Mabilu v Commission for Conciliation, Mediation and Arbitration and Others (JR1711/19) [2021] ZALCJHB 342 (29 September 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no.: JR 1711/19

In the matter between:

LEBOGANG

BRIGHT MABILU Applicant

and

COMMISSIONER FOR CONCILIATION,

MEDIATION AND ARBITRATION First

Respondent

SEELE

MOKWENA N.O. Second Respondent

SITA SOC (PTY) LTD Third

Respondent

Heard: 2 July 2021

Delivered: (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 29 September 2021.)

JUDGMENT

DAVEY, AJ

Introduction

[1] This is an opposed application to review and set aside an arbitration award issued by the second respondent under the auspices of the first respondent. This matter came before me on 2 July 2021.

Background

[2] The applicant commenced employment with the third respondent on 1 May 2014 as an electrical maintenance assistant. The applicant's letter of appointment specified that the applicant would be reporting to electrical maintenance assistance. It would appear that this was an error as the applicant was appointed to the position of electrical maintenance assistance.

[3] On or about 19 June 2014, the applicant started to complain because there was no electrician employed by the third respondent. The applicant's complaint was that as an electrical maintenance assistance he ought to report to and "assist" an electrician. The applicant claimed that he was performing the tasks of an electrician and that these tasks fell outside of his job profile. The third respondent denied this claim. The third respondent claimed that the applicant was required to report to a Supervisor: Electrical Maintenance. It appears to be common cause that the third respondent did not employ any electricians.

[4] Pursuant to this, it would appear that the applicant started to refuse certain instructions and to perform work that he felt was outside the scope of his employment as an electrical maintenance assistant and/or that he felt fell within the job profile of an electrician.

[5] In about May 2017, the applicant was instructed that he was required to use his access card when arriving at and leaving work. Although he originally complied with this instruction, there were various periods of time when access records reflected that the applicant was not using his access card in accordance with this instruction. The applicant's explanation was that he had lost his access card and could not afford to pay R 60.00 to buy a new access card.

[6] In addition to this, the third respondent, on further investigating the matter, concluded that the time recorded by the applicant on his timesheets did not tally with the access records which reflected on various occasions that the applicant was leaving work early (notwithstanding that his time sheets reflected that he was working the required number of hours per day).

[7] On or about 5 December 2018, the applicant was issued with a notice to attend a disciplinary hearing. The allegations against the applicant were as follows:

7.1 Misrepresentation

In that for the period 1 April 2018 to 13 August 2018, the time sheets captured reflect that he work full hours on a daily basis, whereas he left early on most of the days as reflected in the access door statistics report. He thus worked fewer hours than prescribed by the third respondent and was getting paid for hours that he did not work.

7.2 Insubordination

In that:

(a) On or about 30 May 2017, an email written to the applicant by Phumzo Jonas, Supervisor: Electrical Maintenance, subject "Leaving

place of work early" instructed the applicant to swipe his access card at the reception area booths every time he arrived at work or left work. He ignored this instruction and was still not swiping his access card at the reception area booths when arriving or leaving work.

(b) On 3 October 2018, an email was written to him by Mr Jonas instructing him to go and repair lights at Level 2 Ladies restrooms and provide feedback when done. The applicant refused to carry out the instruction.

7.3 Dereliction of duty

In that on 30 October 2018 he was called by Linda Seloane to attend to the logged calls but he refused to do so and so one of his colleagues had to attend to the call.

7.4 Misappropriation of SITA's material

In that on 2 October 2018, he took a 5-meter cable and 20 Amp circuit breaker from the Central Store at Centurion which could not be accounted for.

7.5 Insolence

In that on or about 9 October 2021, while Mr Jonas was repairing a convection oven, the applicant refused to hand him a tool when requested to do so. The applicant further informed Mr Jonas that he was not Mr Jonas's assistant.

[8] The applicant pleaded not guilty to the charges. The disciplinary hearing was held and the applicant was found guilty of all of the allegations against him, and dismissed. The applicant referred a dispute to the first respondent. The dispute was not resolved at conciliation.

