Mogane v General Public Service Sectoral Bargaining Council and Others (JR 1731/2020) [2023] ZALCJHB 94 (20 April 2023)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1731/2020

In the matter between:

MAURICE CHARLES MOGANE

Applicant

and

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL

First Respondent

DOROTHY KHOSA N.O Second

Respondent

HEAD OF DEPARTMENT GAUTENG

ROADS AND TRANSPORT

Third Respondent

Heard: 29 November 2022

Delivered: 20 April 2023

This judgment was handed down electronically by consent of the parties and by circulation to them via email. The date for hand-down is deemed to be 20 April 2023.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant seeks to review and set aside an arbitration award dated 27 October 2020 and issued under case number GPBC863-2019 wherein the Second Respondent (arbitrator) found that the Applicant’s

dismissal was substantively fair and his case was dismissed.

[2] The Third Respondent (Respondent or Department) opposed the application for review. The Respondent filed an application for condonation for the late filing of its answering affidavit. I have considered the merits of the application for condonation and applying the applicable principles, I am satisfied that a proper case has been

made out to condone the late filing of the answering affidavit. The Applicant had filed a replying affidavit and as all the papers are before Court, I intend to deal with the merits of this application for review.

The evidence adduced

[3] The Applicant was employed by the Respondent on 1 August 1998. He was dismissed in April 2019 after three charges of misconduct were levelled against him and he was found guilty in a disciplinary process. At the time of his dismissal, the Applicant held the position of ‘control engineering technician’.

[4] The Applicant subsequently referred an unfair dismissal dispute to the First Respondent (GPSSBC) and he challenged only the substantive fairness of his dismissal. An arbitration award was issued on 27

October 2020, which is the subject of this review application.

[5] In order to assess the arbitrator’s findings and the grounds for review raised by the Applicant, it is necessary to consider the evidence adduced at the arbitration proceedings, as well as the

charges that the Applicant was found guilty of and dismissed for. The charges were as follows:

‘Charge 1:

Between January and February 2018 you sent false information to clients indicating that it is difficult to obtain files from registry, files cannot be retrieved, registry office has closed and that ‘effectively we have been shut down’. By so doing, you contravened the departmental communications policy and conveyed false information to third parties which had an effect of bringing the Department’s name into disrepute.

Charge 2:

You have committed gross misconduct in that on or about 23 February 2018 you were instructed via email by the Chief Director: Transport Policy and Planning (Mr Freeman Masuku) to stop sending the messages referred to in charge 1, however you disobeyed that instruction as you continued to send this message to numerous clients.

Charge 3:

On or about 27 February 2018 you sent an email conveying false information to one Mr Neil Stone. You indicated (among other things) that management was actively blocking that you get new personnel, that the Department was not interested in building capacity to deliver and that they want to destroy the sub-unit [sic]. By doing so, you put the Department’s name into disrepute.’

The Respondent’s case

[6] It is evident from the transcribed record that the arbitrator narrowed the issues at the commencement of the arbitration proceedings and that the only issue to be decided was the substantive fairness of the Applicant’s dismissal and that the issues to be decided were whether there was a rule, whether the Applicant was aware of the rule, whether the rule was valid and reasonable and whether it was applied consistently.

[7] The Respondent’s first witness, Ms Koalepe, testified that she is employed as the Department’s records manager and her duty is to ensure that there is effective records management, from the

creation of the records, the retrieval and storage thereof, up to the disposal of the record. She knew the Applicant, as the registry also took care of the records of the Applicant’s unit.

[8] In respect of charge 1, Ms Koalepe referred to an email dated 25 January 2018, sent by the Applicant to NB Projects and copied to a number of recipients. The subject of the email is ‘new telecommunication mast’ and the Applicant stated inter alia that “the matter has been attended to but unfortunately at the moment our Registry has packed files in boxes apparently for digitisation and it is difficult to obtain files, carry out our daily operations and most applications have not been filed as yet for over 6 weeks now. Today, 25 January 2018, our Registry Office at 4[...] S[...] street, Johannesburg, has been closed down until further

notice. As result applications cannot be lodged or files retrieved to be attended to”. Ms Koalepe testified that during January 2018, the registry was not closed, they were able to retrieve files, there was no instruction to close the registry and the information shared with NB Projects was incorrect.

[9] Ms Koalepe explained that in December 2017, the registry was given a project to digitise all the records and the project commenced in January 2018. This was because the Department was relocating to a new building at 4[...] C[...] Street and at the time of the move, the place to store the records was not yet finalised and the registry had remained behind in the old building. The management decided that the records must be digitised so that the employees in the new building would be able to access the documents, whilst the registry had remained at the old premises. In January 2018. they started with phase one of the project, which entailed the removal of the files from the hangers where they were stored, packing them in boxes and preparing them for scanning. The registry was situated on the 6th floor and the scanning was to happen on the 7th floor.

[10] During this period, the registry was still working and there was a process in place to access and retrieve files. An inventory for the registry was created by the 28 staff members involved in the moving of the files and there was never a shutdown of the registry.

