Michaels v The Commission for Conciliation, Mediation and Arbitration and Others (C487/2016) [2022] ZALCCT 28 (6 June 2022)

THE LABOUR COURT OF SOUTH AFRICA,

HELD AT CAPE TOWN

Case: C487/2016

Not reportable

In the matter between:

LELIEZA MICHEALS Applicant

And

THE COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION First Respondent

HANELI BENDEMAN (N.O) Second Respondent

KISHUGU GROUP (PTY) LTD Third Respondent

Date of Set Down: 26 May 2021

Date of Judgment: 6 June 2021

Summary: (Review – default arbitration award – Arbitrator reaching one outcome that a reasonable arbitrator could have reached – Award not reviewable)

JUDGMENT

LAGRANGE J

[1] The applicant, Ms L Michaels (‘Michaels’) has applied to review and set aside an arbitration award in which the arbitrator found that her dismissal by the third respondent, originally cited as

‘Working on Fire/Kishugu’ (‘Kishugu’) was substantively and procedurally fair. The application was first

enrolled on 16 October 2018. On that occasion it was removed from the roll and Michaels was granted leave to file an application to condone the late filing of her review application. From the documents it appears that the citation of the third respondent is somewhat imprecise and this has been corrected in the judgment.

[2] The arbitration award was issued on 11 April 2016 and the review application was filed on the 31 August 2016. The review application should have been filed six weeks after the award was issued by 23 May 2016. Consequently, there was a considerable delay. The condonation application was eventually filed more than a month after the court

granted leave for her to do so.

[3] The review hearing was conducted via Zoom in view of the prevailing Covid pandemic. Neither party filed heads of argument.

The condonation application

[4] The applicant attributed her delay to initially and mistakenly pursuing a rescission application and then having to obtain confirmation that her legal insurer, Legalwise, would fund the review. The explanation for the significant delay is patchy and incomplete. As such, the full extent of the delay is poorly explained. It is particularly puzzling that her attorneys of record at the time did not foresee the need to file a condonation application as they ought to have realised it was launched out of time.

[5] Although Kishugu questions the adequacy of the explanation for the delay, its principal objection to granting condonation concerns the prospects of success in the review application, which it claims are

poor.

[6] I am satisfied that the delays in filing the review application were mainly due to factors beyond Michaels’s control and were not significant. In relation to the unacceptably late delay in filing the

condonation application, the fault for that should be laid squarely at the door of her attorneys of record at the time. Even though the prospects of success are not good, in the interests of justice, and given that Michaels’s attorneys withdrew as attorneys of record and she represented herself, I am satisfied that condonation ought to be granted and the merits dealt with fully. Accordingly, condonation for the late filing of the review application and the condonation application is condoned.

The arbitration hearing and the award

[7] The employer did not attend the arbitration hearing and the arbitrator proceeded to hear Michaels’s evidence together with the documentation relating to her dismissal which she produced. It is

apparent that the arbitrator tried to contact the employer and established that it had received notice of the hearing. In the circumstances she proceeded in the employer’s absence. As a result of its failure to present a case at the arbitration, the

employer has to argue its case on the strength of what was before the arbitrator.

[8] I do not intend to set out the award in detail but just to highlight the arbitrator’s main findings. Although Michaels had referred the matter as a constructive dismissal, the arbitrator found that she was dismissed for misconduct. The arbitrator considered the test for determining the substantive fairness of a dismissal for misconduct. She concluded that there was a rule in the workplace that it was necessary to obtain the relevant supervisors permission to leave work and she had not done so. On 13 and 21 January 2016 Michaels had simply told the site manager that she was going to Riversdale and the shop respectively. Further, the arbitrator decided that Michaels had refused to ask permission from her supervisor Mr Van der Merwe and questioned his authority. The arbitrator found that Michaels had several other disciplinary warnings on her file.

[9] The arbitrator also concluded that Michaels had been given a hearing and had been given written feedback why her internal appeal application had failed.

[10] The arbitrator then concluded that Michaels’s dismissal did not involve any procedural or substantive unfairness.

Grounds of review

[11] Michaels’s grounds of review were set out in the founding affidavit prepared by her attorneys. No further grounds were advanced in the supplementary affidavit.

[12] In summary, the grounds of review raised were that:

12.1 The arbitrator committed misconduct by failing to appreciate that it was the employer who had the onus of proving the fairness of her dismissal, yet it was not present at the arbitration hearing.

12.2 In the absence of such evidence from the employer, Michaels was entitled to an award in her favour, and the arbitrator’s failure to do so was indicative of bias against Michaels.

