Mainganya v Commissioner for Conciliation Mediation And Arbitration and Others (JR2111/10) [2014] ZALCJHB 392 (15 October 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: JR2111/10

In the matter between:

ISAAC MAINGANYA

Applicant

and

COMMISSIONER FOR CONCILIATION,

MEDIATION AND ARBITRATION

First Respondent

LARRY SHEAR NO

Second Respondent

CLIVE TEUBES CC

Third Respondent

Heard: 14 January 2014

Delivered: 15 October 2014

SNIDER, AJ

[1] In this matter, the Applicant seeks to review and set aside an award made by the Second Respondent (“the Commissioner”) under case number GAJB 35241-09 on 1 August 2010[1] in terms of which the Commissioner found that the Applicant’s dismissal was both procedurally and substantively fair.

[2] The background to the matter is, briefly, as follows. The Applicant was charged with five different charges.[2]

[3] To avoid prolixity I will not set out the full wording of the charges here as the Commissioner only found the Applicant guilty in respect of one of the charges being “insolent behaviour” – having no regard for the authority of management; continuous challenging of decisions made by Mr Henk”. This charge arose out of a pattern of behaviour on the part of the Applicant whereby he would repeatedly challenge the authority of his seniors and make it extremely difficult for them to deal with him in the workplace.

[4] In this regard, at the arbitration, the Third Respondent (the Respondent in the arbitration) led the evidence of a Mr Heath, Mr Van den Berg, Ms Uys and Mr Rijkenberg.

[5] The evidence was that in respect of:

5.1. Mr Heath, with whom the Applicant addressed a pay query, which was not resolved timeously, the Applicant kept on returning to his office, demanding results. He accused Mr Heath of not knowing how to do his job and of being incompetent. On at least two occasions, the Applicant accused Mr Heath of being a racist;

5.2. Ms Uys, she shares an office with Mr Heath, and testified quite clearly that the Applicant acted in an aggressive manner and that she heard the Applicant refer to Mr Heath as a racist;

5.3. Mr Van den Berg, he testified that the Applicant’s behaviour was inappropriate and left much to be desired; and

5.4. Mr Rijkenberg, who was the Applicant’s direct supervisor, testified that the Applicant refused to comply with instructions, many of which related to safety in the factory. He said that the applicant would merely walk away and ignore him.

[6] The Applicant raises a host of issues which he advances as grounds of review.

[7] There are some inherent technical difficulties with the Applicants application. For example, neither his founding affidavit nor his supplementary affidavit is properly attested to. In regard to the Applicant’s supplementary affidavit, particularly, it does not seem to constitute an affidavit in any respect.

[8] However, notwithstanding the above, I will consider the merits of the Applicant’s review application to avoid the prospect of the matter having to be resuscitated by the Applicant by observing all of the formalities and having to apply for condonation to bring the matter before this Court again. I see no need for this under these circumstances and accept, at least, that the Applicant’s

founding affidavit is attested to before a Commissioner of Oaths who was a member of the South African Police Service.[3]

[9] The supplementary affidavit, however, is not attested to at all but, in any event, does not take the matter any further.

[10] The grounds of review raised by the Applicant in his founding affidavit, which could conceivably be relevant for the purposes of assessing the reasonableness of the Commissioner’s decision in relation to the insolence charge, are allegations that –

10.1. the Commissioner was corrupt, biased and accepted a bribe;

10.2. the Commissioner ignored legal principles;

10.3. the Applicant was not given an opportunity to cross-examine the Respondent’s witnesses;

10.4. the Commissioner failed to take a collective agreement into account;

10.5. the Commissioner failed to take into account a breach or breaches by the Respondent of its own code of discipline;

10.6. the Commissioner did not take into account any rule or policy which was allegedly contravened;

10.7. the Commissioner did not make findings in relation to the dates of certain incidents;

10.8. the Commissioner failed to provide a Venda interpreter;

10.9. the Commissioner issued a biased award;

10.10. the Commissioner took into account evidence that was not before the arbitration;

10.11. the Commissioner failed to apply his mind to the facts and evidence; and

10.12. the Commissioner would not hear two of the witnesses the Applicant wished to call.

[11] In relation to the allegation by the Applicant that the Commissioner was corrupt, I have found no evidence whatsoever to this effect. The allegations made by the Applicant in this regard are bald and unsubstantiated. I have also not been able to find any pertinent evidence that the review application was in fact served on the Commissioner.

