National Union of Metal Workers of South Africa and Another v Commissioner for Conciliation, Mediation and Arbitration and Others (PR 10/22) [2023] ZALCPE 6; (2023) 44 ILJ 1575 (LC) (3 May 2023)

FLYNOTES: LABOUR – Dismissal – Gross negligence – Failure to check forklift – Importance of pre-operation inspection and check-list – Low oil resulted in loss of engine and scrapping of forklift – Large financial loss – Employee expected to be vigilant as a skilled and qualified operator – Given the degree of deviation from the standard operating procedure and the damages suffered, the trust relationship was lost – Dismissal an appropriate sanction.

THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH

Reportable

Case no: PR 10/22

In the matter between:

NATIONAL UNION OF METAL WORKERS

OF SOUTH AFRICA

First Applicant

CHRISTOPHER LUMKA

Second Applicant

and

THE COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

First Respondent

GERALDINE MASUNUNGURE N.O

Second Respondent

TRENSTAR

Third Respondent

Heard: 18 April 2023

Delivered: 3 May 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 3 May 2023.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicants seek to review and set aside an arbitration award issued on 6 December 2021 wherein the Second Respondent (arbitrator) found the Second Applicant’s (Mr Lumka) dismissal substantively and procedurally fair.

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

Background facts

[3] The Respondent had employed Mr Lumka since August 2005. He had worked as a licensed forklift operator for ten years.

[4] Mr Lumka was charged with misconduct in respect of an incident that occurred on 20 November 2020 and he had to attend a disciplinary hearing on 1 December 2020, where he faced the two charges of misconduct, to wit:

‘1. Gross dereliction of duties/failing to follow company SOP in that you failed to conduct a routine check of the forklift which resulted in the forklift engine failing.

2. Gross negligence/damage to company property in that when being questioned on whether you had checked the forklift, as per company checklist, you informed your manager (Sherwin) that you completed all checklists on Monday for the rest of the week, meaning that you had not checked the forklift for the whole week.’

[5] After a disciplinary hearing was held, Mr Lumka was found guilty of misconduct and dismissed on 8 December 2020.

[6] The Applicants subsequently referred an unfair dismissal dispute to the First Respondent (CCMA) and the matter was arbitrated. The issue to be decided by the arbitrator was whether Mr Lumka’s dismissal was substantively and procedurally fair.

The arbitrator’s findings

[7] In the arbitration award, the arbitrator recorded that the crux of the matter is whether the sanction of dismissal was appropriate in the circumstances. The arbitrator ultimately found Mr Lumka’s dismissal procedurally and substantively fair. In this application, the Applicants took no issue with the finding that Mr Lumka’s dismissal was procedurally fair.

[8] In their founding and supplementary affidavit, the Applicants raised several issues in respect of the arbitration award. It is unfortunate that the Applicants adopted a scattered approach in formulating their grounds for review as if they were hoping that at least one of their salvos would succeed in striking its intended target, namely the review and setting aside of the arbitration award. The issues raised were more criticisms than grounds for review. Such an approach is not only unacceptable but also displays a lack of understanding of the clear divide between an appeal and a review. Applicants in review applications should not randomly take issue with every finding of the arbitrator but should consider the test applicable and formulate grounds for review that are proper, focused and aligned with the applicable test.

[9] The Applicants stated, for instance, that the fairness of Mr Lumka’s dismissal was challenged on the grounds that he had not operated the forklift on 20 November 2020, but that he merely started it and that it made a sound, which indicated that it was already damaged at the time it was started. The Respondent’s version on the other hand was that there are standard operating procedures (SOP) in place governing the safe use of the forklifts, which included routine protocols and that the driver of the forklift must check it daily before it is used. On 20 November 2020, the forklift used by Mr Lumka emitted a loud knocking sound and upon inspection, it was found that there was no oil in the machine, which caused the engine to fatally seize, resulting in a

financial loss of nearly R 100 000. When Mr Lumka’s daily checklist was checked, it was noticed that he had ticked off that he had done the daily inspection of the forklift. Upon being questioned on how it was possible that the engine could seize due to there being no oil, when it was checked on the morning of the incident and before it was started (Friday 20 November 2020), Mr Lumka explained that he had completed the checklist on the Monday, for the entire week and that the checklist was not completed and the forklift was not actually checked on the morning of the incident.

