Nxumalo and Another v South African Road Passenger Bargaining Council and Others - Ex Tempore Judgment (JR48/2021) [2022] ZALCJHB 369 (13 April 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

NOT REPORTABLE

CASE NO: JR48/2021

In the matter between: BUYANI THOKOZANE NXUMALO First Applicant SIPHO NKOSI Second Applicant and SOUTH AFRICAN ROAD PASSENGER BARGAINING COUNCIL First Respondent NANCY KEKANA N.O. Second Respondent AUTOPAX PASSENGER SERVICES (PTY) LTD t/a CITY TO CITY AND TRANSLUX Third Respondent

Heard: 13 April 2022

Delivered: 13 April 2022

EX TEMPORE JUDGMENT

PHEHANE, J

Introduction

[1] This is an application in terms of section 145 and/or 158(1)(g) of the Labour Relations Act[1] (LRA), to review and set aside the arbitration award by the second respondent dated 18 December 2020 under case number RPNT6087, in which she found the dismissal of the applicants to be substantively fair but procedurally unfair. The second respondent awarded 1 months’ compensation to each of the applicants. The applicants take issue with the amount of compensation awarded. The application is opposed by the third respondent.

Background

[2] The applicants were employed by the third respondent as bus drivers. They were charged for misconduct pertaining to dishonesty in failing to account for 5 passengers who they boarded on their route (service 6406, from Vaal, in the Gauteng Province to Umtata in the Eastern Cape Province). The allegations concerned boarding the 5 passengers in circumstances where they had no tickets, thereby depriving the third respondent of revenue.

[3] The applicants were dismissed on 16 and 18 September 2020 respectively, pursuant to an internal disciplinary enquiry. They referred an unfair dismissal dispute to the first respondent. The second respondent presided over the arbitration proceedings. Her arbitration award is the subject matter of this application.

Grounds of review and opposition

[4] The grounds of review are in essentially, that the second respondent failed to comply with the provisions of the LRA pertaining to the conduct of a fair and proper arbitration process; that the decision by the second respondent is at odds with the evidence that was placed before her; that she exceeded her powers; that she did not apply her mind to the facts and to the law; that she failed to afford the applicants a fair and proper hearing and failed to properly apply the provisions of the Constitution of the Republic of South Africa. In summary that the second respondent’s decision is irrational and unjustifiable.[2]

[5] The applicants lay no basis for their conclusion that the second respondent’s award of one month’s compensation for each applicant is unreasonable and unjustifiable.

[6] The third respondent opposes the review application on the basis that the decision by the second respondent is reasonable.[3] Mr. Malema for the third respondent submits that the review application is couched as an appeal. As the review application does

not pass the test on review, the application should accordingly be dismissed.

Legal Framework

[7] Section 145(1) and (2) of the LRA set out the basis for the review of an arbitration award and provide as follows:

‘(1) Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the commission may apply to the Labour Court for an order setting aside the arbitration award…

(2) A defect referred to is subsection (1), means –

(a) that the commissioner-

(i) committed a misconduct in relation to the duties of the commissioner as an arbitrator;

(ii) committed a gross irregularity in the conduct of the arbitration

proceedings; or

(iii) exceeded the commissioner’s powers; or

(b) that an award has been improperly obtained.’

[8] Section 158(1)(g) of the LRA provides that:

‘(1) The Labour Court may-

(g) subject to section 145, review the performance or purported performance of any function provided for in this Act on any grounds that are permissible in law.’

[9] The test to succeed in review is now settled in our law. It is this: whether the decision of the arbitrator is one that a reasonable decision- maker could not reach on the totality of evidence before him or her.[4]

[10] In Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others,[5] the Labour Appeal Court (LAC) stated as follows at paragraphs [13] – [21]:

‘[13] The right to review an arbitration award on process-related grounds has been a topic of recent discussion and debate. It has been regarded as a different species of review to that postulated in Sidumo. Sidumo requires the review court to ask the question: is the decision made by the arbitrator one that a reasonable decision-maker could not reach on the available material? This has been interpreted by some to suggest that the Sidumo test deals only with the result or outcome of the arbitration proceedings, and that it remains open to review an award on process-related grounds.

