Nziana v National Bargaining Council for the Chemical Industries and Others (JR2925/12) [2014] ZALCJHB 363 (17 September 2014)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case JR 2925/12

In the matter between:

SUCCESS NZIANA Applicant And THE NATIONAL BARGAINING COUNCILFOR THE CHEMICAL INDUSRIES M.S. RAFFEE N.O. CONSOL GLASS First Respondent Second Respondent Third Respondent

HEARD: 3 July 2014

DELIVERED: 17 September 2014

MORGAN,AJ

[1] This is an application in terms of Section 145 of the Labour Relations Act 66 of 1995 (“the LRA”) in which the Applicant (“Nziana”) seeks the review and setting aside of an arbitration award dated 11 October 2012 (“the award”)

issued by the Second Respondent (“the Arbitrator”) acting under the auspices of the First Respondent (“the council”).

[2] The matter was previously removed from the unopposed roll as the Third Respondent (“Consol”) filed opposing papers.

Factual Background

[3] Nziana was employed by Consol on or about 25 June 2008 and at the time of his dismissal held the position of Shift Manager at Consol, reporting to Selomo Magatikele (“Magatikele”).

[4] It would appear that Consol had various problems with Nziana’s performance and on or about 13 February 2012 he was placed on a performance review process.

[5] This process envisaged that his performance would be reviewed every two weeks.

[6] From the papers filed, and indeed the evidence led at arbitration, it would appear that this process was not followed however, it does appear that Nziana’s perceived continued poor performance was regularly addressed with him, both by e-mail and informally.

[7] This culminated in a meeting held on 7 May 2012 at which Nziana was present, as were various other members of Consol’s staff – who testified at the arbitration.

[8] Nziana’s seniors took issue with his conduct at this meeting and, as a result he was charged with two counts of misconduct,

specifically:

Gross insolence – you made comments inciting your crew members against management during the cascade meeting on the 07 May 2012;

Gross dereliction of duties– repeated poor work performances, lack of shift control and failure to address production and quality related issues on time.

[9] The disciplinary hearing took place on or about 14 May 2012 and Nziana was, subsequent thereto, dismissed.

[10] Feeling aggrieved by such dismissal, Nziana referred a dispute to the Council which was, on or about 1 October 2012, presided over by the Arbitrator.

[11] The award was issued on or about 11 October 2012 in which the dismissal of Nziana was found to have been substantively fair.

[12] Procedure (ie the disciplinary process) does not appear to have been challenged.

[13] Nziana now seeks, on various grounds, that the award be reviewed and set aside.

Condonation

[14] Consol’s opposing affidavit was delivered some thirty days late and condonation has been sought.

[15] In the opposing affidavit, deposed to by Simon Mosuwe (“Mosuwe”) the reason for lateness is given as being that he, incorrectly, assumed that the Council would oppose the application and that accordingly there was no need for Consol to take any steps. This was on the strength of communication from one Susan Nagel, apparently an employee of the Council[1].

[16] He stated that it was only upon receipt of a notice of set down that he realised that Consol was still a party to the matter and thereafter took steps to oppose the application[2].

[17] Mosuwe submits further that there is no prejudice to Nziana and that Consol has excellent prospects of success in opposing the review[3].

[18] Nziana responds at some length to the submissions on condonation, attaching correspondence between Mosuwe and his (Nziana’s)

Attorney of record, Johanette Rheeder (“Rheeder”)[4].

[19] This correspondence, which is friendly in nature and tone, evidences that the parties were engaging with each other as to the progress of the matter and that there was a free flow of information between the parties – which is commendable

[20] It is also quite apparent that Mosuwe was indeed unfamiliar with the process. For example in an e-mail dated 19 February 2013 he writes:

‘Happy Tuesday Johanette,

Thank you very much for the feedback

I have not been involved in a case up to the Labour Court, this is also a learning curve to me and do bear with me’.