[13] In the course of the hearing of the review application Michaels also claimed that there were other issues the arbitrator failed to take account of, namely:

13.1 Van der Merwe’s disrespect for the employees;

13.2 the fact that the issue she had to address with Mr. Voss was a pressing personal one affecting her safety and family responsibilities;

13.3 she was treated selectively for being absent without permission.

[14] Michaels also referred to a case of theft she had referred to Mr Voss in December 2015, but this was not something which had been mentioned in the arbitration hearing.

Merits of the review application

[15] Although an arbitrator is not required to provide anything more than brief reasons for their decision, in this instance the arbitrator could have gone into more detail. Nonetheless, the question the court has to consider when the challenge to an award relates to the arbitrator’s reasoning on the evidence before them, is whether no reasonable arbitrator could have come to the same conclusion as the arbitrator who heard the case, irrespective of how that arbitrator reasoned the award[1].

[16] Because it is an evaluation of the conclusions reached on the evidence before the arbitrator, no new evidence can be introduced in the review application. An applicant in review proceedings challenging an award on the basis of the arbitrator’s assessment of the evidence must show that any error made by the arbitrator was such an important one that the arbitrator could not have reached the outcome they did if they had not made that mistake. The court considering the review application must consider the totality of the evidence before the arbitrator in assessing whether any error made by the arbitrator was sufficient to justify setting aside the award[2].

[17] In summary, what was before the arbitrator was that:

17.1 Michaels was employed as a structural firefighter on 27 October 2014 and was dismissed on 26 February 2016.

17.2 Michaels was dismissed after being found guilty of leaving the workplace without permission on 13 and 21 January 2016, which amounted to a failure to carry out a reasonable and lawful instruction.

17.3 Michaels’ direct supervisor was Mr R van der Merwe based in Riversdal.

17.4 Michaels testified her supervisor at the Heidelberg depot was Mr F Bayman, another firefighter and her shift leader.

17.5 On 13 January 2016, Michaels left the workplace to speak to a Mr Voss, the head of Hessequa Municipality Protection services, about very offensive personal sms messages she was receiving from a female traffic officer. Michaels said she was away for barely half an hour.

17.6 Subsequently, Michaels laid a charge of crimen iniuria against the individual and the messages had stopped.

17.7 Michaels had raised this problem previously with van der Merwe but he had refused to do anything about it, which is why she did not ask for his permission to leave the workplace to see Voss. Her testimony was that van der Merwe was on friendly terms with the traffic officer in question.

17.8 On 21 January, she left the workplace to buy airtime and told Bayman that she was going.

17.9 She claimed that it was normal for her and her colleagues to leave the workplace to go to the shops and often the senior staff would ask them jokingly to bring food for them too.

17.10 Michaels claimed that other colleagues were not singled out for leaving the workplace without permission in similar circumstances.

17.11 Michaels testified that she had received two warnings previously for precisely the same reasons.

17.12 Michaels gave evidence in the form of a written statement that van der Merwe was disrespectful towards her and her colleagues when he gave them instructions and subjected them to punitive training drills.

17.13 The written appeal outcome found that in terms of the employer’s structure, van der Merwe was her immediate supervisor responsible for approving her movements. The other senior persons mentioned in her appeal were not direct supervisors but senior municipal officials who were not responsible for day-to-day operations of the fire service at the municipality. It rejected her claim that van der Merwe had indicated that he wanted her ‘out’ during the disciplinary inquiry, but that he had testified that the trust relationship had been broken by her actions. The appeal findings also noted that she had several warnings for other transformations which were still valid.

Evaluation

[18] Michaels and her attorneys were clearly under the impression that, in the absence of any evidence being provided by the employer, she ought to have succeed by default. That is an understandable misconception for a layperson to have made. However, an arbitrator must still be satisfied that they have enough evidence before them to conclude that a dismissal took place and that, on a balance of probability, it was either or both procedurally and substantively unfair. If no evidence is presented at an arbitration hearing, there is no basis for the arbitrator to make any finding about the existence of a dismissal or its fairness. Even if an employer presents no evidence, the employee must at least provide enough evidence for the arbitrator to conclude on what the employee has testified to, that a plausible case has been made out that the dismissal was unfair. Simply put, the arbitrator must decide the matter on the evidence placed before them in the arbitration hearing. Nonetheless, the fundamental question raised by the review remains, namely could no reasonable arbitrator have reached the same conclusion as the arbitrator on what was placed before her by the employee alone?