[11] Ms Koalepe referred to another email from the Applicant, dated 25 January 2018, with the subject ‘Comments on applications: Section 100 and section 99 ACSA Park Township’, which was addressed to a number of recipients. The Applicant stated inter alia that “the matter has been attended to but unfortunately at the moment our Registry has packed files in boxes apparently for digitisation and it is difficult to obtain files, carry out our daily operations and most applications have not been filed as yet for over 6 weeks now. Today, 25 January 2018, our Registry Office at 4[...] S[...] street, Johannesburg, has been closed down until further notice. As result applications cannot be lodged or files retrieved to be attended to”. On the same date, a similar email was sent to Mr Brian Gardner and copied to a number of other recipients.

[12] Ms Koalepe testified that if the registry had closed down and if files could not be retrieved, there were protocols to be followed if such a decision was taken and there should have been an announcement from the responsible officials. She was never informed that the registry had closed, but instead, during January and February 2018 they were able to obtain files and there was no closing of the registry. The registry was finally moved to the new premises around September 2018.

[13] The transcribed record shows that Ms Koalepe, to an extent, was asked questions in cross-examination that did not assist the Applicant’s case, that the questions were poorly formulated and difficult to understand and as a result, she struggled to respond to the questions posed. In other instances, when difficult but proper and valid questions were posed to Ms Koalepe, she merely refused to answer the question or she reverted to a defence that she was only there to answer questions relating to the charges and the events of January and February 2018.

[14] In cross-examination, Ms Koalepe was referred to the Department’s communication policy and was asked if the Applicant had followed the correct procedure, as set out in the policy, in his communication with the stakeholders he had dealt with and internally with management and other employees. According to Ms Koalepe, the Applicant did not follow departmental policies in his communication.

[15] Ms Koalepe insisted that there was no difficulty in getting or retrieving files during the period of January and February 2018. She explained that the files that could not be retrieved were not at the registry and it was not an issue of retrieving the file. An inventory was compiled and the registry had a list of the files and the box numbers they were in, files were retrievable through the inventory and the system worked effectively.

[16] Ms Koalepe was referred to an email, dated 24 January 2018, from Mr Masuku, emanating from an impromptu meeting held with several officials, including Ms Koalepe and the Applicant. In the email, Mr Masuku recorded several challenges around the digitisation process of records at the registry, inter alia that the process of packing files into boxes presented challenges in retrieving the files if needed, arranging boxes in the space provided presented challenges when files are needed, the time taken to retrieve files had increased significantly and caused a backlog and the manner in which the files were handled and organised in preparation for scanning, was concerning. It was put to Ms Koalepe that the chief director, Mr Masuku, acknowledged that there were difficulties in retrieving and accessing files. The files were not accessible and there was a problem with the filing system, which is contradictory to Ms Koalepe’s evidence that the files were easily accessible at all times.

[17] Ms Koalepe was referred to an email dated 14 December 2017, from the Applicant to Mr Keith Bingle and copied to others, including Ms Koalepe, wherein the Applicant had raised his concerns about the fact that the registry had been packing away files in boxes, which interfered with his unit’s workflow and operations. He inter alia raised issues regarding the fact that the registry’s normal operations had been slowed down or stopped altogether, with the effect that development applications could not be attended to, which interfered with their operations and denied the members of the public their right to constitutionally mandated services which the public service has to provide.

[18] The Applicant’s case was that there was a problem with accessing files and this was raised in December 2017, when the Applicant alerted the management about the difficulties he had experienced and warned about the consequences of delays in attending to development applications. Ms Koalepe was in charge of the registry in 2017 and she could not shy away from responding to issues and questions simply because she was there to respond to charge 1 and nothing else.

[19] Ms Koalepe was referred to the minutes of the steering committee of 30 January 2018 wherein it was recorded that the “current situation at registry, that is removing of files from their shelves and packing them away in boxes and stoppage of normal day-to-day operations has resulted in a delay of at least between 6 and 18 months on current and incoming work. Effectively sub-directorate:

development facilitation and all units using the filing system have been shut down”. The issue was resolved as follows: “operation of registry office will gradually return to normal and continue to serve the public/applicants on the 6th floor. Incoming and new applications will continue to be filed and forwarded to sub-directorate development facilitation and the files retrieved from the packed boxes will be returned to the shelves”. The steering committee was the highest decision-making body for the records scanning process.

[20] Ms Koalepe was referred to a notice of 25 January 2018 which read as follows: “PLEASE NOTE REGISTRY SERVICES IS [sic] CLOSED NO FILES WILL BE ISSUED UNTIL FURTHER NOTICE”. Ms Koalepe testified that the notice was placed on both entrance doors of the registry, as they were going to have a meeting. The Applicant’s version was that Ms Koalepe’s response was strange as the notice did not mention a meeting or start or end date, but specifically referred to the fact that no files would be issued. Ms Koalepe testified that later in the day on 25 January 2018, the registry was open again.

[21] It is evident from the transcribed record that new evidence was introduced in the re-examination of Ms Koalepe.

[22] The Respondent’s second witness, Mr Ernest Sibeko, testified that he was employed as a registry clerk. He knew the Applicant as they used to work with him in his capacity as control technician on a daily basis.