[21] On 3 May 2013, Mosuwe writes:

‘Happy Friday Johanette,

Thank you very much.

Is the matter been (sic) opposed by the first and second respondents and when are we likely to go to court?’

[22] And on 6 May 2013, Rheeder replies:

‘Dear Simon

The CCMA and the commissioner did not oppose. Yes, unless Consol is prepared to make a settlement offer, the matter will proceed to court’.

[23] I am thus quite prepared to accept that Mosuwe was initially under the misapprehension that the Council would attend to the opposition of the matter. I say initially because, in an e-mail to Mosuwe dated 8 May 2013, Rheeder writes:

Please note the documents were delivered to Consol yesterday. Your 10 days to file an opposing affidavit started yesterday’.

[24] The opposing affidavit was signed on 27 June and, it would appear, was delivered the following day.

[25] Mosuwe does not offer any explanation for the time period between 8 May 2013 and 27 June 2013, alleging only in the broadest terms that the matter was referred to Consol’s Attorneys upon receipt of the notice of set down.

[26] No explanation is tendered as to why Rheeder’s e-mail specifically drawing his attention to the fact that the dies had commenced running was effectively ignored. I find this strange in light of the nature of the communication between the parties to this point. Surely it is reasonable, accepting that Mosuwe is unfamiliar with the process, to expect him to seek clarity from Rheeder or to take some steps to follow up with the Council (given that he was under the impression that they would be taking some steps in the matter). However, the conversation seems to dry up at this point.

[27] The test for condonation as set out in Melane v Santam Insurance Co Ltd[5] has become well known and has been applied time and time again by this Court.

[28] The matter of NUM v Council for Mineral Technology[6] provides further insight to the condonation process. In that matter the Labour Appeal Court held that:

‘…The approach is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. These facts are interrelated; they are not individually decisive. What is needed is an objective conspectus of all the facts. A slight delay and a good explanation may help to compensate for prospects of success which are not strong. The importance of the issue and strong prospects of success may tend to compensate for a long delay. There is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused (cf Chetty v Law Society, Transvaal 1985 (2) 756 (A) at 765A–C; National Union of Mineworkers & others v Western Holdings Gold Mine(1994) 15 ILJ 610 (LAC) at 613E)’.

[29] The approach in NUM that in the absence of an acceptable explanation for the delay, prospects of success (and, it would seem, considerations of prejudice as well) need not be considered has been followed regularly by both this Court and the Labour Appeal Court[7].

[30] It is further trite that an applicant for condonation must explain each and every period of delay[8].

[31] While I am prepared to accept the explanation for the delay up to 8 May 2013, no explanation is tendered as to why, after being made aware of the commencement of the ten day time period, Mosuwe only signed the affidavit on 27 June 2013. The dies were specifically drawn to his attention and I believe that it is reasonable to expect that he would take some form of action upon

receipt of this e-mail.

[32] I am in agreement with Mr. Boswell, who appeared for Nziana, that the period of delay is significant. It is also apparent that it caused the matter to be set down as unopposed, necessitating the removal from the unopposed roll upon delivery of the opposing affidavit.

[33] Accordingly, I find that Consol has failed to tender a reasonable explanation for the delay in delivering their opposing affidavit. It is thus not necessary to consider prospects of success and the application for condonation fails.

[34] I accordingly take no further cognisance of the opposing affidavit.

Grounds for review

[35] In the founding and supplementary affidavits, Nziana makes several sweeping statements regarding the basis upon which he challenges the award.

[36] However, in his heads of argument he deals with the grounds for review under four headings:

Failure to explain arbitration process

Process irregularity at arbitration

Failure to determine real issue

Failure to consider factual disputes

I will deal with each of these individually.

The arbitrator’s alleged failure to explain the arbitration process

[37] This aspect does not appear to have any basis in either the founding or supplementary affidavits. It is raised for the first time in Nziana’s heads of argument.

