Mashego v Commission for Conciliation, Mediation and Arbitration and Others (JR 242/2018) [2020] ZALCJHB 111 (15 July 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 242/2018

In the matter between:

DIMAKATSO MASHEGO

First Applicant

And

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

First Respondent

HAPPY HARRY MATHEBULA N.O.

Second Respondent

MPUMALANGA PROVINCIAL LEGISLATURE

Third Respondent

Heard: 14 May 2020

Delivered: This judgment is handed down electronically by circulation to the parties' legal representatives by email, and release to this Court’s library and SAFLII. The date and time for hand-down is deemed to be 14:00 on 15 July 2020.

JUDGMENT

MABASO AJ

Introduction

[1] The principal question in these proceedings is: did the Second Respondent (the Arbitrator) deal with the substance of an unfair dismissal dispute between Mr Dimakatso Mashigo (the Applicant) and Mpumalanga Provincial Legislature (the Employer) by considering all the information that was placed before him related to the dispute, and reached a conclusion that a reasonable decision-maker could have made?[1]

[2] The Applicant seeks an order to review and set aside an arbitration award issued by the Arbitrator under the CCMA case number MP 4696/2017 and that it be replaced with an order that his dismissal by the Employer was both procedurally and substantively unfair. In addition, the Employer be ordered to reinstate him; alternatively, the unfair dismissal dispute be referred back to the CCMA for a de novo hearing before a different arbitrator. The Employer is opposing this application.

Relevant background

[3] The Applicant worked for the Employer as a Senior Manager Risk Management until dismissed on 12 May 2017, following a guilty verdict on five counts of misconduct. This court deems it necessary to reproduce the charges since this application mostly revolves on an allegedly irregular manner that the Arbitrator dealt with and/or lack of analysis thereof. The charges were:

“CHARGE 1

You have allegedly committed an act of misconduct under the Mpumalanga Provincial Legislature’s Disciplinary code, which amounts to gross insubordination”, in that you, at or near the Mpumalanga Provincial Legislature, on or about 20 June 2016, without a valid reason or just cause, defied an instruction by your supervisor to attend a scheduled meeting with him, which was intended to assist you compile the Monitoring & Evaluation Report on the implementation of the Risk Management Plan for 2015/16 and 2016.

CHARGE 2

You have allegedly committed an act of misconduct under the Mpumalanga Provincial Legislature’s Disciplinary Code, which provides

“fails to carry out a lawful order or routine instruction without just or justifiable cause in that, at or near Mpumalanga

Provincial Legislature, on or about 30 June 2016, you failed to submit the required documentation, as instructed, to the Chairperson

of the Risk Management Committee, that was necessary for the meeting on 06 July 2016.

CHARGE 3

You have allegedly committed an act of misconduct under the Disciplinary Code which provides “prejudice and undermine the

administration, discipline or efficiency of the Legislature in that, at or near Mpumalanga Legislature precinct, or about 06 July 2016, you caused the Mpumalanga Provincial Legislature to incur fruitless expenditure and the catering for all members of the Committee.

CHARGE 4

You have allegedly committed an act of misconduct under the Mpumalanga Provincial Legislature’s Disciplinary Code, which provides

fails to comply with or contravenes an Act, regulation or legal obligation in that, at or near Mbombela on or about 12 August 2016,

you, without permission from the Speaker, performed remunerative work outside your employment in contravention of section 28 (1) (b) of the Mpumalanga Provincial Legislature Service and Administration Act, No.7 of 2006.

CHARGE 5

You have allegedly committed an act of misconduct under the Mpumalanga Provincial Legislature’s Disciplinary Code, which provides

fails to comply with or contravenes an Act, regulation or legal obligation in that , at or near Mpumalanga Provincial Legislature

precinct, at the beginning of the financial year 2016/2017, you failed to declare your financial interest in contravention of section

28 (2) of the Mpumalanga Provincial Legislature Service and Administration Act, No.7 of 2006.

[4] Before the Arbitrator, the Employer called three witnesses, namely Ms Gaylene Deiner (Ms Deiner), Mr Linda Mwale (Mr Mwale) and Ms Nomfundo Thuse (Ms Thuse). At the conclusion of the arbitration, the Arbitrator issued the arbitration award, which is the subject of this application, wherein he meticulously surveyed the evidence before him, observed the applicable code of good practice on dismissal, and analysed each of the charges. Thereafter, he found that the Applicant was guilty of all the charges and dealt with both mitigating and aggravating factors before confirming dismissal as an appropriate sanction.