[9] The dispute proceeded to arbitration. The second respondent found that the applicant was guilty of misrepresentation, insubordination and dereliction of duty (allegations 1, 2 and 3) but found that he was not guilty of misappropriation and insolence (allegations 4 and 5). The second respondent found that the applicant's dismissal was substantively fair.

Grounds of review

[10] The applicant, who is an unrepresented individual, has not clearly set out the grounds of review on which he seeks to review and set aside the second respondent's award. Considering the submissions set out by the applicant in the founding affidavit, the grounds of review can be broadly summarised as being that the second respondent:

10.1 ignored relevant and admissible evidence and submissions by the applicant and/or failed to properly consider the evidence before him;

10.2 committed a gross irregularity in the conduct of the arbitration by failing to allow the applicant to cross-examine one of the witnesses thereby preventing a fair trial on the issues;

10.3 was biased;

10.4 came to an unreasonable conclusion in finding that the applicant was guilty of misrepresentation, insubordination and dereliction of duty.

Legal framework and evaluation

[11] It is trite that the test for review as formulated by the Constitutional Court (CC) is that the decision reached by the commissioner in his/her award must be one that a reasonable decision-maker could not have reached. The CC in Sidumo and another v Rustenburg Platinum Mines Limited and others[1] stated as follows:

"[79] To sum up. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances."

[12] In Herdoldt v Nedbank Ltd,[2] the Supreme Court of Appeal held that:

"The Sidumo test will justify setting aside an award on review if the decision is 'entirely disconnected with the evidence' or is 'unsupported by any evidence and involved speculation by the Commissioner'."

[13] In Goldfields Mining South Africa (Pty) Limited (Kloof Gold Mine) v CCMA and others,[3] the Labour Appeal Court held that:

"Sidumo does not postulate a test that requires a simple evaluation of the evidence presented to the arbitrator and based on that evaluation, a determination of the reasonableness of the decision arrived at by the arbitrator. The court in Sidumo was at pains to state that arbitration awards made under the Labour Relations Act (LRA) continue to be determined in terms of s145 of the LRA but that the constitutional standard of reasonableness is 'suffused' in the application of s145 of the LRA. This implies that an application for review sought on the grounds of misconduct, gross irregularity in the conduct of the arbitration proceedings, and /or excess of powers will not lead automatically to a setting aside of the award if any of the above grounds are found to be present. In other words, in a case such as the present, where a gross irregularity in the proceedings is alleged, the enquiry is not confined to whether the arbitrator misconceived the nature of the proceedings, but extends to whether the result was unreasonable, or put another way, whether the decision that the arbitrator arrived at is one that falls in a band of decisions to which a reasonable decision-maker could come on the available material."

[14] In Quest Flexible Staffing Solutions (Pty) Ltd (a division of Adcorp Fulfilment Services (Pty) Ltd v Legobate,[4] the Labour Appeal Court referred with approval to the decision of the Labour Court in Herholdt supra and held that:

"[t]he test the Labour Court is required to apply in a review of an arbitrator's award is this: 'Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?' Our courts have repeatedly stated that in order to maintain the distinction between review and appeal, an award of an arbitrator will only be set aside if both the reasons and the result are unreasonable. In determining whether the result of an arbitrator's award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrator's reasoning is found to be unreasonable, the result is, nevertheless, capable of justification for reasons other than those given by the arbitrator. This result will, however, be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator."

"An award will no doubt be considered to be reasonable when there is a material connection between the evidence and the result or, put differently, when the result is reasonably supported by some evidence. Unreasonableness is, thus, the threshold for interference with an arbitrator's award on review."

[15] In Fidelity Cash Management Services v CCMA,[5] the court held that:

"... the reasonableness or otherwise of a commissioner's decision does not depend – at least not solely – upon the reasons that the commissioner gives for the decision. In many cases the reasons which the commissioner gives for his decision, finding or award will play a role in the subsequent assessment of whether or not such decision or finding is one that a reasonable decision maker could or could not reach. However, other reasons upon which the commissioner did not rely to support his or her decision or finding but which can render the decision reasonable or unreasonable can be taken into account. This would clearly be the case where the commissioner gives reasons A, B and C in his or her award but, when one looks at the evidence and other material that was legitimately before him or her, one finds that there were reasons D, E and F upon which he did not rely that could have relied which are enough to sustain the decision."