[38] It has been the view of this Court on several occasions that such an approach is impermissible[9].

[39] My view is that the factual basis for such an allegation should have been laid in either the founding or supplementary affidavits. A case in this regard simply cannot be made out in heads of argument.

[40] However, even if I am wrong in this respect and the Court were to have regard to this ground of review it is apparent from the record that Nziana conducted the arbitration with little difficulty.

[41] In fact the Arbitrator, on at least two occasions, does in fact offer Nziana assistance[10] in that the process is clarified for him. Nziana appears quite comfortable with the process and at no stage does he indicate uncertainty or that he is having any difficulties in conducting his case.

[42] While I certainly accept that there is a duty on an arbitrator to assist lay persons in the arbitration process[11], I do not find that the Arbitrator in the present case did not do so – certainly not to the extent that such would amount to a gross irregularity.

This ground of review must therefore fail.

The alleged process irregularities

[43] In this regard Nziana alleges firstly that the arbitrator essentially prevented him from properly cross examining Magatikele, who gave evidence for Consol[12] and secondly alleges that he was prevented from handing in certain documents at the conclusion of the arbitration.

[44] Again no basis is laid for the second issue in the founding or supplementary affidavit and, for the same reasons as above. I do not consider this issue further. Again if I am wrong in this approach I can find no fault with the Arbitrator refusing to accept various documents at the close of the proceedings. This certainly does not amount to a gross irregularity.

[45] However, the issue of the cross examination of Magatikele is cause for concern.

[46] If regard is had to the transcript[13] it is apparent that Magatikele completes his examination in chief and Nziana commences cross examination.

[47] Nziana asks questions regarding Magatikele having apparently suggested that he resign at which point the Arbitrator intervenes[14], asking;

‘Sorry. Sorry. The purpose of the question, can you just help me, Sir?’

[48] Thereafter follows some discussion between the Arbitrator and Nziana culminating in the Arbitrator asking Nziana several questions

relating to the reason for his dismissal. This discussion seems to conclude with the Arbitrator excusing Magatikele, and commencing with Nziana’s version, stating[15]:

‘Well I am going to give you that opportunity to do so now. Thank you, Sir. You are excused. You are welcome to sit through this process, if you so wish’.

[49] Nziana then gives his evidence however, a further critical exchange takes place a short while later, which is recorded as follows:

‘COMMISSIONER: What comment have you got to what was said by the previous witness? The General Manager?

MR NZIANA: He said a couple of things. I had questions lined up for him. Basically to basically question him so that you understand what was happening. Because I got, I had a lot of questions. As you can see

COMMISSIONER: I see.’

[50] Mr. Boswell submitted that Magatikele was a key witness and that lengthy reference to his evidence was made in the award.

[51] Mr. Hutchinson, appearing on behalf of Consol, however, submitted that the ultimate decision remained reasonable and that any perceived irregularity had not affected the result.

[52] In light of the totality of evidence led, I am inclined to agree with Mr. Hutchinson to a degree that the outcome may well have remained the same had Magatikele been effectively cross examined. The evidence against Nziana was, with respect to him, substantial. Much of the evidence was not challenged and it was apparent to the arbitrator, as it is to this Court, that Nziana’s performance was not up to the required standard and that numerous attempts had been made to correct this.

[53] However, the concern which I have is that there appears to have been a fundamental flaw in the process of the arbitration in that Nziana was clearly denied the right to properly cross examine a critical witness.

[54] The question is whether, this amounts to a reviewable defect in terms of the current authority on this point. This is the question that has caused this judgment to be delivered some time later than originally anticipated, however, it is of the utmost importance that this aspect is properly canvassed.

[55] In short, we are back to a “process related” review.

[56] The matter of Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others[16] (which incidentally also dealt with the distinction between poor performance and misconduct and which was referred to by Counsel on this basis) is most instructive on this issue, the Labour Appeal Court holding that[17]:

“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 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 ground 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 a failure by the arbitrator to consider all or some of the issues albeit material as rendering the award liable to be set aside on the grounds of process related review”.