[23] On 16 January 2018, he sent out an email, with the subject ‘New township files/applications’ which was addressed to the registry officials as well as to those from the transport planning unit, which the Applicant was part of. The email indicated that there were new files opened at the registry which were ready to be collected. The new files were for external development or land applications received and to be collected by the relevant unit so that the external applicant or client could be assisted. The Applicant’s unit was transport planning and they were responsible for assessing and analysing the applications for development.

[24] Mr Sibeko testified that the registry was functioning during January 2018 and they were able to retrieve files. The files were placed in boxes to prepare for the move to the new premises, but they were still able to retrieve the files from the boxes.

[25] On 7 February 2018, the Applicant sent an email to m[...], an external client, regarding Tsakane Extension 12, wherein he stated

that the client’s land development application may be delayed by at least 6 to 18 months, in addition to the normal response times. He stated that:

‘The Department’s registry (where applications are lodged for our attention) has packed files away in boxes apparently for digitisation and currently it is difficult to obtain files to carry out our daily operation and most applications have not been files as yet for over 6 weeks now [sic]. Effectively, we have been shut down.’

[26] Mr Sibeko responded to the Applicant on the same date to inform him that the Tsakane extension 12 files were found and given to the messenger. He explained that it was incorrect to state that files could not be retrieved or that there was a shutdown of the operations. This information should not be communicated to clients as it would cause confusion.

[27] In cross-examination, Mr Sibeko explained that it was easier to retrieve the files from the hangers than from the boxes, but they were still able to retrieve them. An inventory was compiled and the boxes were placed in chronological order, which enabled them to locate and retrieve the files. The files could still be retrieved, albeit a bit slower and with more effort required.

[28] The third witness, Mr Ramokhoase, the acting director for transport infrastructure planning and director for traffic engineering, testified that he knew the Applicant as he was a deputy director in the traffic infrastructure planning unit and reported to him.

[29] Mr Ramokhoase testified in respect of charge 3 and he referred to an email, dated 27 February 2018, addressed to Mr Neil Stone and copied to various other recipients. The subject of the email was ‘Current situation at Gauteng Department of Roads and Transport – please assist’. In the email, the Applicant stated that the Department is not interested in building capacity to deliver “hence they killed most units in the roads and transport branches, especially transport planning, traffic engineering, geometrics,

structures, etc I can go on (I am sure that you are aware). We are one of last standing sub-units and they want to destroy that as well. Yes, it does not make sense yet that is the situation”. He explained that management did not actively block the appointment of new personnel and that it would not be in the best interest of the Respondent to destroy the Applicant’s unit. His version was that, on the contrary, and in accordance with the provisions of the Public Service Act[1], the Department was working very hard to build capacity.

[30] Mr Ramokhoase testified that if there were challenges experienced and if assistance or help was required, Mr Stone, who is not an employee of the Department, is not the correct person to raise the issues with as he does not have any authority to assist in internal departmental matters.

[31] The Applicant in the said email also stated that he struggled to get the current technical personnel employed as “management (in particular Ms Harker, Mr Killian, Mr Masuku and other managers) was actively blocking that and they are making sure we do not get new personnel as we speak”. Ms Harker is the Deputy Director General (DDG) corporate services, Mr Killian was the DDG for the roads branch and Mr Masuku was the chief director: transport planning. They are all members of the Department’s senior management and the implications of sending an email, such as this one about senior management, to an external individual, would be to create the impression that the Department is not interested or willing to implement or execute its legislative mandate. The Department must, by law, deal with external clients on matters of development as the clients must seek permission from the Department before they embark on any form of development. Sending out messages which state that the Department is actively destroying the unit, means that the clients don’t have any recourse to do any development because they are prohibited by law to do any development without permission from the Department and that the Department is actively flouting the law by not providing the service it is required to render. The implications are serious as it will create chaos and disorder when it comes to infrastructure development. It is even more concerning that senior management of the Department is implicated in that “they [are] actively [involved] in breaking the law and bringing down the department. In sowing chaos to the public thereby introducing lawlessness when it comes to infrastructure development laws, policies and regulations”.

[32] Mr Ramokhoase testified that the Applicant did his job, but that he was difficult to work with. It was difficult to reason with him and there were other instances where they had tried to speak to him to stop certain types of behaviour, but the Applicant said ‘no’, which made the relationship difficult. The Applicant was part of middle management and he had staff members reporting to him and that his behaviour did not set a good example for his subordinates. He

antagonised management over a period of time and he cannot be trusted to support and represent management. The Applicant is no longer an asset to the Department as he might undo whatever the Department tried to build up.

[33] In cross-examination, Mr Ramokhoase conceded that there were challenges regarding the appointment of technical staff in the Department, but insisted that those were operational challenges and that there was no active blocking of the recruitment of new personnel. He emphasized that Mr Neil Stone would have been in no position to assist with the Department’s operational challenges.

[34] The Respondent’s last witness was Mr Freeman Masuku, the chief director for transport policy and planning. He knew the Applicant as he was employed in the directorate infrastructure planning, which was one of the directorates that reported to him.

[35] Mr Masuku testified in respect of charge 2 and he referred to an email dated 23 February 2018, which he had sent to the Applicant.

