Mthembu v The Commission For Conciliation, Arbitration and Mediation and Others (JR 2315/2016) [2022] ZALCJHB 159 (30 May 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2315 /2016

In the matter between:

LINDANI PROTAS MTHEMBU

Applicant

and

THE COMMISSION FOR CONCILIATION,

ARBITRATION AND MEDIATION

First Respondent

RENE HUYSER N.O

Second Respondent

SOUTH AFRICAN REVENUE SERVICES

Third Respondent

Heard: 24 May 2022

Delivered: 30 May 2022

(In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be on 30 May 2022.)

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant seeks to review and set aside an arbitration award issued on 18 September 2016 under case number GAEK10164-15 wherein the Second Respondent (arbitrator) found that the Applicant’s dismissal was procedurally and substantively fair and his case was dismissed.

[2] The Third Respondent (Respondent) opposed the application.

Background

[3] The Applicant was employed by the Respondent on 1 October 1997 as a customs official/inspector. His duties included inter alia customs control of overseas passengers by inspecting baggage that was not declared and detaining counterfeit, illicit and commercial goods at the international arrival section of O R Tambo International Airport. On 29 July 2015, the Applicant, along with seven other employees, was issued with a notice to attend a disciplinary hearing. The Applicant was charged with two counts of misconduct relating to a search which occurred on 26 June 2015. After a disciplinary hearing was held, the Applicant was dismissed in November 2015 for misconduct relating to dishonesty in that he allegedly removed seized goods for personal gain and breached the Airports Company South Africa (ACSA) security protocol by avoiding security checkpoints to remove goods from the premises.

[4] The Applicant subsequently referred an unfair dismissal dispute to the First Respondent. The dispute was arbitrated on 6 September 2016. The issue to be decided by the arbitrator was whether or not the Applicant’s dismissal was unfair and if so, the appropriate relief to be awarded.

[5] After considering the evidence, the arbitrator found that the Applicant’s dismissal was fair and his case was dismissed.

General principles

[6] Affidavits in review applications serve two primary purposes: firstly, to define the issues between the parties and secondly, to place the essential averments and evidence before the Court in support or in opposition of the application. Rule 7A of the Labour Court Rules[1] (Rules) provides for the delivery of four sets of affidavits in review applications, to wit a founding, supplementary, answering and replying affidavit. In recognition of the fact that the record obtained by an applicant in a review application may reveal that averments made in the founding affidavit were either erroneously made, omitted or need to be amplified, Rule 7A(8)(a) permits the applicant to deliver a supplementary affidavit within 10 days after the record is made available. This affords the applicant in a review application the opportunity to supplement and/or amend the factual and legal grounds upon which he or she relies in light of the record. A weak founding affidavit can be replaced or augmented by a supplementary affidavit[2].

[7] As a general principle, the applicant in a review application must make out his or her case in the founding affidavit, as may be supplemented by a supplementary affidavit, if necessary, after the transcribed record became available. Rule 7A(2)(c) of the Rules provides that the notice of motion must be supported by an affidavit, setting out the factual and legal grounds upon which the applicant relies to have the decision or proceedings corrected or set aside.

[8] As to the requirement of setting out the legal grounds upon which the applicant relies in the founding affidavit, this requires the applicant to set out, with sufficient precision and detail, the grounds for review and the bases on which such grounds are relied upon.

[9] The role of the reviewing Court is limited to deciding issues that are raised in the applicant’s founding (and supplementary)

affidavit. This was confirmed by the Constitutional Court in CUSA v Tao Ying Metal Industries and others (Tao Ying)[3] where it was held that:

‘…the role of the reviewing court is limited to deciding issues that are raised in the review proceedings. It may not on its own raise issues which were not raised by the party who seeks to review an arbitral award. There is much to be said for the submission by the workers that it is not for the reviewing court to tell a litigant what it should complain about. In particular, the LRA specifies the grounds upon which arbitral awards may be reviewed. A party who seeks to review an arbitral award is bound by the grounds contained in the review application. A litigant may not on appeal raise a new ground of review. To permit a party to do so may very well undermine the objective of the LRA to have labour disputes resolved as speedily as possible.’

[10] A party who seeks to review an arbitration award is bound by the grounds for review contained in the review application, subject to one qualification namely that the Court is obliged to deal with a point of law apparent from the papers[4].