The Court continued to state that:

“…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 give the parties a full opportunity to have their say in respect of the dispute? (ii) Did the arbitrator identify the dispute he or she was required to arbitrate? ( this may in certain cases only become clear after both parties have led their 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? (v) Is the arbitrator's decision one that another decision maker could reasonably have arrived at based on the evidence?”.

[57] This approach follows the now famous case of Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[18] as well as the decision of the Constitutional Court in CUSA v Tao Ying Metal Industries and Others[19].

[58] In Pam Golding Properties (Pty) Ltd v Erasmus and Others[20] the Court held that:

‘It might be inferred from the Sidumo line of reasoning that in an application for review brought under s 145, process related conduct by a commissioner is not relevant, and that the reviewing court should concern itself only with the record of the arbitration proceeding under review and its result. I do not understand the Sidumo judgment to have this consequence. Section 145 of the Act also invites a scrutiny of the process by which the result of an arbitration proceeding was achieved, and a right to intervene if the commissioner's process related conduct is found wanting. Of course, reasonableness is not irrelevant to this enquiry - the reasonableness requirement is relevant to both process and outcome…’.

[59] Process related reviews came under the spotlight in Herholdt v Nedbank Ltd[21] and in light thereof, it is important to consider whether these comments are still of relevance. Notably it was confirmed in both

Sidumo and Herholdt that the reasonableness requirement does not replace Section 145(2) of the LRA but suffuses it with the constitutional standard of reasonableness. Certainly there is now a wealth of authority on this point[22].

[60] In interpreting this, Snyman, AJ states as follows in Baur Research CC v Commission for Conciliation, Mediation and Arbitration and Others[23]:

What this means is that where it comes to an arbitrator acting ultra vires his or her powers or committing misconduct that would deprive a party of a fair hearing, the issue of a reasonable outcome is simply not relevant. In such instances, the reviewable defect is found in the actual existence of the statutory prescribed review ground itself and if it exists, the award cannot be sustained, no matter what the outcome may or may not have been. Examples of this are where the arbitrator should have afforded legal representation but did not or where the arbitrator conducted himself or herself during the arbitration in such a manner so as to constitute bias or prevent a party from properly stating its case or depriving a party of a fair hearing ... (footnotes omitted)

[61] Further guidance in this regard may be found in Naraindath v commission for Conciliation, Mediation and Arbitration and Others[24] in which the Court stated as follows:

In my view it is perfectly clear in these circumstances that a complaint that a commissioner has conducted proceedings in a way which differs from the way in which the same dispute would be dealt with before a court of law cannot as such succeed. It is only where the person seeking to challenge the commissioner’s award can point to specific unfairness arising from that action by the commissioner that a proper ground for review is established. A failure to conduct arbitration proceedings in a fair manner, where that has the effect that one of the parties does not receive a fair hearing of their case, will almost inevitably mean either that the commissioner has committed misconduct in relation to his or her duties as an arbitrator or that the commissioner has committed a gross irregularity in the conduct of the arbitration proceedings.

[62] It is my view that the requirement of reasonableness (coupled with the constitutional requirements of lawfulness and procedural

fairness) applies to both process and outcome, as observed by this Court in Pam Golding Properties[25] and as identified by the Labour Appeal Court in Goldfields[26] by posing the question:

‘... did the process that the arbitrator employ give the parties a full opportunity to have their say in respect of the dispute?’

[63] It is at this point that I diverge from the submission of Mr. Hutchinson that the result would have been the same, had the cross examination not been cut short.

[64] It is my finding that Nziana did not receive a fair hearing and accordingly it becomes irrelevant whether or not the outcome would have remained the same. It is clear from the record that he still had questions to ask of Magatikele and it is my view that the failure to allow Magatikele’s evidence to be fully tested under cross examination amounts to a gross irregularity as contemplated by Section 145(2) of the LRA.