Grounds of review and applicable principles

[5] In the founding papers, it is contended that the Arbitrator was biased in that he was overprotective of the witnesses of the Employer, examples given are excerpts in the testimony of both Mesdames Geiner and Thuse. He is accused of what is termed “continuously making unnecessary arguments” with the Applicant’s representative.

[6] That the Arbitrator failed to take into account all the relevant legislation and case law.

[7] The Arbitrator is accused of failing to consider all the relevant evidential material before him. It is alleged that he committed an error of law by shifting “the duty to prove when he suggested that [the Applicant] should have called Mr Xolani Mlambo to corroborate [the Applicant’s] story, while on the other hand, he did not make the same position about [the Employer]’s witnesses who also made several references to the same person during the testimonies.”

[8] That he failed to take into account the issues of consistency and victimisation, as raised by the Applicant, following recommendations made as a result of his findings of maladministration.

[9] The Applicant contends that the Arbitrator failed to recognise that the case was technical and complex as it “was above his level of comprehension and to take appropriate steps to correct it” to avoid prejudice to either parties.

[10] The Labour Appeal Court, in expounding on the review test, in Head of the Department of Education v Mofokeng and Others[2] held thus,

“[32] …Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the Arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc. must be assessed with the purpose of establishing whether the Arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.

[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide

a compelling indication that the Arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the Arbitrator’s conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the Arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The Arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.”

[11] To determine this application, it is appropriate that the following part of the evidence relating to charges be examined. I henceforth deal with the evidence on charges 2,3,4, and 5.

Charges 2 and 3

[12] Ms Deiner, in support of charge two testified as follows: she is the Chairperson of Risk Management Committee of the Employer. The Committee was scheduled to meet on 06 July 2016. I interpose and confirm that, according to the records, it is common cause that members of the Committee met on 06 July 2016, but the meeting did not commence because they were not provided with necessary documents, on time, as required by the policy.[3] The Applicant’s duty was to circulate a notice, consisting of the agenda, 10 days before the date of the meeting. And five days before this date, to provide all the members with the supporting meeting pack. She continuously kept on reminding the Applicant to comply with this duty,[4] because previously she had a bad experience with the Applicant complying with the policy.[5] The Applicant’s assistant, Mr Mlambo, was copied to the emails sent to the Applicant reminding him about his duty.

[13] On 01 July 2016, Ms Deiner received an email from Mr Mlambo indicating that the Applicant was on leave until 4 July 2016. The excerpt of the email reads as follows:

“ After follow up with [the Applicant] we can safely say the meeting will take place on Wednesday, 06 July 2016 as it is already coordinated.”[6]

[14] Ms Deiner replied thereto by emphasising that the Applicant had a duty to make sure that everything was attended to, before going on leave.[7] On 04 July 2016 and 05 July 2016, she received the agenda of the meeting and the pack respectively. In terms of the applicable policy, the Applicant was “the secretary of the committee”.[8] The Applicant did not dispute the summarised evidence. The Applicant argued that Mr Mlambo was in charge and/or was supposed to make necessary arrangements for the meeting.[9]

[15] The Arbitrator concluded that the Applicant was the cause of why the meeting was unsuccessful, and it was the Applicant’s duty to circulate all the aforestated documents. The Arbitrator acknowledges that at some stage, the Applicant was on leave but says such leave was conditional, in that, it was subject to “the fact that the strategic issues such as the risk management committee meet and all plans for it have been executed”.[10] He noted that the Applicant had allegedly delegated his responsibilities to Mr Mlambo, but did not call Mr Mlambo to testify in support of his case.

[16] In respect of this finding, the Arbitrator is accused of “shifting the duty to prove, when he suggested that [the Applicant] should have called [Mr Mlambo] to corroborate [the applicant] story.”

[17] This Court does not agree with the Applicant’s contention in this regard, taking into account that it was common cause that the Applicant had a duty to circulate the aforestated documents and that his leave was conditional. Therefore, the Arbitrator was correct in concluding that the Applicant should have presented the evidence of Mr Mlambo because it was in dispute that he had a right to delegate such duties. Furthermore, the email in paragraph 13 above indicates that the Applicant, despite being on leave was still involved in the arrangement of the scheduled Committee meeting, as Mr Mlambo confirmed that he had communicated with him. Clearly, this supports the Employer’s version that the Applicant had a duty to arrange

that all documents were submitted on time before the date of the meeting and that his leave was conditional.