[10] In the Applicants’ heads of argument, the issues to be decided on review were more focused than what had been raised in the affidavits and in argument, Ms Luthuli, for the Applicants, distilled the issues even more. Ms Luthuli submitted that no issue is taken with the fact that the forklift was damaged due to Mr Lumka’s misconduct and because of this concession (correctly

so in view of the evidence) a number of issues raised were effectively abandoned and fell away and need not be further considered in this application.

[11] The remaining issues to be considered, on the Applicants’ own version, are whether the arbitrator applied her mind and assessed the evidence before her in relation to the question of the appropriateness of the sanction and the question of a broken trust relationship.

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 has been set out in Sidumo and another v Rustenburg Platinum Mines Ltd and others[1] (Sidumo) 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.

[13] The Labour Appeal Court (LAC) in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others[2] 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.’

[14] The review Court is not required to consider every factor individually and 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.[3]

[15] In Quest Flexible Staffing Solutions (Pty) Ltd (A division v Lebogate[4] (Quest Flexible Staffing), 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.’

[16] In Bestel v Astral Operations Ltd and others,[5] 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.’

[17] It has been emphasized by the Courts that a review is not an appeal. This was confirmed in Duncanmec (Pty) Ltd v Gaylard NO and others[6] (Duncanmec) where the Constitutional Court held that:

‘[40] As is apparent from Sidumo, the genesis of the reasonableness standard of review is section 33(1) of the Constitution which confers on everyone the right to administrative action that is lawful, reasonable and procedurally fair. Since an award like the one we are concerned with here constitutes administrative action, the Constitution requires it to be procedurally fair, lawful and reasonable. This means that an award that fails to meet these requirements is liable to be set aside on review. These requirements are in addition to the grounds of review listed in section 145 of the LRA. However, to some extent the latter grounds may overlap with the constitutional requirements. But the reasonableness standard is sourced from section 33 of the Constitution alone. It does not form part of the overlap.

[41] Sidumo cautions against the blurring of the distinction between appeal and review and yet acknowledges that the enquiry into the reasonableness of a decision invariably involves consideration of the merits. So as to maintain the distinction between review and appeal this Court formulated the test along the lines that unreasonableness would warrant interference if the impugned decision is of the kind that could not be made by a reasonable decision-maker.

[42] This test means that the reviewing court should not evaluate the reasons provided by the arbitrator with a view to determine whether it agrees with them. That is not the role played by a court in review proceedings. Whether the court disagrees with the reasons is not material.

[43] The correct test is whether the award itself meets the requirement of reasonableness. An award would meet this requirement if there are reasons supporting it. The reasonableness requirement protects parties from arbitrary decisions which are not justified by rational reasons.’

[18] The review test to be applied in casu is a stringent and conservative test of reasonableness. The Applicants must show that the arbitrator arrived at an unreasonable result.

Grounds for review

[19] The two primary issues raised by the Applicants, which are the only ones persisted with, will be considered in turn.

Gross negligence

[20] The first issue or attack is that Mr Lumka was only guilty of ordinary negligence and therefore the sanction of dismissal is too harsh. In support of this, the Applicants submitted that the arbitrator’s reasoning suggests that Mr Lumka was fairly dismissed for negligent conduct, however, he was not dismissed for negligence, but for gross negligence. The Applicants’ case is that the arbitrator referred to ordinary negligence in her findings because Mr Lumka’s conduct or omission did not meet the requirements of gross negligence. As such, it could not be regarded as a voluntary and conscious disregard of the duty to use reasonable care, which was likely to cause the employer a foreseeable, grave injury. In short: Mr Lumka’s conduct or omission did not constitute ‘gross negligence’, wherefore dismissal was not an appropriate sanction and the arbitrator’s finding that it was indeed appropriate, is unreasonable.

[21] There is no merit in this criticism, for reasons set out infra.

[22] I already alluded to the fact that the reviewing Court must consider the totality of the evidence and the arbitration award in its entirety and then decide whether the decision made by the arbitrator is one that a reasonable decision maker could make, based on the evidence adduced.