[65] To the extent that this approach may be criticised as an attempt to revive the standard of review set out by the Labour Appeal Court in Herholdt v Nedbank Ltd[27] which was expressly overruled by the Supreme Court of Appeal, my view is that the requirement that an award be one which a reasonable

decision maker could reach surely implies that the process followed by the decision maker must also be reasonable. This view is supported by the authority referred to above.

[66] If it is not, then the outcome is not one which a reasonable decision maker could reach.

[67] The curtailing of cross examination in this instance was not a minor issue – or one which “may have led to a different

result”. To my mind the failure goes deeper than that in that it resulted in a failure of justice per se. It renders the award one which a reasonable arbitrator could not reach and satisfies the test for review expounded in Sidumo and the other authority referred to.

On this basis the application must succeed.

The arbitrator’s alleged failure to determine the real issue

[68] In this respect it was submitted on behalf of Nziana that the real dispute was performance related and not conduct related. Indeed much of the evidence led at arbitration appears to revolve around performance.

[69] The allegation is made in the founding affidavit[28] that the Arbitrator dealt with the matter as one of misconduct, when the true issue was performance.

[70] However, Nziana himself, in his referral form categorised the dispute as one of misconduct[29].

[71] It may well be that Consol should have dealt with the matter as one of incapacity, based upon poor performance however, that is not for the Court to decide. The fact of the matter is that Nziana was dismissed, fairly or unfairly, for reasons related to his conduct.

[72] He does not challenge procedural fairness in that he does not attack the disciplinary process, his challenge being limited to substantive fairness[30].

[73] It is not disputed that Nziana was a senior employee and accordingly, a greater degree of responsibility is expected of him.

[74] I have already found that the evidence regarding his poor performance was, with respect to him, substantial. All three of Consol’s

witnesses testified to this and very little was meaningfully challenged by Nziana. (Obviously the failure to challenge Magatikele’s evidence cannot be held against him).

[75] There was also evidence led that, despite not following the performance review process, there was regular follow up and feedback

provided to Nziana with respect to his performance And that Consol made a concerted effort to assist him – for example by

providing him with a mentor and by transferring him to a stronger team.

[76] It is however, apparent from the evidence led that he was resistant to this, believing himself to be above the need for help and the victim of “politics”.

[77] Clearly the issues of performance and conduct are intertwined. It is generally held that the difference between them is the question of an employee’s culpability. If an employee is unable to do his job – through no fault of his own, it is incapacity. However, if he is able to perform but does not, there is an element of fault present which renders it misconduct.

[78] Rightly or wrongly in this instance Consol viewed it as misconduct. Their view is captured by the Arbitrator as follows[31]:

‘The complaints surrounding the Applicant (ie Nziana) had to do with that there was no urgency, no discipline nor any leadership. The Applicant was not committed, there was no guidance and the Applicant when confronted, showed elements of arrogance and insolences and that he did not require any help’.

[79] In addition, the evidence of Consol’s witnesses, specifically Johan Pelzer (“Pelzer”) and Magatikele was that numerous attempts were made to assist Nziana in improving his performance but that he resisted these. The submission by Mr. Hutchinson was that Nziana, as a manager, refused to accept any responsibility for his conduct and proved himself to be “beyond redemption”.

[80] As set out above, the Sidumo[32] decision has made it clear that Section 145 of the LRA is suffused by the constitutional standard of reasonableness[33]. The “test” for review has become whether the decision of the arbitrator is one which a “reasonable arbitrator”

could not reach.

[81] Similarly in Herholdt[34] it was held that:

‘…A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator

must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable’.

[82] That dismissal for poor performance and for misconduct are distinct concepts was dealt with by the Labour Appeal Court in Goldfields Mining[35] in which it was held that the Commissioner in that case had committed a gross irregularity by dealing with the matter as one of poor performance when, in fact, it was one of misconduct.