[11] In short: it is critical that the factual and legal foundation of the review application, including the relevant evidence or reference thereto, be canvassed in the founding or supplementary affidavit and that it be linked to the applicant’s grounds for review.

The test on review

[12] 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 to be applied is determined by the nature of the dispute and the decision which forms the subject of the review application. In essence, there are two tests: correctness and reasonableness.

[13] Questions such as whether a dismissal had taken place or not or whether an employment relationship existed or not, go to the issue of jurisdiction. In such a case, this Court has to decide whether the arbitrator was right or wrong in finding for instance that the applicant was or was not an employee. The Court has to consider the evidence that was placed before the arbitrator during the arbitration proceedings and decide the issue de novo and of its own accord[5].

[14] The question in such a case is not whether the finding was justifiable, rational or reasonable[6] and it is also not whether the conclusion reached by the arbitrator was one that a reasonable decision maker could not reach. It has been confirmed on numerous occasions that the review test as laid down in Sidumo and another v Rustenburg Platinum Mines Ltd and others[7] (Sidumo) does not find application in reviewing a jurisdictional ruling or finding[8].

[15] In casu, the Applicant referred an unfair dismissal dispute, challenging the procedural and substantive fairness of his dismissal. The test to be applied in such a case has been set out in Sidumo[9] as 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.

[16] The Labour Appeal Court (LAC) in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and others[10] (Gold Fields) affirmed the test to be applied in review proceedings and held that:

‘In short: A review 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 which was reasonable to justify the decisions he or she arrived at.’

[17] 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[11].

[18] It is within the ambit of the aforesaid principles and the test to be applied on review, that the Applicants’ application for review is to be considered.

This application

The Applicants’ founding affidavit

[19] Considering the test I have to apply in an application for review, there is an obvious difficulty in the Applicant’s case, as set out in his founding and supplementary affidavit. I will deal with the difficulties in the Applicant’s case in turn.

[20] The first difficulty relates to the test to be applied. I have already alluded to the fact that the test to be applied in casu is one of reasonableness. The Applicant has to show that ultimately, considering the evidence placed before her, the arbitrator arrived at an unreasonable result.

[21] The Applicant’s case throughout, as is evident from the averments made in his affidavits, is that the arbitrator ‘erred’ and effectively that the arbitrator arrived at the wrong conclusion as a result of the errors she had committed.

[22] In Bestel v Astral Operations Ltd and others,[12] 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.’

[23] The LAC emphasised that the distinction between review proceedings and an appeal must always be maintained and respected. To state that the arbitrator ‘erred’ and effectively arrived at a wrong conclusion, is akin to an appeal and the case pleaded by the Applicants is not a review. It is evident that the Applicant was unable to maintain the distinction between an appeal and a review.

[24] Whether the arbitrator ‘erred’ and effectively arrived at the wrong conclusion are questions which find no application in casu. The test to be applied in an application such as this one is not whether the decision was correct, but whether it was one that a reasonable decision maker could not have taken, based on the evidence adduced.

[25] There is not a single averment in the Applicant’s founding or supplementary affidavit to the effect that the arbitrator’s findings or the ultimate outcome of the arbitration proceedings were unreasonable. ‘Unreasonableness’, the test to be applied in casu, does not feature in the Applicant’s pleaded case and the arbitration award is not attacked on the ground that it is unreasonable.

[26] The crux of the grounds for review raised by the Applicant as set out in his founding and supplementary affidavits is that the arbitrator erred in numerous respects.

[27] In NUMSA obo Zahela and 3 others v Volkswagen SA (Pty) Ltd and others (Zahela)[13] an application for review was dismissed where the applicant incorrectly relied on ‘reasonableness’ instead of ‘correctness’ and it was held that:

‘[6] In other words, reasonableness ordinarily has no place in a review where the enquiry is whether or not the CCMA had jurisdiction. This is an assessment that must be made objectively, having regard to the facts placed before the commissioner. It amounts to a determination of whether the commissioner’s decision was correct.

[7] It follows that in a matter such as the present, where the proper right of review is one based on correctness, that is the case that must necessarily be pleaded. The applicant, mistakenly, has pleaded on the basis of an attack on the reasonableness of the arbitrator’s decision. Mr Niehaus, who appeared for the applicant, did not dispute that the applicant had sought intervention on a basis that was incorrect. He requested the court to postpone the matter and to grant the applicant leave to file amended papers in order to address the error.

