Passenger Rail Authority of South Africa v Tale N.O and Others (JR272/21) [2023] ZALCJHB 199 (29 June 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

NOT REPORTABLE

CASE NO: JR 272 / 21

In the matter between:

PASSENGER RAIL AUTHORITY OF SOUTH AFRICA Applicant And JULES MCGILLAVRAY-TALE N.O. (AS ARBITRATOR) First Respondent COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Second Respondent THINAMANO NETSHIVHAMBE Third Respondent

Heard: 23 May 2023

Delivered: 29 June 2023

Summary: CCMA arbitration proceedings – Test for review considered –appropriate review test that of the existence of an irregularity and unreasonable outcome

Dismissal – evidence considered – evaluation of evidence by arbitrator reasonable and justified – findings of arbitrator on the evidence reasonable – no basis to interfere with findings of fact by arbitrator

Dismissal – insubordination – principles considered – no evidence that employee was insubordinate – employer failing to make out case of such misconduct – finding by arbitrator that no such misconduct exists reasonable and upheld

Dismissal – trust relationship – evidence confirming the continued existence of trust relationship – dismissal would be entirely unjustified – findings of arbitrator upheld

Dismissal – procedural unfairness – excessive and unexplained delay in finalising disciplinary proceedings – findings of arbitrator on procedural unfairness reasonable and upheld

CCMA arbitration proceedings – no case for review made out – award upheld – review application dismissed

JUDGMENT

SNYMAN, AJ

Introduction

[1] This matter concerns an application by the applicant to review and set aside an arbitration award handed down by the first respondent in his capacity as an arbitrator of the Commission for Conciliation, Mediation and Arbitration (CCMA), being the second respondent. In terms of this award, the first respondent found that the dismissal of the third respondent by the applicant was substantively and procedurally unfair. Consequently, the first respondent then afforded the third respondent relief in the form of reinstatement

retrospective to the date of her dismissal, with back pay in the sum of R126 052.00, being an amount equivalent to four months’

salary. The review application has been brought in terms of Section 145 of the Labour Relations Act (LRA)[1].

[2] The third respondent had been dismissed by the applicant on 9 September 2020 for misconduct. Dissatisfied with being dismissed, the third respondent referred an unfair dismissal dispute to the CCMA. This dispute then came before the first respondent for arbitration on 26 November 2020, leading to the aforesaid arbitration award.

[3] The arbitration award was handed down by the first respondent on 10 December 2020. The applicant served and filed its review application on 11 February 2021, which is outside the six weeks’ time limit prescribed by section 145(1) of the LRA, which time period expired on 22 January 2021. The applicant’s notice of motion in its review application however did contain a prayer seeking condonation for such late review application, and this prayer was substantiated in the founding affidavit.

[4] The principles applicable to an applicant seeking condonation are trite, and summarized in Melane v Santam Insurance Co Ltd[2]. Considering the length of the delay, as the first issue for consideration, the delay is just short of three weeks. This is not an unduly lengthy delay, and the kind of delay that would mitigate in favour of the granting of condonation.

[5] As to the explanation for the delay, the applicant firstly relies on the intervening December holiday season as an explanation for part of the delay. It is explained that when the award was received on 10 December 2020, the manager responsible for approving legal proceedings was already on holiday and only retuned in January 2021. Once the manager returned, motivation had to be provided for the prospects of success of the review application, and then, after considering these motivations, the manager signed approval for review proceedings to be brought, on 22 January 2021. I am satisfied with this part of the explanation. It relies on a state of affairs which is understandable, considering what often happens in most undertakings at this particular time of the year.[3] I am also satisfied that the applicant did not unduly delay once the manager returned from leave.

[6] The remaining part of the delay is explained by way of the reliance on the applicant’s internal bureaucratic processes which must be complied with before any litigation is launched. This is also linked to the prescribed procurement processes being complied with, because an external service provider (the attorneys) must be appointed to bring the case to Court. This accounts for a total delay of about three weeks. In this regard, and after approval was obtained for the review application as aforesaid, the legal department of the applicant was required to approach five attorneys on the applicant’s panel of attorneys for quotes, following which an attorney was appointed, who then immediately attended to the review application. This explanation is in my view acceptable, and the time taken for quotes, giving of instructions, then drafting and filing of the review application, is well within the parameters of what could be seen to be a reasonable period.

[7] I am therefore convinced that the applicant has provided a proper explanation for what is not an unduly lengthy delay in this case. Despite opposing the condonation application in her answering affidavit, the third respondent, when this matter was argued, indicated that she no longer takes issue with the condonation application and does not oppose the same. This is therefore a case where it would be in the interest of justice and fairness that condonation be granted, so that the merits of the applicant’s review application can be considered. I will now proceed in deciding the applicant’s review application, commencing with setting out the relevant background facts for consideration.

The relevant facts

[8] The applicant conducts business as the country’s passenger rail authority, responsible for providing rail transport services to the general public. The applicant is a State-owned enterprise (SOE). The third respondent was employed by the applicant as an electrical fitter and commenced service with the applicant on 18 April 2012.

[9] On 10 May 2018, the third respondent was on duty. On that day, the applicant required that a railway coach, identified as coach 9141, be disconnected from the tracks so that repairs could be conducted to it. The disconnection of a coach is a task that is below the pay grade of the third respondent. But nonetheless, it was common cause that this is a task that she could perform, and was required to perform, if instructed to do so.