The subject of the email was ‘Information to the public’ and in the email addressed to the Applicant, it was stated that “[c]an you stop immediately sending the message below in red. Furthermore instruct all those working in the section who have been using this template as a signature on emails to remove it”. The email that the Applicant was instructed to stop sending, contained the statement that:

‘The Department’s registry (where applications are lodged for our attention) has packed files away in boxes apparently for digitisation and currently it is difficult to obtain files to carry out our daily operation and most applications have not been files as yet for over 6 weeks now. Effectively, we have been shut down.’

[36] Mr Masuku explained that he had instructed the Applicant to stop sending the email as it communicated false information and it was damaging to the Department’s reputation. The information the Applicant communicated with external parties should have been raised within the Department so as not to cause mayhem in the industry. It was false information to state that “we have been shut down”. The unit where the Applicant was employed, was critical and there was no way that the management would actively destroy it.

[37] Mr Masuku referred to three emails, dated 27 February 2018, sent by the Applicant to one Renette at NB Projects, to one Danie van der Merwe from Urban Dynamics and to Mr Neil Stone, and in the said emails the same wording as alluded to supra appeared. Mr Masuku testified that the Applicant continued to send emails, containing the same wording, that he was specifically instructed to stop sending and evidently, he did not adhere to the instruction he was given.

[38] The Applicant also copied Mr Masuku in the emails he sent on 27 February 2018 which showed a total disregard for the instruction that was given to him and it was the last straw in a series of behaviour and it was not the first time “to have this kind of insubordination”.

[39] The emails created chaos in the industry and Mr Masuku explained that he had received numerous messages and phone calls from members in the industry and senior managers in the Department asking him about the messages they have seen from the Applicant’s communication and he was asked to handle the situation. The effect of the information communicated by the Applicant was that it conveyed false information, it portrayed the Department as one which is not functional, it created a negative view of the administration and it created the impression that the registry was closed, which was not the case as it was still operational. Furthermore, the Department has communication channels and if there really was a shutdown, it would have been communicated via the correct channels. Even as a chief director, Mr Masuku was not allowed to communicate certain things to the public as it has to be communicated through the right channels.

[40] Mr Masuku testified that the Applicant had a tendency of creating havoc and of being insubordinate, but that he is a good worker. No other unit in the Department was prepared to work with the Applicant.

[41] In cross-examination, Mr Masuku testified that the Applicant was allowed to communicate directly with his clients but only in respect of their applications, the technical part of their applications and the Department’s decision taken in terms of the application. The Applicant was not allowed to communicate the information as he did in the emails to clients.

[42] It was put to him that in the meeting of 26 January 2018, he told the Applicant to continue communicating with his clients regarding their applications, which was contrary to the instruction of 23 February 2018. Mr Masuku testified that he would always tell the Applicant to communicate with clients, but the issue was the content of the messages he had written rather than the fact that he was communicating with clients. The Applicant could communicate with clients to inform them about the status of their application etcetera but the messages sent by the Applicant were wrong and outside the scope of authorised communication and he was instructed not to send them anymore.

[43] A meeting was held on 26 January 2018 to resolve the operational issues and there were indeed attempts made to resolve the issues and there were meetings held around operational issues.

The Applicant’s case

[44] The Applicant testified that he had followed all the relevant guidelines when he communicated internally and externally. He raised all the issues internally with management and he later approached the Premier’s office, still within the structures of government, because the Department was “completely failing”. He tried to resolve the issues internally and some of the issues were resolved, but the issue with the files remained unresolved until his dismissal.

[45] He explained that it was difficult for his unit to carry out their normal operations when the files were packed into boxes. The registry would do new files, but that was not helping the process. The registry staff packed the files into boxes, which also hampered the performance of their normal duties, those boxes were put into different rooms and locked up.

[46] In cross-examination, the Applicant was asked whether, when files were put in boxes and the work did not continue as normal, it indicated that there was a closure. The Applicant responded that “in my section you have to understand what you do… the kind of work that you do, if you do that, that taking files, putting them in boxes without communicating, you know how you going to access the files because there was no communication at all so that for me, it was a shutdown of the unit”.

[47] The Applicant insisted that it was part of his duties to liaise with the public, to attend to inquiries and to give advice. In respect of charge 1, the Applicant testified that he was never trained on the Department’s communication policy or how to liaise with clients, notwithstanding the fact that he was in the unit for a period of 14 years.

[48] In cross-examination, the Applicant agreed that in the 20 years that he had been employed by the Department, the nature of his job always required him to communicate. He insisted that he was not trained on how to communicate but conceded that he never requested training on communication or indicated his lack of communication skills. It was put to him that he was in the Department for 20 years and that his attempt to shift the blame to the Department for not training him could not hold water. It was further put to him that he communicated with management internally and when he was not assisted, he communicated with the Premier’s office, which was indicative of the fact that he was able to communicate and that he was well aware of the protocols and procedures to be followed. The Applicant agreed.

[49] After the Applicant agreed that he was aware of the procedures and protocol to be followed when he was dissatisfied or had concerns, he was referred to the email he had sent to Mr Neil Stone, an external client on 27 February 2018, and was asked what the intention was of sharing the information as per the email, and specifically regarding other senior managers. The Applicant responded that it was a response out of frustration with the system and the managers’ way of handling the issues and not responding to the issues he had raised. It was put to him that when the email was sent, no protocol was followed and that the intention was to cause chaos and disruption and to bring the Department’s name into disrepute.