[23] The arbitration award must be considered holistically. It is evident from the award that the arbitrator was alive to the fact that Mr Lumka was dismissed for gross dereliction of duties - failing to follow the company’s SOP in that he failed to conduct a routine check of the forklift which resulted in the forklift engine failing and gross negligence/damage to company property. She identified the questions to be addressed as the rules regarding the driving and pre-checking of a forklift, the degree to which Mr Lumka disregarded the rules and procedures governing the inspection of a forklift, the justification of Mr Lumka’s departure from the SOP and whether there was a failure to exercise due care.

[24] The arbitrator correctly recorded that in the case of a dismissal based on negligence, the employee should have failed to exercise the standard of care that can reasonably be expected of him or her, which conduct caused a loss or potential loss to the employer. The arbitrator dealt in detail with the requirements to establish negligence as:

1. Would a reasonable person in the particular circumstances of the employee have foreseen the reasonable possibility that his or her conduct would cause harm to another person or property;

2. Would a reasonable person have taken reasonable steps to prevent such harm from occurring;

3. If the answer to the above questions are in the affirmative and the employee did foresee such harm and did not take the necessary steps to prevent it, he or she would have been negligent.

[25] The arbitrator applied the aforesaid principles to the facts before her through a proper analysis of the evidence. She held that to protect company finances, property and lives against a failure and the consequences that would follow where oil levels in forklifts were not checked, the measure of a pre-operation forklift inspection had been implemented and is carried out through a thorough checklist. The arbitrator recorded the reasons why such a pre-operation inspection and checklist are necessary and found that adhering to a pre-operation inspection regiment is not inherently difficult, but requires a level of operator discipline.

[26] Considering Mr Lumka’s position, the arbitrator found that he was not a learner or a newly licensed operator, but instead, he had 10 years’ experience and he was familiar with the forklift and the instruction and training to carry out the required checks, which were not ‘merely a by-the-way thing’.

[27] The arbitrator found that the forklift’s engine failed completely, which resulted in extensive damage because the engine did not have the oil it needed. The forklift had to be scrapped due to the extent of the damage. Mr Lumka could have avoided the catastrophic engine failure and damage by doing his daily checks and completing the checklist, not as a mere ticking exercise, but by actually checking the oil levels, as he was expected to do. Mr Lumka had not exercised due diligence and care and it resulted in a huge financial loss for the Respondent. The arbitrator found that the damage could have been avoided had Mr Lumka done what he was supposed

to do and had he taken reasonable steps by conducting a daily pre-check and completing the checklist properly.

[28] The arbitrator found that the pre-check only takes a few minutes, but it ensures that obvious defects or problems that could affect the forklift and safety are identified. She concluded that Mr Lumka was a licensed and competent forklift operator, who did not exercise due care when discharging his duties. As a skilled operator, the expected standard was for him to be extra vigilant, and his conduct amounted to gross negligence.

Analysis

[29] The Applicants submitted that the arbitrator “deliberately referred to negligence in her findings because the conduct or omission of the [Mr Lumka] is not of such a nature that it can be viewed as a voluntary and conscious disregard of the need to use reasonable care which was likely to cause the employer foreseeable grave injury. The commissioner’s reasoning suggests that [Mr Lumka] was fairly dismissed for his negligent conduct, however, [Mr Lumka] was not just dismissed for ordinary negligence, but for gross negligence. The commissioner’s finding that [Mr Lumka’s] dismissal was substantively fair is unreasonable”.

[30] The Applicants’ submission hardly discloses a proper ground for review but is rather an opportunistic attack and grasping at the straws of semantics.

[31] In Mukheiber v Raath and another,[7] the Supreme Court of Appeal (SCA) restated the test for negligence as follows:

‘In our law, the standard of conduct expected from all members of society is that of the bonus paterfamilias, ie the reasonable man or woman in the position of the defendant. An act which falls short of this standard and which causes damage

unlawfully is described as negligent, ie it is tainted with culpa.

The test for culpa can, in the light of the development of our law since Kruger v Coetzee 1966 (2) SA 428 (A) be stated as follows (see Boberg, The Law of Delict at 390):

For the purposes of liability culpa arises if –

(a) a reasonable person in the position of the defendant –

(i) would have foreseen harm of the general kind that actually occurred;

(ii) would have foreseen the general kind of causal sequence by which that harm occurred;

(iii) would have taken steps to guard against it, and

(b) the defendant failed to take those steps.’