[83] Guidance is again provided in CUSA[36] in which the Court held that:

‘Consistent with the objectives of the LRA, commissioners are required to 'deal with the substantial merits of the dispute with the minimum of legal formalities'. This requires commissioners to deal with the substance of a dispute between the parties. They must cut through all the claims and counter-claims and reach for the real dispute between the parties. In order to perform this task effectively, commissioners must be allowed a significant measure of latitude in the performance of their functions. Thus the LRA permits commissioners to 'conduct the arbitration in a manner that the commissioner considers appropriate'. But in doing so, commissioners must be guided by at least three considerations. The first is that they must resolve the real dispute between the parties. Second, they must do so expeditiously. And, in resolving the labour dispute, they must act fairly to all the parties as the LRA enjoins them to do’.

[84] It is my view that the Arbitrator indeed resolved the real dispute between the parties, did so expeditiously and (in this respect at least) acted fairly to both parties.

[85] On the facts of this matter, specifically that Nziana himself categorised the dispute as one of misconduct, the decision in

Goldfields[37] in this respect is distinguishable.

[86] However, even if I am wrong on this aspect and Nziana is correct that the Arbitrator misconceived the nature of the enquiry, it would appear that the enquiry does not end there. It is also clear that the reviewing Court must consider whether the outcome is, nonetheless reasonable on a consideration of the record.

[87] Accordingly, even if it is correct that the Commissioner should have considered this matter on the basis of performance, the outcome would not have been any different and the award remains (in this respect at least) one which a reasonable arbitrator could make.

I accordingly find that this challenge to the award must fail.

The arbitrator’s alleged failure to consider factual disputes

[88] Nziana’s challenge to the factual findings is that Consol in essence failed to discharge the onus of proving his dismissal to have been fair. The allegation that follows is that the Arbitrator incorrectly found that he was in fact guilty of misconduct as well as poor performance.

[89] It is obvious that the onus of proving the fairness of the dismissal fell on Consol[38].

[90] Regarding performance, I have already expressed my view that the evidence of Nziana’s poor performance was substantial.

[91] Evidence was further led that Nziana’s conduct at the meeting of 7 May was viewed as insolent and that as a result disciplinary

action was taken. Nziana’s evidence was in essence that he was dismissed for political reasons. However, he does little to challenge the evidence of Consol’s witnesses regarding his conduct.

[92] While the Arbitrator’s reasons are terse to say the least, it is clear from his recordal of the evidence why he preferred the version of Consol. His statement that Nziana had failed to rebut this evidence does not lead to any conclusion that he misunderstood the onus or such.

[93] In my opinion it simply indicates his view that Consol had discharged the onus of proof and that Nziana had failed to discharge the evidentiary burden on him to rebut the evidence of Consol.

[94] Once again, I am of the view that the Arbitrator committed no reviewable irregularity in this respect.

Conclusion

[95] While there is nothing to suggest bias or mala fides on the part of the arbitrator, this is not required. However the fact remains that Nziana was, in my view, denied a fair hearing of the matter and it is on this basis alone that the application for review must succeed.

[96] It is not my place to pronounce on the correctness or otherwise of the ultimate decision made by the Arbitrator, nor on the likelihood of a different decision in a de novo hearing.

[97] In light of this it is obviously not appropriate for the Court to substitute the Arbitrator’s finding. This is a matter in which, despite a lengthy period of time having passed, remittal is the correct course of action.

Costs

[98] This application has succeeded for the sole reason that Nziana was denied a fair hearing however I do not believe that Consol acted unreasonably in opposing the matter.

[99] Accordingly I do not believe that a costs order is warranted.