[18] The LAC in DB Contracting North CC v National Union of Mineworkers &Others,[11] by the learned Sutherland JA (writing for the majority), in distinguishing between onus of proof and burden to produce evidence[12] articulated thus,

“…It has been suggested in the judgment of Ndlovu JA at paragraph 28 that the onus to prove a fair dismissal, which rests on the appellant, has not been met by it because it could not present admissible evidence of an express rejection, and no onus can rest on the union to prove an acceptance. With this approach, I cannot agree. The onus of proof is not shifted. The real issue is the burden to adduce evidence of facts upon which the litigants rely.”

[19] Applying this dictum, I conclude that the Arbitrator cannot be faulted by finding on the balance of probabilities that the Applicant should have called Mr Mlambo as a witness considering that the Employer’s version was that the duty to circulate the notice and supporting pack for the meeting was that of the Applicant. In addition, the email from Mr Mlambo indicates that the Applicant was consulted.

[20] In respect of charge 3, the Employer’s secretary (Ms Thuse) testified in support of this charge. She, among other things, stated that as a result of the failed meeting, the Employer incurred unnecessary expenditure due to money spent on catering, travelling; and accommodation for Ms Deiner. The Arbitrator concluded that since the meeting never materialised, and its objectives were not achieved; therefore, all the expenses became fruitless and wasteful expenditure. This court concludes that this finding by the Arbitrator is consistent with the evidence presented before him, therefore, cannot disturb this conclusion.

Charge 4 and 5

[21] On charge 4, Mr Mwale’s evidence is summarised thus: in terms of section 28(1)(b) of the Mpumalanga Provincial Legislature Service Act and Administration Act No 7 of 2006:

“ No employee shall perform and get himself or herself to perform remunerative work outside his or her employment in the Legislature

without the written permission of the Speaker if such work is lightly to interfere with the employee’s official duties or give rise to the conflict of interest.”[13]

[22] Mr Mwale gave reasons why the Employer charged the Applicant in relation to this section. He said the Employer uses lawyers in executing its constitutional mandate; for example, it engages lawyers services in both litigation and interpretation.[14]

[23] Mr Mwale learnt that the Applicant registered and operated a law firm while working for the Employer. And this was against the Employer’s policy. And it was common cause that the Applicant, through the law firm, represented one client during the tenure of his employment.[15] The Applicant’s version was that he spoke to the Speaker of the Employer about him continuing to operate a law firm. The Speaker

advised him not to seek permission from the Employer because he was only “…representing the people on a pro bono basis for free and just finalise their cases…”. [16] The Arbitrator concluded that the Applicant acted against the policy; therefore, the finding of guilty was reasonable. I have perused the records and find that this finding by the Arbitrator cannot be disturbed because it is in line with the evidence. Further, the Applicant did not dispute being a member of the law firm, and his supposedly limited involved in the running of the law firm is a thinly-veiled defence which cannot stand.

Biaseness

[24] The issue of biasness is a complicated one and often raised in review applications in this court. The rules of natural justice require arbitrators to conduct unbiased arbitrations by giving both parties the same treatment.[17] It is expected that an arbitrator will, sometimes, not sit back as he is required to guide the parties in instances whereby they are not dealing with what he is called upon to decide.[18]An arbitrator is biased when his line of intervention is not aimed at clarifying or guiding parties, if necessary, but to change the other party to the disadvantage of the other.[19]

[25] The Constitutional Court in S v Basson 2005[20] in dealing with bias, during a trial, held thus,

“The state complains effectively of nine interventions by the trial judge as cumulatively suggesting that the judge was either subconsciously

biased or that the conduct gave rise to a reasonable apprehension of bias. These interventions, which will be described below, can broadly be divided into two categories: those that, the state argues, suggest that the judge was hostile towards the state; and secondly those that the state argues show that the judge had prejudged certain issues”.(own emphasis)

And that,

“As far as the first category is concerned, this court should bear in mind that in long criminal trials a judge may at times make remarks that are inappropriate, or display irritation towards Counsel. At times such interventions may arise from attempts at humour. In considering the question of whether such remarks give rise to a reasonable apprehension of bias, a court should not hold a judge to an ideal standard which would be difficult to achieve. Moreover, a court considering a claim of bias must take into account the presumption of impartiality, mentioned by this Court in SARFU.To establish bias, therefore, a complainant would have to show that the remarks were of such a number or quality as to go beyond any suggestion of mere irritation by the judge caused by a long trial, and establish a pattern of conduct sufficient to dislodge the presumption of impartiality and replace it with a reasonable

apprehension of bias.” (Own emphasis)