[8] There are a number of considerations that compelled me to conclude that a postponement and the concomitant further delay in the resolution of these proceedings was not appropriate in the circumstances. First, as I have indicated, the fact of the matter is that the applicant has approached this court on the basis of pleadings that posit the incorrect test. All of the submissions in the founding papers, to the extent that they suggest that the arbitrator failed to appreciate the nature of the enquiry that she was to conduct and that her decision fell outside of the band of decisions to which reasonable people could come on the available material, are irrelevant. The applicant would be obliged to make out an entirely new case for review. The present situation is not dissimilar to that where a plaintiff elects the wrong cause of action to pursue his or her claim. It is not open to a plaintiff, generally speaking, in those circumstances simply to seek to remove the matter from the trial roll and introduce a new cause of action.’

[28] This Court has followed the dicta in Zahela in SA Post Office SOC Ltd v Commission for Conciliation, Mediation and Arbitration and others,[14] and I see no reason not to follow same in this instance.

[29] In Gcaba v Minister for Safety and Security and others,[15] the Constitutional Court held that an applicant’s pleadings are the determining factor and stated that:

‘They contain the legal basis of the claim under which the applicant has chosen to invoke the court’s competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits – must be interpreted to establish what the legal basis of the applicant’s claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim…’

[30] The application before me is interspersed with allegations relating to errors committed by the arbitrator and the grounds for review are clearly seeking a review of the arbitration award because it was wrong or the findings were ‘errors’. All those allegations are irrelevant as the test to be applied is reasonableness.

[31] It is trite that an applicant’s case should be made out in the founding affidavit and in a review, that case can be supplemented in a supplementary affidavit. In casu, the case made out is for the review of an arbitration award on the basis that the arbitrator erred. This application is based firmly on errors the arbitrator committed and it admits no scope for a reasonableness argument. In fact, there is not a single averment made to support a case on the basis that the arbitrator or the outcome was unreasonable.

[32] The Applicant has failed to make allegations to sustain this application as he clearly approached this Court on the basis of the incorrect test. This is fatal to the Applicant’s case and on this ground alone the application should be dismissed.

[33] The case presented in the Applicant’s heads of argument is one based on reasonableness. That can however not rescue the Applicant as the factual and legal foundation of the review application must be canvassed in the founding or supplementary affidavit.

[34] Grounds for review cannot be formulated for the first time in heads of argument, nor can reasonableness be introduced when it was not pleaded. In Northam Platinum Ltd v Fganyago NO and others,[16] it was held that:

'In my view, the law is very clear that a ground for review raised for the first time in argument cannot be sustained. The basic principle is that a litigant is required to set out all the material facts on which he or she relies on in challenging the reasonableness or otherwise of the commissioner's award in his or her founding affidavit.’

[35] The Applicant has not established that the decision reached by the arbitrator is one a reasonable commissioner could not reach. He simply attempted to show that the arbitrator had erred, which is insufficient to establish a basis for the review of the award, on the test to be applied.

Inconsistency

[36] Although I am of the view that the Applicant’s case should be dismissed for the reasons alluded to supra, there is another aspect of the application which I deem prudent to address. The Applicant’s case is that the arbitrator failed to consider or apply the principle of consistency. The Applicant specifically referred to ‘consistency of the rule and sanction’.

[37] In response, the Respondent submitted that it was incumbent upon the Applicant if he intended to raise inconsistency, to properly set out a case to which the employer can answer and this ought to be raised at the commencement of the proceedings.

[38] It is evident from the transcribed record that during the opening statement, the Applicant’s dispute was recorded as “…the first aspect that we will be challenging is the substantive fairness of the sanction. The only substantive issue which is in question, [sic] the way the charges have been put to the accused…”

[39] In the arbitration award, the arbitrator referred to the issue of consistency and recorded that in respect of ‘similar treatment of incidents of the breach of the same rule over time’ that “in the present matter no evidence in this regard was submitted.”

[40] As there are no pleadings filed in unfair dismissal disputes that proceed to arbitration, the employer party is not always beforehand aware of the case it has to meet and is not always in a position to know or to anticipate which witnesses to call in defending a claim for unfair dismissal. That is the unfortunate reality facing parties, which sometimes results in unnecessary witnesses being called or necessary witnesses being left out.

