Lennings Rail Services (a Division of the Aveng (Africa) Ltd) v Mphaphuli NO and Others (JR 564/2011) [2013] ZALCJHB 197 (20 August 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

case no: JR 564/2011

In the matter between:

LENNINGS RAIL SERVICES (A division of

the Aveng (Africa) Limited ..................................................................................Applicant

and

COMMISSIONER JOSEPH MPHAPHULI NO ........................................First Respondent

METAL AND ENGINEERING INDUSTRIES

BARGAINING COUNCIL ...................................................................Second Respondent

ABRAHAM KOMAPE ............................................................................Third Respondent

Heard: 22 May 2013

Delivered: 20 August 2013

Summary: process related misconduct – arbitrator’s failure to consider material evidence before him justifies setting

aside of award.

judgment

NAIDOO, AJ

Introduction

[1] This is an application to review and set aside an award delivered by the first respondent (“the arbitrator”) under case number MEGA22999, in terms of which the third respondent’s (“the employee”) dismissal was found substantively

unfair. The arbitrator awarded the employee reinstatement coupled with 10 (ten) months arrear salary.

[2] Despite opposing the application, the employee was neither present nor represented at the hearing. Telephonic attempts to contact the employee’s attorney on record proved unsuccessful and the matter continued in default. The attorney for the employee

presented herself in chambers after the matter had been heard and advised she was waiting in the court foyer for the matter to be called. The attorney declined an opportunity for the matter to be reheard, as suggested by counsel for the applicant and further

declined to outline how she intended to address the applicant’s supplementary heads of argument, which formed the basis of the review application and was served on her at the end of April 2013. It would be prudent at this time to point out this matter had been postponed on 2(two) occasions this year, the last postponement was for the applicant to file its supplementary heads of argument.

Background facts

[3] The employee, employed as a cleaner, was dismissed on 6 November 2008 for gross insubordination. The applicant (“the employer”) alleged that the employee refused to carry out the same instruction on 2 (two) occasions on the day in question, given to him by a work shop manager, Nel. The alleged instruction was to clean oil which had seeped from a machine onto the floor.

[4] Subsequent to his dismissal the employee appealed against the initial findings, on the following grounds;

(a) the harshness of the sanction

(b) evidence presented was ignored

(c) no evidence to prove the charge against the employee

(d) charges were trumped up.

[5] The sanction of dismissal was confirmed and the employee referred an unfair dismissal dispute to the second respondent.

Arbitration

[6] At arbitration the employee, for the first time raised the defence that the instruction given to him was to ‘close a

leaking pipe’ which was a job performed only by fitters and hence beyond the scope of his duties.

[7] The arbitrator, correctly in my view, narrowed the issue to whether or not the instruction was to clean an oil spillage or to fix a leaking pipe, if found to be the latter, the parties agreed that such an instruction went beyond the scope of duties the employee performed and therefore unreasonable.

[8] In analysing the evidence before him the arbitrator weighs the version of Nel, who testified that he instructed the employee to clean the oil spillage and further that he was well aware that the employee could not fix leaking pipes, against the version of the employee, who argued the instruction was to close the leaking pipe. In accepting the employee’s version the arbitrator relies on the fact that on 2 (two) separate occasions, as contained in the minutes to the internal enquiry, the instruction referred to ‘closing an oil leak’. The arbitrator went on to find that, despite Nel disputing the veracity of the minutes, the said document was introduced by the employer in support of its case and it was reasonable to hold the contents as an accurate reflection of what transpired at the enquiry. On this basis the arbitrator accepted the instruction was to close a leaking pipe and with such findings came the consequential conclusion that the employee’s dismissal was substantively unfair.

Review

[9] On review the employer only pursued with its first ground of review, that being that the arbitrator committed a gross misconduct

in ‘unreasonably and blindly accepting that the minutes of the disciplinary enquiry were a true reflection of what was said despite overwhelming evidence to the contrary’ and in so doing, accepted the employee’s version for this reason alone.

[10] The employer argued that in the absence of the arbitrator having regard to the employee’s internal notice of appeal, submitted subsequent to his dismissal and which does not make any mention that the instruction was unreasonable, or the minutes of the appeal hearing (both of which formed part of the employer’s bundle before the arbitrator), which refers to the instruction as cleaning the oil spillage as opposed to fixing a leaking pipe, the arbitrator committed a reviewable process based misconduct.