[50] The Applicant testified that when Mr Masuku instructed him on 23 February 2018 to stop sending the emails, he responded by asking Mr Masuku ‘why?’ and his version was that he had expected Mr Masuku “to say we have resolved the issues, there is no need for you to send these things anymore, but I never got that answer and he never even gave advice on how to better deal with applicants when they inquire on their applications”.

[51] The Applicant described the characters of Mr Masuku and Mr Ramokhoase as “very irresponsible and dishonest”. He was of the view that he could return to work as there are only three people in the province who was qualified to do the work he was doing and he explained that “one of them is the former deputy director of that unit, Mr Emett, I’m the second one in the province and the third one is my wife, and there were others but they don’t have the experience that we have. So it goes without saying, because when I do my work, the work that I’m doing on a daily basis as I say, because your Mr Ramokhoase and Mr Masuku, they have no experience in the work. So my work doesn’t go through their hands…”

[52] It is evident from the Applicant’s testimony that he had experienced a lot of frustration with processes within the Department and that he had his own views or opinions as to how matters should have been handled or how issues should have been addressed, which did not correspond with the manner in which the issues were indeed handled and addressed. It is further evident that in his testimony, he lost sight of what the charges he had faced and was dismissed for were. For instance, the Applicant insisted that it was part of his duties to liaise with the public, to attend to inquiries and to give advice. This is not disputed by the Department and that is also not the basis of the charge. The issue was the content of his communication, rather than the fact that he had communicated with relevant stakeholders. The information the Applicant shared with stakeholders in the emails he had sent, does not fall within the ambit of what he was expected to communicate with them. The Applicant further attempted to put up a lame excuse that he was not trained on how to communicate – the Applicant was in the Department for a period of 20 years and in the unit for 14 years, during which period there was no evidence that he had difficulty in communicating and it is inappropriate for a person of his seniority and with his experience and qualifications to put up a defence that he was not trained on how to communicate under circumstances such as these.

[53] The Applicant’s first witness, Ms Moloko Mogane, is employed by the Department as a civil technician. Ms Mogane reported to the Applicant prior to his dismissal. The Applicant is Ms Mogane’s husband. She took over the Applicant’s functions after his dismissal and she testified that there was no chaos in the unit prior to the Applicant’s dismissal. According to Ms Mogane, the Applicant followed the procedures set out in the communication policy in his communication and interaction with managers and external clients.

[54] In cross-examination, Ms Mogane was referred to the instruction given to the Applicant on 23 February 2018 to stop sending the message and the subsequent emails he had sent on 27 February 2018 and she conceded that the Applicant did not stop sending the message, as he was instructed to do. She further conceded that the registry was never shut down.

[55] It is evident from the questions posed to Ms Mogane in examination in chief that she was referred to documents and asked about her views, which she expressed. Her evidence was of little value to the Applicant’s case as her views and opinions did not carry much weight in deciding the fairness of the Applicant’s dismissal. Ms Mogane testified about how difficult it was to work when the files were packed in boxes, which evidence constituted no more than background music and had no bearing in the charges the Applicant was dismissed for.

[56] It is further evident that Mr Shabangu, the Applicant’s representative, was of the view that the Department’s cross-examination had to be limited to the issues only asked or canvassed during evidence in chief and he attempted to ask questions in re-examination about issues not raised in cross-examination. It is a patently incorrect understanding of the law of evidence.

[57] Mr Enock Mathe, a senior administration officer in the Department’s sub-directorate: development facilitation, testified that his duties included inter alia the processing of land use applications and attending to inquiries from applicants as well as internally. He testified in the main about the notice that was put up on the registry door on 25 January 2018 to the effect that the registry was closed until further notice. He explained that he asked about the notice and the registry staff told him that they were busy with the digitisation and scanning of the files. After he complained about this to the Applicant, a meeting was held on 26 January 2018. At the meeting, Mr Masuku apologised for the inconvenience that the registry was causing them and it was suggested that a committee be formed to

address the issues.

[58] Mr Mathe testified about the email that was sent by Mr Sibeko on 16 January 2018 and the transcribed record shows that his evidence or version was not put to Mr Sibeko in cross-examination when he had testified and the Applicant’s version in this regard, had not been put to the Respondent’s witness(es) and they were not afforded an opportunity to respond to the version.

[59] After a witness has given his or her evidence in chief, the other party is given the opportunity to cross-examine the witness. The intended purpose of cross-examination is inter alia to reveal weaknesses in the evidence adduced, to challenge the truth or accuracy of the witness’s version, to bring to light facts reinforcing the cross-examiner’s case, to elicit favourable facts, to place a defence on record and to put the version of the cross-examining party.

[60] A party has a duty to cross-examine on aspects which he or she disputes. The rationale of the duty to cross-examine is that the witness should be cross-examined to afford him or her an opportunity of answering points supposedly unfavourable to him.