[32] Negligence, in short, is the failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person and in the employment context, the employee’s conduct is compared with the standard of skill and care that would have been expected of a reasonable employee in the same circumstances. The reasonable employee with whom the employee is compared must have experience and skill comparable with that of the employee charged. In labour law, negligence is not applied ‘in vacuo’ or against the general standard of a ‘reasonable person’, but it is applied in the context of the particular workplace or industry, considering the performance standards and procedures set by the employer. Negligence is usually established with reference to workplace rules or procedures applicable in the workplace.

[33] In casu, the Respondent had a specific SOP in place, it required of Mr Lumka to do a daily pre-operation check of the forklift and to complete the checklist. On Mr Lumka’s own version, he did not conduct the pre-operation inspection on the day of the incident and he did not complete the checklist on a daily basis, but instead completed it on the Monday, in advance, for the entire week. Mr Lumka had not checked any aspects of the forklift, as he was required and expected to do, and as a result, he did not detect the low levels of oil in his forklift, which ultimately resulted in the seizing of the engine. Had Mr Lumka conducted the re-operation check on the day of the incident, he would have noticed that there was no oil in the engine, he would not have started the engine on 20 November 2020 and the engine would not have seized, but because of his failure, the engine seized and the respondent suffered a huge financial loss. The conduct of Mr Lumka is textbook negligence.

[34] The Applicant’s submission, that the arbitrator ‘deliberately’ referred to negligence, instead of gross negligence because Mr Lumka’s conduct could not be viewed as ‘grossly’ negligent, is opportunistic and misplaced. The arbitrator correctly set out the test for negligence and she applied the test to the facts and ultimately concluded that Mr Lumka was grossly negligent.

[35] The test for negligence remains the same – whether negligence, once established, is gross, is a matter of degree, to be determined considering a number of relevant factors. Those factors are inter alia whether the employee is persistently negligent; the seriousness of the act or omission; whether the act or omission is inexcusable; the employee’s awareness of the performance standard required or the procedure to be complied with; the seriousness of the

consequences of the act or omission; damages caused and the skills and experience of the employee or the position held by the employee.

[36] In casu, the arbitrator considered that Mr Lumka was a qualified and licensed forklift operator, who had been in that position for a period of 10 years, who was well aware of the SOP and whose conduct resulted in a huge financial loss for the Respondent. Mr Lumka was experienced, the SOP he had to comply with was necessary and not difficult to comply with and as a result his omission, constituted gross negligence. These are findings and conclusions based on the facts and evidence presented and a proper application of the law, they are not unreasonable.

[37] The Applicants further submitted that when applying the test of a reasonable person, the arbitrator did not consider the fact that Mr Lumka was suffering from the side effects of the medication he had taken, which should then shift the reasonable person against whom he is tested. The Applicants’ submission displays an incorrect understanding of the test to be applied.

[38] Mr Lumka’s defence was that he had used Mybulen, which he bought from the pharmacy for pain and that he was suffering from side effects such as forgetfulness, dizziness and tiredness during the day at the time of the incident. The arbitrator rejected Mr Lumka’s defence that he was suffering from the side effects of the medication. She found that the defence was wanting for

a number of reasons – it was raised for the first time during the arbitration proceedings, Mr Lumka operated his forklift for the entire week without raising any medical issues with the Respondent, the Mybulen was not prescribed by a doctor and no expert evidence was adduced to support Mr Lumka’s case on the side-effects, nor was there a medical certificate to declare that he was indeed unfit and Mr Lumka only realised the side effects of the Mybulen when his union representative posed the question about the medication he took at the time, during the arbitration hearing.

[39] In my view, the defence raised by Mr Lumka makes matters worse for him and it is a defence that should rather not have been raised. There are many safety regulations that apply in a workplace where forklifts are operated and to operate a forklift when one is forgetful, dizzy and tired, is irresponsible, indicative of negligence and displays a disregard for safety. The arbitrator questioned why, if Mr Lumka was indeed suffering from dizziness, forgetfulness and tiredness, he would report for duty at all.