[41] However, insofar as a challenge to the consistency of the application of discipline is concerned, the Courts made it clear that such an allegation must be concrete and should be made early in the proceedings. The Courts have confirmed on numerous occasions that consistency is but an element of fairness and not decisive of the outcome on the determination of the fairness of a dismissal.

[42] The LAC in Bidserv Industrial Products (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others[17] held that:

‘This court sounded a warning on approaching the question of inconsistency in the application of discipline willy-nilly without any measure of caution. Inconsistency is a factor to be taken into account in the determination of the fairness of the dismissal but by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. A generalised allegation of inconsistency is not sufficient. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently or that no distinction should have been made must be set out clearly.’

[43] In National Union of Mineworkers obo Botsane v Anglo Platinum Mine (Rustenburg Section),[18] the LAC addressed the issue of consistency and held as follows:

‘Moreover, as a matter of practice, a party, usually the aggrieved employee, who believes that a case for inconsistency can be argued, ought, at the outset of proceedings, to aver such an issue openly and unequivocally so that the employer is put on proper and fair terms to address it. A generalised allegation is never good enough. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently must be set out clearly. Introducing such an issue in an ambush-like fashion, or as an afterthought, does not serve to produce a fair adjudication process. (See SACCAWU and others v Irvin & Johnson Ltd 2002 (3) SA 250 (LAC); (1999) 20 ILJ 2302 (LAC) at [29]; also see Masubelele v Public Health and Social Development Bargaining Council and others [2013] ZALCJHB JR2008/1151 which contains an extensive survey of the case law about the idea of inconsistency in employee discipline.)’

[44] In Comed Health CC v National Bargaining Council for the Chemical Industry and Others[19] the Court held that:

‘It is trite that the employee who seeks to rely on the parity principle as an aspect of challenging the fairness of his or her dismissal has the duty to put sufficient information before the employer to afford it (the employer) the opportunity to respond effectively to the allegation that it applied discipline in an inconsistent manner. One of the essential pieces of information which the employee who alleges inconsistency has to put forward concerns the details of the employees who he or she alleges have received preferential treatment in relation to the discipline that the employer may have meted out.’

[45] The position is this: an applicant who seeks to raise consistency has to raise the issue of inconsistency at the outset of the proceedings and in a concrete fashion to afford the respondent employer party an opportunity to deal with it.

[46] The question is what exactly was the evidence before the arbitrator with regard to the issue of inconsistency and what it was that she was required to determine.

[47] It is evident from the transcribed record that the issue of inconsistency was not raised at the outset of the proceedings. The issue calls for a closer consideration of when and how issue of inconsistency was raised and dealt with in the arbitration proceedings. I invited Ms Zulu, for the Applicant, to direct this Court to specific portion in the transcribed record where the issue of consistency was raised. Ms Zulu requested an opportunity to take instructions from the Applicant on this aspect, which opportunity she was afforded.

[48] Ms Zulu, after obtaining an instruction, submitted that consistency was indeed raised and when pressed to show where that was reflected in the transcript, she referred to the following statement made by the Applicant after he was cross-examined and re-examined. The arbitrator asked a question in clarification regarding the seriousness of security breaches at the airport and the following transpired:

‘Mr Mthembu: Because you see other colleagues doing the same, you were just doing it, not knowing that at… one day you will end up breaching the security.’

[49] Evidently, there are two inherent difficulties with the portion of the record Ms Zulu referred to. Firstly, it does not raise consistency as a challenge. It does no more than provide a lame excuse for breaching security rules – it is acceptable to breach security rules because others are doing it too. Secondly, the statement referred to was made at the end of the case, after all the evidence was adduced and no consistency issues were raised during the arbitration proceedings.

[50] I re-iterate what the LAC said in cases where inconsistency is raised: A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently must be set out clearly and at the onset of the proceedings.

[51] It is evident from the transcribed record that the issue of inconsistency and any concrete details pertaining to that was not raised at the onset of the proceedings or in the cross-examination of the Respondent’s witness. Evidently the Applicant failed in his duty to put sufficient information before the Respondent to afford it an opportunity to respond to the allegations of inconsistency. The arbitrator cannot be faulted for not considering an issue that was not properly raised and canvassed during the arbitration proceedings.