Evaluation

[11] In Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others 1 the Labour Court held the following;

‘..s 145 requires that the outcome of CCMA arbitration proceedings (as represented by the commissioner's decision) must fall within a band of reasonableness, but this does not preclude this court from scrutinizing the process in terms of which the decision was made. If a commissioner fails to take material evidence into account, or has regard to evidence that is irrelevant, or the commissioner commits some other misconduct or a gross irregularity during the proceedings under review and a party is likely to be prejudiced as a consequence, the commissioner's decision is liable to be set aside regardless of the result of the proceedings or whether on the basis of the record of the proceedings, that result is nonetheless capable of justification.’

[12] This principle was approved by the Labour Appeal Court (LAC) in the decision of Herholt v Nedbank Ltd 2 where the LAC held;

‘Where a commissioner fails to have regard to material facts, this will constitute a gross irregularity in the conduct of the arbitration

proceedings because the commissioner would have unreasonably failed to perform his or her mandate and thereby have prevented the

aggrieved party from having its case fully and fairly determined. Proper consideration of all the relevant and material facts and

issues is indispensable to a reasonable decision and if a decision maker fails to take account of a relevant factor which he or she is bound to consider, the resulting decision will not be reasonable in a dialectical sense.’

[13] With regard to the threshold in which a Court should interfere with an award when faced with an argument of this nature, the LAC in Herholt (supra) held;

‘There is no requirement that the commissioner must have deprived the aggrieved party of a fair trial by misconceiving the whole nature of enquiry. The threshold for interference is lower than that; it being sufficient that the commissioner has failed to apply his mind to certain of the material facts or issues before him, with such having potential for prejudice and the possibility that the result may have been different. This standard recognizes that dialectical and substantive reasonableness are intrinsically interlinked and that latent process irregularities carry the inherent risk of causing an unreasonable substantive outcome.’3

[14] For a party therefore to succeed on the basis of a process related misconduct, it must show the arbitrator did not apply his or her mind to material facts or issues which was presented and secondly that their failure to do so ‘could’ (as opposed to ‘would’) have changed the outcome of their findings.

[15] Relating this to the merits at hand, the arbitrator was faced with a factual dispute; the employee’s application to appeal the dismissal sanction, together with the minutes of the appeal, must be considered material when deciding whether the instruction was to close a leaking pipe or to clean oil which had seeped from a leaking pipe.

[16] In both the notice of appeal and the minutes of appeal, the employee does not raise the allegation that the instruction was to close the pipe which fell outside his scope of duties. The issues raised by the employee and dealt with on appeal, are set out in paragraph [4] of this judgment. Thus this evidence, which was before the arbitrator, must be seen as material to the factual enquiry the arbitrator embarked on.

[17] Given the critical relevance attached to both documents when addressing the factual dispute, the arbitrator’s failure to mention either document in his award, leads one to conclude that he did not consider either documents when making his findings. In this regard see Maepe v Commission for Conciliation, Mediation and Arbitration and another (2008) 29 ILJ 2189 (LAC) at para 8.

[18] Did the possibility exist that had the arbitrator considered the aforementioned documents, he might have come to a different

conclusion than what he did? I fail to see how this question cannot but be answered in the affirmative. Had the arbitrator taken this evidence into account, he would have had to weigh up Nel’s testimony, which would have been supported by the above evidence,

against the employee’s version, who for the first time at arbitration raised the defence he did.

To reiterate the point already made; this is not to conclude that the arbitrator would have come to a different conclusion had he taken the said evidence into account, but rather that, in making a finding to the factual dispute before him, he could have come to a different conclusion had he taken the evidence into consideration.

[19] I am satisfied the arbitrator, in not considering the notice of appeal as well as the minutes of the appeal, committed a misconduct

which justifies the award being set aside.

Counsel for the employer sought I substitute the award with a finding that the employee’s dismissal was fair, yet acknowledged the difficulty this court would have in doing so, especially in the absence of it being privy to the testimony of both Nel and the employee.

This court is not in a position to make a finding on which version should, on a balance of probability, be accepted over that of the other and hence fairness dictates the matter should be remitted to the second respondent for a hearing de novo.

Order

[20] In the premises the following order is made:

20.1. The award delivered by the first respondent under case number MEGA22999 is reviewed and set aside

20.2. The matter is remitted to the second respondent to be considered afresh by an arbitrator other than the first respondent.

20.3. There is no order as to costs.

___________________

Moksha Naidoo

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Advocate Orr.

1(2010) 31 ILJ 452 (LC) at para 17.

2(2012) 33 ILJ 1789 (LAC) at para 36.

3At para 39