[40] The test to be applied and with whom the employee is compared, is that of a reasonable employee, having experience and skill comparable with that of the employee charged, in the context of the particular workplace or industry, considering the performance standards and procedures set by the employer. As such, Mr Lumka was to be compared to a reasonable forklift operator, who was licensed with 10 years of experience and not to a ‘reasonable person experiencing the side effects of medication’. As the arbitrator correctly observed - a reasonable forklift operator, who is forgetful and dizzy, would not get “behind the steering wheel, let alone operate heavy equipment, putting the respondent at risk”.

Trust relationship

[41] After finding that Mr Lumka was grossly negligent, the arbitrator considered the appropriateness of the sanction. She considered that Mr Lumka denied that he was guilty of misconduct, which showed his lack of appreciation of the harm his conduct had caused to the Respondent and that he was entrusted as a custodian of the forklift, which he had a duty to take care of. The arbitrator concluded that, given the nature of the offence, the number of years Mr Lumka operated as a forklift operator, the degree to which he deviated from the SOP and the catastrophic damage to the engine and the damages suffered by the Respondent, dismissal was an

appropriate sanction as the Respondent justifiably had lost trust in the continuation of an employment relationship.

[42] The Applicant’s case is that the incident occurred on 20 November 2020 and that the Respondent did not suspend Mr Lumka until his dismissal on 8 December 2020, which indicates that he was entrusted with the Respondent’s equipment and the proper performance of his duties. The arbitrator’s finding that the trust relationship had broken down, is unreasonable in view of the evidence that the trust relationship was in fact not broken.

[43] The Respondent’s witness, Mr Agnew, testified that Mr Lumka was not suspended between the date of the incident and the date of dismissal, as he was not working on a forklift, and it took time to complete the investigation and to get a report on that. Mr Agnew testified that Mr Lumka’s conduct resulted in a breakdown of the trust relationship, as he relies on the Respondent’s employees to carry out their duties correctly and in compliance with the SOP, which Mr Lumka failed to do and which caused damage of R 100 000 to the Respondent. Mr Agnew, as the manager, is not always around to check that employees were acting in accordance with the SOP and he has to be in a position to trust that the employees would carry out their duties as expected.

[44] In support of this criticism, the Applicants made specific reference to Edcon Ltd v Pillemer NO and others[8] (Edcon) where the SCA found that dismissal was unfair in the absence of evidence that the trust relationship was damaged. The Applicants submitted that it was not sufficient for the Respondent to declare that the employment relationship was broken, but it had to adduce persuasive evidence to that effect. In casu, there was no such evidence and as a result, it was unreasonable to find that the employment or trust relationship had broken down.

[45] There is no merit in this ground for review and the Applicants’ reliance on Edcon is misplaced.

[46] In Edcon, the charge levelled against the employee was:

‘failure to be honest and act with integrity in that you committed an act, which has affected the trust relationship between the company and the employee in that on 8 June 2003 to 8 October 2003: You failed to report an accident of a company vehicle... which your son was driving on the day of the accident (8 June 2003) and this resulted in a breach of trust between yourself and the company.’

[47] The SCA found that Edcon had led no evidence showing the alleged breakdown in the trust relationship and that in the absence of evidence showing the damage Edcon asserted in its trust relationship with the employee, the decision to dismiss her was correctly found to be unfair.

[48] In my view, the Applicants’ reliance on Edcon is indicative of the fact that they have not followed the development in the case law since the handing down of Edcon in October 2009.

[49] In Impala Platinum Ltd v Jansen and others,[9] the court a quo held that Edcon laid down the principle that, in order for the sanction of dismissal to be appropriate, the employer must lead evidence to show that there was a breakdown in the employment relationship. Absent such evidence, the arbitrator should not assume that the relationship had broken down.

[50] On appeal, the LAC disagreed and held that the court a quo’s reliance on Edcon was totally misconceived as Edcon had turned on its own facts and did not establish, as an immutable rule, that an employer must always lead evidence to establish a breakdown in the trust relationship in order for the sanction of dismissal to be appropriate.

[51] The LAC pointed out that in Edcon the charge against the employee was that she had violated the trust relationship by being untruthful and the charge specifically stated that the trust relationship had broken down. The employee led evidence to show that it was not the case and it was in those circumstances, that the court concluded that evidence was necessary before the arbitrator could make a finding of a breakdown of trust.