[12] In matters where allegations of bias and corruption are made against a Commissioner, I am of the view that it is incumbent on the Applicant, not only to serve the application on the First Respondent but also to ensure that it comes to the attention of the Commissioner personally. The Applicant has failed to do this. In fact, it is not entirely clear from the notice of motion to whom and where precisely the notice of motion was directed.[4]

[13] In any event the allegations made in respect of the Commissioner are, as set out above, at best, bald, vague and unsubstantiated. They are not borne out by either the reconstructed record[5] of the evidence in the matter or the award itself. Under the circumstances, I reject this as a ground of review.

[14] The Applicant complains that the Commissioner ignored legal principles. I am not able to discern any legal principles which were ignored by the Commissioner and the particularity in respect of this allegation provided by the Applicant[6] makes no sense in the context of the insolence charge.

[15] The alleged ground of review that the Commissioner did not take a collective agreement into account is similarly not supported by anything in the reconstructed record or in the award itself.

[16] In respect of the alleged deviation from their own code of discipline by the employer, there is simply no evidence of this having been an issue at the arbitration.

[17] The Applicant alleges that the Commissioner did not consider any rule or policy which was contravened. Even if this was the case, the nature of the complaint, insolence and the manner in which the employee was alleged to have behaved in the evidence before the Commissioner does not require the consideration of any particular rule of policy. It is clearly conduct which falls outside the scope of a tolerable employment relationship between an employer and employee and a finding to this effect was reasonably made by the Commissioner.

[18] The complaint of the Applicant relating to the dates of various incidences does not appear to be relevant to the insolence charge but, even if it is, it simply cannot constitute a reviewable irregularity bearing in mind the test on which reviews are based which is set out below.

[19] The Applicant makes the allegation that the Commissioner failed to apply his mind to the facts and evidence and avoided most of the Applicants facts and remained partial. Again bearing in mind the reconstructed record and the papers as a whole, this simply does not appear to be the case.

[20] To the extent that certain witnesses were not heard by the Commissioner, the Commissioner is entitled, in terms of section 138 of the Labour Relations Act[7] to ‘conduct the arbitration in a manner that the Commissioner considers appropriate in order to determine the dispute fairly and quickly’. It appears that, at best for the Applicant, the additional witnesses were going to give evidence in respect of events which had already been dealt with in evidence and under these circumstances, the Commissioner did not see any value in hearing their evidence.

[21] In any event these witnesses were to have given evidence in respect of a charge where the Applicant was not found guilty.

[22] In respect of being given an opportunity to cross-examine, again I see no evidence of this from the reconstructed record or the award.

[23] As far as the interpreter is concerned, it appears that an interpreter was provided and that the Applicant understood the language in which the interpreter spoke to him.

[24] The Commissioner does not appear to have taken into account evidence that was not before him. This is a bald allegation without any supporting facts.

[25] The test in terms of which a review application is adjudicated is a well-known one and emerges clearly from the decisions in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,[8] Herholdt v Nedbank Ltd and Another[9] and Goldfields Mining (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others.[10] The following is, with respect, a useful exposition of the test from the judgment of Waglay JP in the Kloof decision:[11]

‘Sidumo does not postulate a test that requires a simple evaluation of the evidence presented to the arbitrator and based on that evaluation, 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 (“the LRA”) continued to be determined in terms of section 145 of the LRA but that the constitutional standard of reasonableness is “suffused” in the application of section 145 of the LRA. This implies that the 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 setting aside of the award if any of the above grounds are found to be present. In other words, in the case such as the present where a gross irregularity in the proceedings is alleged, 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.’

[26] The Commissioner deals with the evidence of the Applicant’s misconduct with proper reference to the evidence that was before him and comes to the conclusion that through his persistent insolent behaviour, the employee rendered himself unemployable and, therefore, concluded that his dismissal was neither procedurally nor substantively fair.

[27] There is no basis upon which another Commissioner, acting reasonably, on the strength of the evidence that was before the Commissioner would not have been able to come to the same conclusion to which the Commissioner came, which is a conclusion well within the band of reasonableness given the evidence before the Commissioner.

[28] In the premises, I make the following order:

28.1. The application is dismissed;

28.2. There is no order as to costs.

__________________

SNIDER, A J

Acting Judge of the Labour Court

Appearances

For the Applicant:

No appearance recorded.

For the Third Respondent: Marius Van Niekerk Attorney.

[1] A copy of the award appears at page 104 of the papers.

[2] Page 71 of the documents.

[3] Page 13 of the documents.

[4] Page 3 of the Documents.

[5] The record page 1 to 12.

[6] Page 11 of the papers.

[7] Act 66 of 1995 as amended.

[8] [2007] 12 BLLR 1097 (CC).

[9] (2013) 34 ILJ 2795 (SCA).

[10] 2014 35 ILJ 943 (LAC).

[11] Kloof (supra) at para 14.