[19] Even on the evidence presented by Michaels, the arbitrator was satisfied that her dismissal was procedurally and substantively fair. In arriving at this conclusion, the arbitrator correctly identified the requirements of the tests for fair dismissal for misconduct and applied those to the evidence Michaels had provided.

[20] As mentioned above, the central question for the court to decide is if no reasonable arbitrator could have come to the same conclusion on that evidence. The fact that another arbitrator or even the court might have taken a different view of the evidence and found in favour of Michaels, is not enough to set aside the award. The court must be satisfied that the arbitrator’s findings simply cannot be a plausible interpretation of the evidence, considered in its totality.

[21] On what was before the arbitrator, there was no dispute that it was a formal requirement to obtain permission to leave the workplace. It was also reasonable to conclude that the person who had the authority to give such permission was van der Merwe and that Michaels failed to get permission from him on both occasions in January, but simply announced that she was leaving the workplace to a more senior employee. Although she argued at the arbitration hearing that the previous warnings she had been issued with related to her physical fitness, the evidence she gave to the arbitrator was to the effect that she had two previous warnings for the same conduct of leaving the workplace without permission.

[22] There was also evidence that on the first occasion in January, Michaels might have had a bona fide reason for not seeking van der Merwe’s permission to see Voss because he had done nothing about her complaint and because her evidence that he was friendly with the person who was sending the offensive sms’s to Michaels, was not contested. Of course that does not necessarily mean she ought not to have obtained permission from the next most senior person, at least.

[23] On what was available to the arbitrator, it cannot be said that she was unjustified in concluding that Michaels was guilty and was aware of the requirement to obtain permission from van der Merwe. There was also evidence that she had been issued with more than one prior warning for the same misconduct and was well aware of the rule.

[24] On the other hand, there was Michaels’ evidence that, despite the rule, other staff were not disciplined for leaving the workplace to go to the shops without obtaining formal permission. On the evidence, one plausible inference is that warnings were selectively issued to her in circumstances where other firefighters were not given warnings, provided more senior staff at the premises were aware they were going out for that purpose. It would not necessarily be unreasonable for an arbitrator to conclude that disciplinary action would normally not have been taken against an employee in the circumstances of Michaels’ absence on 21 January 2016. But it would equally not be unreasonable for an arbitrator to conclude that since Michaels’ had two previous warnings for this and there was no evidence that she had even appealed against them, that her evidence that nobody was disciplined for similar instances is doubtful. If those warnings had been so selective, it would it be

likely, especially given Michaels’ forthright manner, that she would have not challenged them on the basis she was the only person being issued with them?

[25] An arbitrator adopting that interpretation would then have to consider if the employer was unfair in treating the two instances in January as warranting a dismissal.

[26] I am satisfied a reasonable arbitrator could have concluded that there was a rule requiring employees to obtain permission from van der Merwe when leaving the workplace, that it was not inconsistently applied and Michaels already had two prior written warnings for the same misconduct.

[27] Would such an arbitrator necessarily still have decided that Michaels’ dismissal was not an appropriate one? It is perfectly reasonable to have held that at the very least she should have sought permission from one of the other two senior personnel whom she understood to have been on the same level as van der Merwe, namely Mr P Rossouw or Mr R Witbooi. She never explained why that was not a realistic alternative. If it was not unreasonable to conclude that short trips to the shops without permission could result in warnings being issued, then it would not be unreasonable to find that it was

not enough for Michaels simply to have informed her shift leader she was going to the shops. Consequently, it would not be

unreasonable to find that both occasions justified disciplinary action and in the light of the previous warnings, Michaels’

dismissal was not substantively unfair.

[28] It is important to note, that another reasonable arbitrator might have reached a different outcome, but it cannot be said that the arbitrator in this case reached a conclusion that no reasonable arbitrator could have done on the evidence, even though it was a default judgment based on the employee’s evidence alone.

[29] In the circumstances, even though the late filing of the application is condoned the application must be dismissed.

Order

[1] The late filing of the review application and the delay in filing the condonation application for the late filing of the review application are condoned.

[2] The review application is dismissed.

[3] The citation of the respondent in the arbitration award “Working

on Fire” is amended to read “Kishugu Group (Pty) Ltd”.

[4] No order is made as to costs.

Lagrange J

Judge of the Labour Court of South Africa

Appearances/Representatives

For the Applicant:

In

person

For the Third Respondent

J L Basson instructed by Du Toit,

Smuts & Partners

[1] Sidumo & another v Rustenburg Platinum Mines Ltd & others 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC) at para [110] viz, 'Is the decision reached by the arbitrator one that a reasonable decision maker could not reach?'

[2] Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others (2014) 35 ILJ 943 (LAC) at para [18].