[14] Sidumo does not postulate a test that requires a simple evaluation of the evidence presented to the arbitrator and based on that evaluation, a determination of the reasonableness of the decision arrived at by the arbitrator. The court in Sidumo was at pains to state that arbitration award is made under the Labour Relations Act (LRA) continue to be determined in terms of s 145 of the LRA but that the constitutional standard of reasonableness is “suffused” in the application of s145 of the LRA. This implies that an application for review sought on the grounds of misconduct, gross irregularity in the conduct of the arbitration proceedings, and/or excess of powers will not lead automatically to a setting aside of the award if any of the above grounds are found to be present. In other words, in a case such as the present, where a gross irregularity in the proceedings is alleged, the enquiry is not confined to whether the arbitrator misconceived the nature of the proceedings, but extends to whether the result was unreasonable, or put another way, whether the decision that the arbitrator arrived at is one that falls within the band of decisions to which a reasonable decision- maker would come on the available material.

[15] A ‘process- related review’ suggests an extended standard of review, one that admits the review of an award on the grounds of a failure by the arbitrator to take material facts into account, or by taking into account facts that are irrelevant, and the like. The emphasis here is on process, and not on result. Proponents of this view argue that where an arbitrator has committed a gross irregularity in the conduct of the arbitration as contemplated by s 145 (2), it remains open for the award to be reviewed and set aside irrespective of the fact that the decision arrived at by the arbitrator survives the Sidumo test. I disagree. What is required is first to consider the gross irregularity that the arbitrator is said to have committed and then to apply the reasonableness test established by Sidumo. The gross irregularity is not a self-standing one insulated from or standing independent of the Sidumo test. That being the case, it serves no purpose for the reviewing court to consider and analyse every issue raised at the arbitration and regard failure by the arbitrator to consider or some of the issues albeit material as rendering the award liable to be set aside on the grounds of process- related review.

[16] In short: the 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 fact that the arbitrator committed a process- related irregularity is not in itself a sufficient ground for interference by the reviewing court. The fact that an arbitrator committed a process-related irregularity does not mean that the decision reached is necessarily one that a reasonable commissioner in the place of the arbitrator could not reach.

[18] In a review conducted under s 145(2)(a)(c)(ii) of the LRA, 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 one or some of the factors amounts to process-related irregularity sufficient set aside the award. This piecemeal approach of dealing with the arbitrator’s award is improper as a review court must necessarily 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.

[19] To do it differently or to evaluate every factor individually and independently is to defeat the very requirements set out in section 138 of the LRA which requires the arbitrator to deal with the substantial merits of the dispute between the parties with the minimum of legal formalities and to do so expeditiously and fairly. This is also confirmed in the decision of CUSA v Tao Ying Metal Industries.

[20] Failing to consider a gross irregularity in the above context would mean that an award is open to be set aside where the arbitrator (i) fails to mention a material fact in his award; or (ii) fails to deal in his/her award in some way with an issue which has some material bearing on the issue in dispute; and/or (iii) commits an error in respect of the evaluation or consideration of facts presented at the arbitration. The questions to ask are these: (i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed to give the parties a full opportunity to have a say in respect of the dispute? (ii) Did the arbitrator identify the dispute he was required to arbitrate (this may in certain cases only become clear after both parties have led the evidence)? (iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate? (iv) Did he or she deal with the substantial merits of the dispute? and (v) Is the arbitrator’s decision one that another decision-maker could reasonably have arrived at based on the evidence?

[21] Where the arbitrator fails to have regard to the material facts it is likely that he or she will fail to arrive at a reasonable decision. Where the arbitrator fails to follow proper process he or she may produce an unreasonable outcome (see Minister of Health and another v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC). But again, this is considered on the totality of the evidence not on a fragmented, piecemeal analysis. As soon as it is done in a piecemeal fashion, the evaluation of the decision arrived at by the arbitrator assumes the form of an appeal. A fragmented

analysis rather than a broad-based evaluation of the totality of the evidence defeats review as a process. It follows that the argument that the failure to have regard to material facts may potentially result in a wrong decision has no place in review applications.

