and Others,[2] the correct test is whether the award itself meets the requirement of reasonableness, and that an award would meet this requirement if there were reasons supporting it.

[8] To the extent that the applicant complained of several irregularities committed by the Commissioner, it was held in in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine)[3], that;

‘Failing to consider a gross irregularity in the above context would mean that an award is open to be set aside where an arbitrator (i) fails to mention a material fact in his award; or (ii) fails to deal in his/her award in some way with an issue which has some material bearing on the issue in dispute; and/or (iii) commits an error in respect of the evaluation or considerations of facts presented at the arbitration. The questions to ask are these: (i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute? (ii) Did the arbitrator identify the dispute he was required to arbitrate (this may in certain cases only become clear after both parties have led their evidence)? (iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate? (iv) Did he or she deal with the substantial merits of the dispute? and (v) Is the arbitrator’s decision one that another decision-maker could reasonably have arrived at based on the evidence?’

[9] A reading of the Commissioner’s award clearly points to gross irregularities as pointed out in Goldfields and as complained about by the Applicant in these proceedings. The Commissioner clearly failed to deal with the substantial merits of the dispute before him. In this regard, it needs to be pointed out that even if the provisions of section 138(7)(a) of the Labour

Relations Act (LRA)[4] requires a Commissioner to issue an award with brief reasons, this does not imply that the Commissioner must give a cursory glance over the evidence presented before him, without any attempt at indicating which witness presented what evidence albeit in summary form, and what evidence or which part thereof was relied upon in making conclusions, and give reasons why any particular evidence was accepted or rejected.

[10] In this case, it cannot be gathered from the award, which evidence, and by which witness was dealt with in arriving at a decision. This is despite the Applicant in this case having called five witnesses to testify before the Commissioner in regards to the allegations against Ntemi. The Commissioner merely referred to such evidence in generalised terms, without any attempt at demonstrating why and which piece of evidence was accepted or rejected for whatever reasons.

[11] It has long been said that a commissioner is obliged to apply his or her mind to the issues in a case. Commissioners who do not do so are not acting lawfully and/or reasonably and their decisions will constitute a breach of the right to administrative justice.[5] The shot-gun approach adopted by the Commissioner in this case and in regards to the evidence presented before him clearly is of no assistance to this Court in determining whether if at all, he had applied his mind to the overall evidence presented before him or how he arrived at his findings.

[12] It is accepted that in determining whether the commissioner’s decision falls within a band of reasonableness, this Court is obliged to scrutinize the process in terms of which the decision was made.[6] If however a commissioner fails to even point out which material evidence was taken into account in arriving at a decision, it is not for the reviewing Court to second-guess his or her thought processes in making a determination as to whether the decision falls within a range of reasonableness.

[13] Other than the Commissioner’s approach which makes it difficult for the reviewing Court to determine how his outcome was arrived at, a blatant irregularity in the award pertains to the standard of proof applied by the Commissioner in analysing the evidence. The applicable test when assessing evidence in the face of disputed facts is trite[7]. The test or standard of proof remains that of a balance of probabilities, and the question that should be answered ultimately is whether the probabilities favoured a conclusion that the Applicant had not discharged its onus in proving the fairness of Ntemi’s dismissal. This exercise is part of the functions of the Commissioner as confirmed in Edcon Ltd v Pillemer NO & others[8] which is to weigh all the relevant factors and circumstances of each case in order to come up with a reasonable decision. Clearly as pointed out on behalf of the Applicant, the Commissioner by requiring ‘conclusive evidence’ misconstrued this basic test when analysing the evidence before him.

[14] Based on the above primary concerns raised in this judgment, the Commissioner’s award clearly fails to meet standard of reasonableness. To the extent that the Commissioner failed to apply his mind to the issues before him or have regard to those issues, he not only acted in breach of the right to administrative justice, but also failed to arrive at a reasonable decision. It therefore follows that this matter ought to be remitted to the CCMA for a hearing de novo.

[15] I have further had regard to the requirements of law and fairness to the extent that the Applicant sought a costs order. It is my view that this Court should be reluctant to mulct unsuccessful employees or parties who opposed an application to review an award that was issued in their favour. The exception is of course where the opposition was not only mala fide but also misconceived. It cannot be argued that Ntemi’s opposition was mala fide.

[16] Accordingly, the following order is made;

Order:

1. The arbitration award issued by the Second Respondent under case number GAEK12325-17 dated 22 April 2018 is reviewed and set aside.

2. The dispute is remitted to the First Respondent (CCMA) to be heard de novo before a Commissioner other than the Second Respondent.

3. There is no order as to costs.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

M. E. Duvenage of Duvenage Attorneys

For the Third Respondent:

M. Sebopa, instructed by T Faku Attorneys INC

[1] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007) 28 ILJ 2405 (CC) at para 110

[2] (2018) 39 ILJ 2633 (CC) at para 43. See also Herholdt v Nedbank Ltd and Another (2013) 34 ILJ 2795 (SCA) at para 25

[3] (JA 2/2012) [2013] ZALAC 28; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) at paras 14 and 20

[4] Act 66 of 1995, as amended

[5] CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at para 84

[6] Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2010) 31 ILJ 452 (LC) at para 17

[7] Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Kie SA and Others 2003 (1) SA 11 (SCA) at para 14I–15E, where it was held that; 'To come to a conclusion on the disputed issues a court makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (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 and 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 he had to experience or observe 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 the light of its assessment of (a), (b) and (c) the 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.’

[7] Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Kie SA and Others 2003 (1) SA 11 (SCA) at para 14I–15E, where it was held that;

'To come to a conclusion on the disputed issues a court makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (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 and 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 he had to experience or observe 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 the light of its assessment of (a), (b) and (c) the 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.’

[8] (2008) 29 ILJ 614 (LAC) para 21.