[26] The Applicant contends that the Arbitrator was biased in that there were instances whereby the first witness for the Employer, Ms Deiner, was asked during cross-examination about email correspondence. The Employer’s Counsel objected, and the Arbitrator ruled that Ms Deiner must not answer such a question. Ms Deiner was also asked a question relating to the practice within the Employer when the Arbitrator allowed the Employer’s Counsel to continuously make “unnecessary objections and at times to answer questions for the third respondent’s witnesses”. The Arbitrator is also accused that at some point, he was not even listening to the Applicant when he was giving evidence and did not treat the union official appropriately.

[27] I have perused the records and noted that both Counsel for the parties, at times disturbed the process by raising objections while witnesses were testifying. For example, at some point, the Applicant’s Counsel said to the arbitrator “And then you keep quiet”[21], and the Arbitrator observed the Applicant’s Counsel pointing a finger to the other Counsel.[22] The transcribed records consist of 640 pages and sadly, a quarter of these records consists of Counsel raising objections. Instead of assisting the Arbitrator in resolving the dispute between the parties.

[28] Due to the nature in which the arbitration was handled, and the long period that it lasted, I understand that the Arbitrator sometimes got agitated by particular incidents and had to intervene to direct parties to deal with the relevant issues. The charges that resulted in the Applicant’s dismissal are simple and straightforward. However, the arbitration lasted for five days. The parties were represented by, and the Applicant is an attorney. They had narrowed down some of the issues.

[29] Sometimes, as indicated in S v Basson supra, the presiding officer will be irritated by how parties are handling the dispute before him. In this matter, it is clear that at the time when evidence was presented, both legal representatives would interject and raise objections, then the Arbitrator made rulings thereof. I did not find any biasedness in this matter. The examples given by the Applicant herein are unfounded and unfair accusations against the Arbitrator. There is nowhere the Arbitrator gave answers on behalf of Employer’s witnesses,as alleged. Therefore, in conclusion, no bias established, considering test in S v Basson.

[30] In respect of the allegations that the Applicant was being victimised following the report that he commissioned, I have considered the charges that he was found guilty of and find no motive or malice, which can be motivated by the report that he made. Under the circumstances, I am not convinced that the Arbitrator committed reviewable irregularity by not taking into account such alleged motive.

[31] The Arbitrator after concluding that the Applicant was guilty of the charges, proceeded to deal with the mitigating and aggravating factors and considered the yardstick set out in Sidumo then found that the dismissal was an appropriate sanction. I, therefore, cannot interfere with the conclusion by the Arbitrator,

taking into account the totality of the matter and evidence that was presented before him.

[32] Also, the remaining grounds of review raised both in the founding and supplementary affidavits are rejected. Therefore, the application to review and set aside the arbitration award is dismissed. The arbitration award is one that a reasonable decision-maker could have made.

Order

[33] Based on the above, the following order is made:

1. The review application is dismissed.

2. No order as to costs.

_____________________

S Mabaso

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: In person

Instructed by:

For the Third Respondent: The State Attorney

[1] CUSA v Tao Ying Metal Industries and Others [2009] 1 BLLR 1 (CC) at para 65.

[2] [2015] 1 BLLR 50 (LAC).

[3] Records, p 409 to 411

[4] Ibid, p 9.

[5] Ibid, p 411, line 15-24, the Applicant confirmed this version.

[6] Court emphasis.

[7] Records, p 63 and 64.

[8] Ibid, p 9 and 10 . Bundle “B”, p 32.

[9] Ibid, p 75, see also p 275 -285.

[10] Arbitration award, p 24, par 80.

[11] (2015) 36 ILJ. 2773 (LAC).

[12] Ibid, par 75.

[13] Records, p 208.

[14] Ibid, p 205

[15] Ibid, p 207-

[16] Ibid, page 582

[17] Satani v Department of Education Western Cape (CA10/15) [2016] ZALAC 95 (13 June 2016).

[18] Ibid.

[19] Raswiswi v CCMA (2011) 32 ILJ 2186 (LC), para 18

[20] (12) BCLR 1192 (CC), para 39, see also Mbana v Shepstone & Wylie 2015 6 BCLR 693 (CC).

[21] Ibid, p 516.

[22] Ibid, 543