[61] The failure to cross-examine a witness about an aspect of his or her evidence may have the result that the evidence may not be called into question later. The cross-examiner who disputes what the witness says has a duty to give the witness an opportunity to explain his or her evidence, to qualify it or to reveal its basis. Failure to do so has been dubbed extremely unfair and improper.[2] Apart from the injustice to the witness, failure to cross-examine may indicate acceptance, comparable with an admission by silence.[3] From this point of view, such evidence will carry more weight than evidence disputed by means of cross-examination and the failure to cross-examine, will be a factor increasing evidential value.[4]

[62] A failure to cross-examine a witness on any aspect, is generally considered to be an indication that the party who had the opportunity to cross-examine, did not wish to dispute the version or aspects of the version of the particular witness who was available for

cross-examination.[5] A cross-examiner is duty bound to put his or her defence or version on each and every aspect he or she wishes to place in issue, to the witness.

[63] The testimony of Mr Mathe related to a number of issues that were irrelevant to the charges and was of limited assistance to the issues the arbitrator had to decide.

[64] The Applicant’s last witness was Ms Sandiswa Digwamaje, a senior administration officer in the Department’s directorate: development facilitation. She testified that they had problems in the unit because of the fact that the registry was packing files into boxes and they could not work as normal. She reported to the Applicant and testified that the unit was running smoothly until they had a problem with the files. She testified about her working relationship with the Applicant and Messrs Ramokhoase and Masuku and she was asked to express her view on some issues, which evidence was either not relevant for the purposes of deciding the fairness of the Applicant’s dismissal or carried no weight.

Analysis of the arbitrator’s findings and the grounds for review

The test on review

[65] I have to deal with the grounds for review within the context of the test this Court must apply in deciding whether the arbitrator's decision is reviewable. The test has been set out in Sidumo and another v Rustenburg Platinum Mines Ltd and others[6] as that whether the decision reached by the commissioner is one that a reasonable decision maker could not reach. The Constitutional Court held that the arbitrator's conclusion must fall within a range of decisions that a reasonable decision maker could make.

[66] The Labour Appeal Court (LAC) in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others[7] affirmed the test to be applied in review proceedings and held that:

‘In short: A reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts

presented at the hearing and came to a conclusion that is reasonable.’

[67] The applicant in a review application is not to take a microscopic view and dissect every finding of the arbitrator, but has to show that holistically, the award is unreasonable or that the arbitrator’s findings led to an unreasonable outcome.

[68] In considering the Applicant’s grounds for review, this Court should not lose sight of the limited scope within which a review application is to be decided.

[69] In Head of the Department of Education v Mofokeng[8] (Mofokeng), the LAC provided the following exposition of the review test:

‘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.’

[70] The review Court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each of those factors and then determine whether a failure by the arbitrator to deal with it is sufficient to set the award aside. This piecemeal approach of dealing with the award is improper as the reviewing Court must consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision maker could make.[9]

[71] It is within the context of this test that I must decide this application for review.

The arbitrator’s findings

[72] The arbitrator had to determine whether the Applicant’s dismissal was substantively fair and she ultimately found that the Respondent discharged the onus to show that his dismissal was indeed fair.

[73] In deciding the issue, the arbitrator referred to the Code of Good Practice[10] and the issues to be decided in determining whether a dismissal for misconduct is unfair. The first issue to be decided was whether a rule existed and the arbitrator recorded that the Applicant was charged for contravening the departmental communication policy by conveying false information to third parties, even after he was instructed not to do so.

[74] The arbitrator considered the evidence and recorded that the Respondent’s witnesses testified that the Applicant had conveyed information that was false because the registry was not closed. There might have been delays in accessing the files as they were in boxes, but the registry was in operation.

[75] The Applicant was instructed not to communicate a specific message, but even after receiving such an instruction, the Applicant did not stop communicating the message to external clients. The arbitrator found that the Applicant acted unreasonably in his refusal to stop communicating the message and she rejected his version that he continued to do so out of frustration. He should have exhausted internal procedures in seeking an appropriate remedy.

[76] The arbitrator held that the workplace is not a democracy and it is an implied term of a contract of employment that an employee has to submit to the authority of the employer, provided that it is exercised lawfully and reasonably. The Applicant’s refusal to obey a lawful and reasonable instruction from his manager amounted to insubordination, for which an employer is entitled to dismiss if the refusal is of a deliberate and serious nature. The Applicant’s stance was clearly that he was not going to stop communicating the message, which position was supported by his witnesses (who used to

be his subordinates) with some indicating that they were doing the same.

[77] The arbitrator found that the Respondent requested the Applicant to stop sending the false information to clients, but the instruction was not accepted and it constituted a wilful and serious refusal to obey a lawful and reasonable instruction. It would be unreasonable to expect the Department to continue a relationship with the Applicant, notwithstanding the fact that his work performance was of a high standard.

[78] The arbitrator found dismissal to be an appropriate sanction as the Applicant’s behaviour had breached his duty of good faith and his actions clashed with the Respondent’s operations.