Order

[100] Accordingly, I make the following Order:

i. Condonation for the late filing of the answering affidavit is refused;

ii. The arbitration award issued by the Second Respondent on 11 October 2012 under case number GPCHEM498-11/12 is reviewed and set aside;

iii. The matter is remitted to the First Respondent for hearing de novo before an arbitrator other than the Second Respondent;

iv. There is no Order as to costs.

____________________

Morgan, AJ

Acting Judge of the Labour Court of South Africa.

APPEARANCES

For the Applicant: Adv. A. Boswell

Instructed by: Johanette Rheeder Inc

For the Respondent: Adv. W.J. Hutchinson

Instructed by: Fluxmans Inc

[1] Opposing affidavit paragraph 6.1 – 6.2

[2] Opposing affidavit paragraph 6.3

[3] Opposing affidavit paragraph 7.4

[4] Replying affidavit paragraphs 4 – 12; Court file pages 104 – 116

[5] 1962 (4) SA 531 (A)

[6] [1999] 3 BLLR 209 (LAC) at para 10.

[7] See Collet v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 1948 (LAC); SA Transport and Allied Workers Union and Others v Nationwide Airlines (Pty) Ltd and Another (2013) 34 ILJ 1612 (LC);

[8] See NUMSA and Another v Hillside Aluminium [2005] 6 BLLR 601 (LC)

[9] See Northam Platinum Ltd v Fganyago N.O. and Others (2010) 31 ILJ 713 (LC); Brodie v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 608 (LC)

[10] Record page 4, lines 12 – 19; Record page 45, lines 21 – 24

[11] See Consolidated Wire Industries (Pty) Ltd v CCMA and Others (1999) 20 ILJ 2602 (LC); Klaasen v CCMA and Others (2005) 26 ILJ 1447 (LC);

[12] Founding affidavit paragraph 5.9; supplementary affidavit paragraph 3.17

[13] Record page 45 line 19

[14] Record page 46 line 24 – page 47 line 1

[15] Record page 50 lines 18 – 20

[16] (2014) 35 ILJ 943 (LAC)

[17] At paras15 and 20.

[18] [2007] 12 BLLR 1097 (CC).

[19] (2008) 29 ILJ 2461 (CC)

[20] (2010) 31 ILJ 1460 (LC) at para 5.

[21] (2013) 34 ILJ 2795 (SCA)

[22] Cf Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at 96; National Commissioner of the South African Police Service v Myers and Others (2012) 33 ILJ 1417 (LAC) at 41

[23] (2014) 35 ILJ 1528 (LC) at 18

[24] (2000) 21 ILJ 1151 (LC) at 27; see also Baur Research Supra at 19; County fair foods (Pty) Ltd v Theron N.O. and Others (2000) 21 ILJ 2649 (LC) at 7; Mollo v Metal & Engineering Industries Bargaining Council and Others (2010) 31 ILJ 971 (LC) at 32; National Union of Security Officers & Guards and Another v Minister of Health & Social Services (Western Cape) and Others (2005) 26 ILJ 519 (LC) at 16 – 17; Raswiswi v Commission for Conciliation, Mediation and Arbitration and Others (2011) 32 ILJ 2186 (LC) at 20; ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman N.O. and Others (2013) 34 ILJ 2347 (LC) at 38 – 39; Chabalala v Republic Transmissions and Others

[25] Supra

[26] Supra

[27] (2012) 33 ILJ 1789 (LAC)

[28] At paragraphs 5.3 – 5.4

[29] Court file pages 21 and 23

[30] Although reference was made to him challenging the performance review process – which it seems to be accepted was not followed.

[31] Court file page 18

[32] Supra

[33] Section 33 of the Constitution provides inter alia that one is entitled to administrative action that is lawful, reasonable and procedurally fair. See also Bato Star Fishing Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (7) BCLR 687 (CC) (also reported at 2004 (4) SA 490 (CC)).

[34] Supra

[35] Supra

[36] CUSA at para 65.

[37] Supra

[38] Section 188 of the LRA 1995 (as amended).