[52] In G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO and others,[10] it was held that:

‘The employment relationship by its nature obliges an employee to act honestly, in good faith and to protect the interests of the employer. The high premium placed on honesty in the workplace has led our courts repeatedly to find that the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely. Dismissal for dishonest conduct has been found to be fair where continued employment is intolerable and dismissal is a “sensible operational response to risk management”.’

[53] The LAC found that, in spite of the absence of direct evidence showing the breakdown in the trust relationship, the sanction of dismissal was fair where the employee was blatantly dishonest in circumstances where the employer is entitled, as an operational imperative, to rely on honesty and full disclosure by its employees.

[54] Although Mr Lumka was not dismissed for dishonesty, the same principles apply – an employee is obliged to act to protect the interests of the employer and where an employee fails to do so and the failure constitutes serious misconduct, the sanction of dismissal will be fair, as an employer is entitled, as an operational imperative, to rely on its employees to act in good faith and to protect the interests (which includes property) of the employer. In such a case, dismissal becomes an operational imperative and way of managing risk.

[55] In De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and others,[11] the LAC found that the risk factor is paramount:

‘Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.’

[56] Since Edcon, the LAC has repeatedly stated that where an employee is found guilty of gross misconduct it is not necessary to lead evidence pertaining to a breakdown in the trust relationship as it cannot be expected of an employer to retain a delinquent employee in its employ. Serious misconduct destroys the employment relationship and when that happens, dismissal is appropriate.

[57] It is evident that the arbitrator considered relevant factors to decide whether dismissal was an appropriate and fair sanction, which it indeed was, considering the facts of this case.

Conclusion

[58] In Quest Flexible Staffing,[12] the LAC confirmed that an arbitration award will 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.

[59] This Court can review an arbitration award if the arbitrator’s finding is unsupported by any evidence, if it is based on speculation or if it is disconnected from the evidence. 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.

[60] 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.

[61] In Duncanmec, the Constitutional Court considered the question of whether an arbitration award was unreasonable and held that:

‘The issue that remains for consideration is whether the impugned award was vitiated by unreasonableness. In determining this question the Court is required to examine the award for the reasons motivating the decision reached. If the reasons advanced rationally support the outcome arrived at, interference with the award on the basis of unreasonableness would not be justified. This would be the position even if the Court does not agree with the reasons furnished. Section 33 of the Constitution does not guarantee a perfect or correct administrative action but a reasonable one.’[13]

[62] I have considered this question after perusal of the transcribed record, the arbitration award and the grounds for review raised and persisted with 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. There is no basis for this Court to interfere with the award on review.

Costs

[63] The Court has a broad discretion to make orders for costs according to the requirements of the law and fairness.

[64] In Zungu v Premier of the Province of KwaZulu-Natal and Others,[14] the Constitutional Court confirmed that the rule that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand, allowing those parties to bring to this Court (or oppose) cases that should not have been brought to Court (or opposed) in the first place.

[65] The parties did not make any submissions in respect of costs, but ultimately left the issue in the hands of this Court. In my view, this is a matter where the interest of justice would be best served by making no order as to costs.

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

Order

1. The review application is dismissed;

2. There is no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicants: Ms N Luthuli from NUMSA

For the Third Respondent: Advocate F E Le Roux

Instructed by: Chris

Baker & Associates Attorneys

[1] (2007) 28 ILJ 2405 (CC) at para 110.

[2] (2014) 35 ILJ 943 (LAC) at para 16.

[3] (2014) 35 ILJ 943 (LAC) at paras 18 - 19.

[4] (2015) 36 ILJ 968 (LAC) at paras 12 - 13.

[5] [2011] 2 BLLR 129 (LAC) at para 18.

[6] [2018] 12 BLLR 1137 (CC) at paras 40 – 43.

[7] 1999 (3) SA 1065 (SCA) at para 31.

[8] (2009) 30 ILJ 2642 (SCA).

[9] [2017] 4 BLLR 325 (LAC).

[10] (2017) 38 ILJ 881 (LAC) at para 26.

[11] (2000) 21 ILJ 1051 (LAC) at para 22.

[12] Quest Flexible Staffing supra at paras 12 - 13.

[13] Duncanmec supra at para 50.

[14] (2018) 39 ILJ 523 (CC) at para 24.