The grounds for review

[79] Considering the test I have to apply, there is an obvious difficulty with the Applicant’s case in that the Applicant seeks to attack each and every finding of the arbitrator on every piece of evidence. The Applicant has taken a microscopic approach and has dissected and set out every piece of evidence and fact that he believes were either not considered by the arbitrator or incorrectly accepted by her. To illustrate this point: the Applicant submitted that in her summary of the evidence, the arbitrator referred to Mr Keith Bingle as an external client, whereas he was a director in the Department’s

employ.

[80] I already alluded to the exposition of the review test in Mofokeng in relation to errors of facts or issues and the analysis of the question of whether the irregularity or error is material, which 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.

[81] The question this Court must ask on review is whether the way the arbitrator dealt with the evidence, constituted an irregularity or error which was material, whether it impacted on the determination of the question of whether the Applicant’s dismissal was fair and whether it distorted the arbitrator’s ultimate decision.

[82] The incorrect reference to Mr Bingle had no impact on the determination of the fairness of the Applicant’s dismissal and did not distort the ultimate outcome.

[83] Another difficulty is that some of the issues raised do not constitute grounds for review and cannot be considered as such, or are averments that are not at all supported by the transcribed record, such as that the arbitrator assisted the Respondent by becoming a fifth witness. Nothing in the transcribed record supports this averment.

[84] The test on review and the context within which it is to be applied is that the review Court is not required to take into account every factor individually but must consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision maker could make based on the facts placed before him/her.[11]

[85] The LAC has confirmed that to do it differently or to evaluate every factor individually and independently is to defeat the very requirement of section 138 of the Labour Relations Act[12] (LRA) which requires the arbitrator to deal with the substantial merits of the case and to do so expeditiously and fairly.

[86] The ultimate question is whether, holistically viewed, the decision taken by the arbitrator was reasonable based on the evidence placed before her. To consider each piece of evidence separately, will constitute a piecemeal approach which is an approach this Court has to avoid. This Court has to consider the totality of the evidence placed before the arbitrator and cannot embark on a process whereby every minute detail of the arbitration award is assessed and analysed.

[87] The Applicant raised a number of issues as grounds for review and I will deal with the topics covered by the grounds for review.

[88] It is evident from the affidavits filed by the Applicant that he seeks to introduce facts and evidence in his review application which were not placed before the arbitrator. I accept that the Applicant is a layperson, acting without legal assistance, but he has to be aware that this is a review application and that this Court can consider only the facts and evidence placed before the arbitrator and determine whether, based on that, the outcome was reasonable. For instance, in his supplementary affidavit, the Applicant seeks to introduce internal communique, dated 10 June 2020, which was never referred to or testified about during the arbitration proceedings. It is not open to the Applicant to introduce new facts, evidence or documents at the stage of review.

The arbitrator’s dealing with the evidence

[89] The Applicant raised two main grounds for review. The gist of the first ground for review is the way the arbitrator dealt with the evidence - more specifically, how she failed to weigh up and consider all the evidence, failed to undertake a proper analysis of the evidence and failed to apply her mind to the evidence and material facts.

[90] An arbitrator has to determine a dispute fairly and quickly and deal with the substantive merits of the case. The arbitrator is not expected to produce an arbitration award to the standard of a Constitutional Court judgment. Section 138(7)(a) of the LRA requires

an arbitrator to provide ‘brief reasons’, which serves to distinguish awards from judgments of courts. Arbitrators are not expected to provide reasons dealing with each and every aspect of the case[13] but must deal with the substantive merits of the case and the reasons provided must support the conclusion.

[91] The fact that the arbitrator did not deal with every piece of evidence does not mean that she had ignored the evidence or that she had failed to apply her mind to it. The fact that the arbitrator did not deal with every piece of evidence in her analysis, does not per se render the award reviewable. More is required to succeed with an application for review. It has to be emphasized that the review

test to be applied in casu is a stringent and conservative test of reasonableness. The question is whether holistically viewed, the decision taken by the arbitrator was reasonable based on the evidence placed before her.

[92] The reasons in the arbitration award must state the arbitrator’s material findings of fact and the decision must be made on the basis of the evidence.

[93] The Applicant must show that the arbitrator arrived at an unreasonable result. In fact, the Applicant must show that the decision is one that a reasonable decision maker could not make, based on the evidence presented. The test is not whether the arbitrator came to the best decision or a decision acceptable to the Applicant. A review is not an appeal.

Exceeding powers

[94] The second ground for review is that the arbitrator exceeded her powers by inserting her personal views in stating that ‘the workplace is not a democracy’ and by that, implying that the Applicant had no constitutional and labour rights in the workplace context and that he must adhere to instructions that are unlawful, unreasonable, arbitrary and unattainable, as was the case with Mr Masuku’s instruction.

[95] There is no merit in this ground for review and as such, there are two difficulties with this ground for review.