[52] The Applicant’s conduct is certainly not in compliance with the warning echoed by the LAC when it stated that a concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently or that no distinction should have been made, must be set out clearly and at the outset of the proceedings. In casu, it was not raised properly and to introduce ‘consistency’ as a ground for review in the manner the Applicant raised it, is opportunistic and in complete disregard for the applicable principles.

Conclusion

[53] There is another difficulty in the Applicants’ pleaded case, which clearly shows that the Applicant treated this application as an appeal rather than a review. In the supplementary affidavit, the Applicant stated that “[b]ased on this I am led to question the authenticity of the video footage tendered into evidence by the third respondent at the arbitration hearing, as same is inconsistent with the footage tendered into evidence by the third respondent at the disciplinary hearing.”

[54] This is in direct contravention of the events that transpired during the arbitration proceedings. The video footage was shown during the arbitration proceedings and the Respondent’s representative confirmed that it was the same footage shown during the internal disciplinary hearing. The Applicant’s representative then responded “[T]hat’s fine. I don’t have a problem. That’s fine.”

[55] To raise the authenticity of the video footage, not disputed in the arbitration proceedings, in this review application, is not only inappropriate but also indicative of the fact that the Applicant is pursuing a case that is in essence not a review application.

[56] In short: the Applicant dismally failed to make out a case for review in his founding or supplementary affidavit.

Costs

[57] This Court has a wide discretion in making a cost order, considering the requirements of law and fairness.

[58] This Court is ordinarily reluctant to make orders for costs against individuals, for whom the prospect of an adverse costs order may serve to inhibit the exercise of what they perceive as their rights. This is however not an immutable rule.

[59] This is a matter where a cost order will be appropriate. However, I am alive to the fact that the Applicant did not draft the papers in this matter and he is currently unemployed. A cost order will burden the Applicant beyond what he may be able to bear and it is my view that the interest of justice will be best served by making no order as to cost.

[60] In the premises I make the following order:

Order

1. The application for review is dismissed;

2. There is no order as to cost.

______________

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Ms N N Zulu from Ismail and Dahya Attorneys

For the Third Respondent: Mr J Norval from Edward Nathan Sonnenbergs Inc Attorneys

[1] GN 1665 of 14 October 1996: Rules for the conduct of proceedings in the Labour Court.

[2] A Myburgh and C Bosch et al, “Reviews in the Labour Courts”, Lexis Nexis, 2016 at pp 438 – 441.

[3] (2008) 29 ILJ 2461 (CC) at para 67.

[4] Tao Ying at para 68.

[5] Trio Glass t/a The Glass Group v Molapo NO and others (2013) 34 ILJ 2662 (LC) at para 22, Kukard v GKD Delkor (Pty) Ltd (2015) 36 ILJ 640 (LAC) at para 12, fn 2 and Pecton Outsourcing Solutions CC v Pillemer NO and others (2016) 37 ILJ 693 (LC) at para 16.

[6] SA Rugby Player’s Association & others v SA Rugby (Pty) Ltd and others (2008) 29 ILJ 2218 (LAC) (SA Rugby) at para 41.

[7] (2007) 28 ILJ 2405 (CC) at paras 78 and 79.

[8] See: SA Rugby supra, MEC, Department of Health, Eastern Cape v Odendaal and others (2009) 30 ILJ 2093 (LC), Asara Wine Estate & Hotel (Pty) Ltd v Van Rooyen and others (2012) 33 ILJ 363 (LC), Majatladi v Metropolitan Health Risk Management and others (2013) 34 ILJ 3828 (LC).

[9] Sidumo at para 110.

[10] (2014) 35 ILJ 943 (LAC) at para 16.

[11] Gold Fields at paras 18 and 19.

[12] [2011] 2 BLLR 129 (LAC) at para 18.

[13] Unreported judgment. case no: PR 137/13 (handed down on 16 November 2016) at paras 6 - 8.

[14] (2018) 39 ILJ 1350 (LC).

[15] (2010) 31 ILJ 296 (CC) at para 53.

[16] (2010) 31 ILJ 713 (LC) at para 27.

[17] (2017) 38 ILJ 860 (LAC) at para 31.

[18] (2014) 35 ILJ 2406 (LAC) at para 39.

[19] (2012) 33 ILJ 623 (LC) at para 10.