Failure to have regard to material facts must actually defeat the constitutional imperative that the award must be rational and

reasonable- there is no room for conjecture and guesswork.’

Analysis

[11] The applicants are at pains to challenge the arbitration award on a piecemeal basis which is cautioned against by the LAC in Gold Fields.

[12] The totality of evidence before the second respondent was that the applicants loaded 10 passengers on the bus that they were driving on 27 October 2019: 3 at Masiza, 2 at Sebokeng and 5 at Sasolburg. Three documents had to be in the applicants’ possession at the commencement of the trip – (1) a manual passenger list, which is important to verify the passengers on the bus; (2) a trip journal and (3) an envelope for ticket stubs.[6]

[13] The evidence of the applicants boarding 10 passengers is undisputed.[7] The evidence is that of the 10 passengers, 5 were accounted for, as they had prepaid tickets that were verified on the third respondent’s

system (these were the passengers boarded at Masiza and Sebokeng). The 5 passengers that were boarded at Sasolburg by the applicants

were unaccounted - these 5 passengers were not contained in the passenger list containing pre-paid or electronic tickets – they were passengers that would have paid cash and the applicants had a duty in those circumstances, to hand over the manual ticket stubs from the cash sales, as well as the revenue, to the third respondent. They did not.

[14] The evidence of Ms. Hlungwane, the operations manager of the third respondent, was that no ticket stubs and no revenue was received from the applicants in relation to the 5 passengers that they boarded at Sasolburg. See: in this regard, the transcribed record, at p 23, lines 15 to 20 which reads: as follows:

‘RESPONDENT REPRESENTATIVE: R 3000 I suppose, do you know if this R 3000 was deposited?

MS. KHENSANI HLONGWANE: Uhm, no there was no revenue paid by them (except) the one that we received electronically which is on the passenger list of 6406. Page 13, it’s it’s R1 350.’

[15] Further, that the applicants’ version that the 5 passengers had purchased tickets from other terminals on the route could not be sustained, as these sales did not appear on the prepaid passenger list and no stubs or portions of tickets from other

terminals supported the applicants’ version.

[16] It transpires from the transcribed record of the arbitration proceedings, that the evidence of Mr. Nkosi (the second applicant) on behalf of the applicants, was contradictory in relation to the 5 unaccounted passengers that were boarded on their bus route. He stated that in total, all 10 passengers had electronic (prepaid) tickets and in the same breath, that all ticket stubs collected on the day in question were handed over to the third respondent. It also transpires from the record, that the applicants submitted written statements[8] to the third respondent during Ms. Hlungwane’s investigations, to the effect that they found 10 passengers at Masiza and only loaded 3, as the other passengers were taking a different route. This version is irreconcilable with the 5 passengers that were loaded at Sasolburg, which the applicants could not explain when challenged. This evidence was before the second respondent and she considered it.

[17] In my view, therefore, on the totality of evidence before the second respondent, her decision is reasonable. There is accordingly no basis to interfere with the arbitration award.

[18] In view of the afore-going, the following order is made:

Order

1. The review application is dismissed.

2. There is no order as to costs.

M. T. M. Phehane

Judge of the Labour Court of South Africa

[1] Act 66 of 1995 (as amended).

[2] Founding affidavit at para 28, pp 16 to 17.

[3] Answering affidavit at paras 32 and 33, p 50.

[4] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC); Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 943 (LAC); Herholdt v Nedbank (2013) 34 ILJ 2795 (SCA).

[5] Gold Fields, supra.

[6] Transcribed record, p 67- the evidence of Mr. Nkosi (second applicant).

[7] Documents bundle, p 46.

[8] Documents bundle, p 47 and 97.