[96] Firstly, there are two broad categories of excess of power – absence of jurisdiction and excess of powers within jurisdiction. The first is where an arbitrator acts in the absence of jurisdiction, that is where the necessary jurisdictional facts are not in existence, such as the existence of an employment relationship or a dismissal. The second category is where an arbitrator, having jurisdiction, exceeds the limits of his/her powers, for example where an arbitrator orders reinstatement of an employee whose dismissal was found only to be procedurally unfair, or grants more than the maximum permissible compensation or decided an issue which the parties have not placed in dispute.[14]

[97] Secondly, it was never the Applicant’s case during the arbitration proceedings that the instruction given by Mr Masuku was ‘unlawful, unreasonable, arbitrary and unattainable’ and this allegation was not put to Mr Masuku in his cross-examination. The arbitrator cannot be expected to make a finding that an instruction was ‘unlawful, unreasonable, arbitrary and unattainable’ if that was not the evidence placed before her. The lawfulness or reasonableness of the instruction was not specifically challenged and Mr Masuku’s evidence that the Applicant was allowed to communicate, but that the issue was with the content of his communication, was not challenged. Be that as it may, these averments do not support the contention that the arbitrator exceeded her powers.

[98] There is no merit in the ground for review relating to the exceeding of the arbitrator’s powers and the Applicant included it as a ground for review for no apparent reason. The mere fact that the arbitrator stated that the workplace is not a democracy, does not constitute the exceeding of powers and certainly does not imply that the Applicant must adhere to ‘unlawful, unreasonable, arbitrary and unattainable’ instructions.

[99] It is evident that in raising this as a ground for review, the Applicant had no consideration or understanding of what would constitute conduct where the arbitrator would in fact exceed her powers.

Conclusion

[100] In Quest Flexible Staffing Solutions (Pty) Ltd (A division of Adcorp Fulfilment Services (Pty) Ltd) v Lebogate,[15] the LAC confirmed the test to be applied on review:

‘[12] The test that 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. The result will, however, be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator.

[13] 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.’

[101] In Bestel v Astral Operations Ltd and others,[16] the LAC considered the limited scope possessed by this Court to review an arbitration award and accepted that an arbitrator’s

finding will be unreasonable if the finding is unsupported by any evidence, if it is based on speculation by the arbitrator, if it is disconnected from the evidence, if it is supported by evidence that is insufficiently reasonable to justify the decision or if it was made in ignorance of evidence that was not contradicted. The LAC held that:

‘…the ultimate principle upon which a review is based is justification for the decision as opposed to it being considered to be correct by the reviewing court; that is whatever this Court might consider to be a better decision is irrelevant to review proceedings as opposed to an appeal. Thus, great care must be taken to ensure that this distinction, however difficult it is to always maintain, is respected.’

[102] Let it be clear: this is an application for review and not an appeal. This is a difference the Applicant had difficulty in understanding when formulating his grounds for review, but it is a difference this Court must maintain. An award will only be set aside on review if both the findings and the result are unreasonable. Even where the arbitrator’s findings or reasoning may be unreasonable, the result could nevertheless be capable of justification, and therefore be reasonable and not be interfered with on review.

[103] I have to consider the grounds for review within the context of the test this Court must apply in deciding whether the arbitrator's decision is reviewable. The ultimate question is whether, holistically viewed, the decision taken by the arbitrator was reasonable based on the evidence placed before her.

[104] I have considered this question after perusal of the transcribed record, the arbitration award and the grounds for review raised by the Applicant. Considering the evidence before the arbitrator holistically, the arbitrator’s findings are not disconnected from the evidence, but in fact, it is based on the evidence presented. The arbitrator’s findings fall within a band of reasonableness based on the evidence that was placed before her. The arbitrator did not misconceive the enquiry but indeed determined the principal issue she was required to determine.

[105] In my view, the arbitrator’s findings fall within a band of reasonableness based on the evidence that was placed before her and there is no basis for this Court to interfere with it on review. In casu, the Applicant was unable to make out a case for review, applying the test of reasonableness.

[106] None of the parties sought a cost order and therefore the issue of cost requires no further consideration.

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

Order

1. The late filing of the Third Respondent’s answering affidavit is condoned;

2. The review application is dismissed;

3. There is no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

Applicant: Mr M C Mogane in person Third Respondent: Advocate R Mudau Instructed by: State Attorney, Johannesburg

[1] Proclamation no 103 of 1994.

[2] Small v Smith 1954 (3) SA 434 (SWA), Barry v Mxaisa 1977 (4) SA 786 (O).

[3] S v Boesak 2000 (3) SA 381 (SCA).

[4] CWH Schmidt and H Rademeyer, ‘Law of Evidence’ (LexisNexis), 9-54 – 9-72.

[5] See: President of the Republic of South Africa and others v South African Rugby Football Union and others 2000 1 SA 1 (CC).

[6] (2007) 28 ILJ 2405 (CC) at para 110.

[7] (2014) 35 ILJ 943 (LAC) (Gold Fields) at para 16.

[8] [2015] 1 BLLR 50 (LAC) at para 33.

[9] Gold Fields supra at paras 18 and 19.

[10] Schedule 8 of the Labour Relations Act 66 of 1995, as amended.

[11] Gold Fields supra at paras 18 and 19.

[12] Act 66 of 1995, as amended.

[13] Mansoor v CCMA & others [2000] 1 BLLR 79 (LC).

[14] A Myburgh and C Bosch, ‘Reviews in the Labour Court’ (LexisNexis), p 107 – 117.

[15] (2015) 36 ILJ 968 (LAC) at paras 12 and 13.

[16] [2011] 2 BLLR 129 (LAC) at para 18.