Analysis of the evidence and the grounds of review

[16] It is common cause that the applicant was employed as an electrical maintenance assistant and that the third respondent did not employ any electricians. The applicant was dissatisfied as he felt that he was being required to perform work that should have been performed by an electrician. The applicant refused to perform certain instructions and work that he felt did not fall within the scope of his employment.

[17] Further, the applicant was instructed to use his access card at the reception area when arriving at and leaving work. There were occasions when the applicant did not use the access card when he arrived at work and when he left work (the applicant's explanation was that he lost his card and that he could not afford to pay R 60.00 for a new card).

[18] There were occasions where the access reports indicated that the applicant left work early even though he recorded in his time sheets that he worked a full day (the applicant's explanation was that there was a problem with the access control system and that the records were thus inaccurate).

[19] The second respondent considered the applicant's contention that there was a possibility of system errors, his admission that he used the main gate when arriving and leaving the premises, and his claim that he had lost his access card and failed to replace it. The second respondent found that:

"[15] Therefore where the applicant's time sheets reflected that he worked the eight hours contrary to the system report and had not complied with the instruction to swipe his access card at reception, the time sheets he compiled could not be regarded as a reliable record of his work attendance. In view of this evidence, the applicant made himself guilty of the offence." And "I am not persuaded that it could have taken six months or beyond for him to acquire a card which was a requirement for every employee to possess. He did not dispute the first witness' evidence that security could issue temporary access cards until a permanent one was created."

[20] The second respondent concluded that the applicant was insubordinate in his conduct towards his superior in his failure to use his access card to enter and leave the premises.

[21] In so far as the allegation of dereliction of duty was concerned, the second respondent found that:

"the applicant's own evidence suggests that such call was logged as he was able to identify the kind of job he had to do. Considering the applicant's evidence that he stopped carrying out duties which fell outside the scope of his job profile, like repairing lights, his attitude towards the call logged for this job was the same, that he would not do it. Like the repair of lights, the applicant's reaction was not about his capability but one aimed at resolving his grievance. This can be noted from his evidence that he had been carrying out these tasks and stopped in November 2018 when he realised that the respondent was not committed to resolving his grievance. This is a job related to his responsibilities and he was capable of doing it. Thus his refusal to do it under the circumstances made him guilty of the offence."

[22] Having read the record of the arbitration and the arbitration award, I cannot find that the second respondent ignored relevant and admissible evidence and submissions by the applicant and/or failed to properly consider the evidence before him. When one considers the totality of the evidence, I am of the view that the award falls within a band of reasonable decisions.

[23] In so far as the applicant claims that the second respondent refused to allow him to cross-examine one of the third respondent's witnesses, this allegation was bald and unsubstantiated, and does not support a finding that the second respondent committed a gross irregularity in the conduct of the proceedings, committed misconduct in relation to his duties as an arbitrator, and/or prevented a fair trial on the issues. In any event, considering the totality of the evidence before the second respondent, it cannot be said that the decision reached was unsupported by the evidence and was unreasonable.

[24] There was no evidence before me that indicated that the second respondent was biased and/or that the second respondent created a perception of bias.

[25] If one has regard to the totality of the evidence, I am of the view that the award falls within a band of reasonable decisions and accordingly does not stand to be reviewed and set aside.

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

Order

1. The application to review and set aside the arbitration award is dismissed.

2. There is no order as to costs.

R. Davey

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr Lebohang Bright Mabilu

For the Respondent: Mampeule Attorneys Inc

[1] (2007) 28 ILJ 2405 (CC).

[2] (2013) 34 ILJ 2795 (SCA) at para 13.

[3] [2007] ZALC 66; [2014] 1 BLLR 20 (LAC) at para 14.

[4] [2015] 2 BLLR 105 (LAC) at paras 12 and 13.

[5] (2008) 29 ILJ 964 (LAC) at para 102.