[10] On 10 May 2018 at about 07h30, the third respondent’s supervisor, Patrick Muronga (Muronga) instructed the third respondent, together with three of her colleagues, being Alfred Nteo (Nteo), Zulu Mathe (Mathe), and Pumelele Kgadebe (Kgadebe), to attend to disconnecting coach 9141. They were so instructed because there was a staffing issue at the time, with the employees that would ordinarily attend to such task being engaged at a meeting with their trade union, UNTU.

[11] It was common cause that this instruction was given to the third respondent, that it was a lawful and reasonable instruction, and that the third respondent was required to comply with the same. It is also common cause that ultimately, the third respondent did not disconnect coach 9141 from the tracks.

[12] There exists a material factual dispute as to what caused coach 9141 not to be disconnected from the tracks. This is where the heart of this matter lies. In essence, it was the case of the third respondent that she never refused to comply with the instruction of Muronga and that it was his conduct that prevented her from completing the work, whilst the applicant contended that it was the third respondent that refused to carry out Muronga’s instruction because the work was, according to her, below her grade.

[13] According to the third respondent, she received the instruction from Muronga sometime after 07h30, she then collected her tools and PPE, and began working on the coach at about 08h00. This was a job that would take about 1 – 2 hours to complete. However, and at about 08h10, Muronga aggressively confronted the third respondent and her colleagues, whilst they were working on the coach, and accused them of refusing to carry out his instructions. He then instructed them to come to his office. The third respondent also contended that in his office, Muronga refused to listen to any explanation and also refused to allow them to call a shop steward to assist them. Then, and before the third respondent and her colleagues could return to completing their work on the coach, they were called to the boardroom where Jane Moeketsi (Moeketsi) issued them with charge sheets. Moeketsi was the production manager to whom Muronga reported. According to the third respondent, Moeketsi also refused to listen to any explanation. The third respondent and her colleagues then left to complete the work on coach 9141, but were instructed by Muronga not to touch the coach, saying it would be evidence in their disciplinary hearings.

[14] The applicant’s version was principally presented by way of the testimony of Muronga. His testimony was the same as that of the third respondent where it came to the giving of the instruction. However, and according to Muronga, he was contacted by Nteo at about 09h30, who informed Muronga that they (the four employees referred to above) would not disconnect the coach from the tracks because it was not part of their job descriptions. Muronga then called the employees to his office to resolve the problem, and asked the employees to bring a shop steward with them, which they declined to do. According to Muronga, and in his office, the employees (including the third respondent) again refused to disconnect the coach from the tracks because it was below their grade. Muronga then again told the employees to go and disconnect the coach from the tracks, but he then later found them simply standing around the coach and not working on it. That is when Muronga contacted Moeketsi to brief her on the events, and the employees were then called to the boardroom. Moeketsi also instructed them to carry out the work, asked for an explanation why they could not, and they again said they would not carry out an instruction that was below their grade. It is then that Moeketsi issued them with

charge sheets.

[15] What is common cause is that Moeketsi, in the site boardroom on 10 May 2018, did present all the employees (including the third respondent) with charge sheets, containing three charges. These charges were, as contained in the charge sheet given to respondent, the following:

‘1) Serious Misconduct: in your capacity as an Electrical Fitter on 10 May 2018 at 08h10 you refused to disconnect one traction motor on MC 9141 as requested by your Technical Supervisor Mr P Muronga,

2) Misconduct: Insubordination in that in your capacity as an Electrical Fitter on 10 May 2018 at 08h10 you refused to disconnect one traction motor on MC 9141 as requested by your Technical Supervisor Mr P Muronga.

3) Misconduct: Operation Sabotage in that in your capacity as an Electrical Fitter on 10 May 2018 at 08h10 you refused to disconnect one traction motor on MC 9141 as requested by your Technical Supervisor Mr P Muronga.’

[16] Of some importance in casu, the disciplinary hearing was not immediately convened. Further, the third respondent was never suspended, and remained on duty pending the finalisation of the disciplinary hearing, and continued to work under and reported to Muronga. There was no evidence of any further incidents between the third respondent and Muronga after 10 May 2018.

[17] The applicant’s disciplinary rules and processes are determined by a collective agreement, headed ‘Disciplinary Code and Procedure Agreement’, which became effective as from 1 January 2004 (the disciplinary code). In terms of the disciplinary code, a disciplinary hearing must be concluded within 30 days after the incident giving rise to the misconduct was brought to the attention of the applicant’s management. The disciplinary code however does provide that application can be made to the relevant executive / regional manager’s office to extend this period, subject to providing legitimate and substantive grounds for the delay. In a memorandum dated 6 September 2004, the regional manager for Wits Metrorail indicated that the application for extension must be made before the 30 days’ time limit expires.

[18] The disciplinary hearing for the third respondent only took place on 9 September 2020, which is two years and four months after she was first issued with a charge sheet. It is however true that the applicant applied for an extension of the 30 days’ time limit on 15 May 2018, and this was approved. There was no time limit imposed for this extension, and the disciplinary code does not provide for a further time limit.

[19] On 9 September 2020, the third respondent was also advised of the outcome of the hearing. She was found guilty only of one of the three charges, being the charge of insubordination. On the same day, she was also informed of her dismissal on this charge.

[20] On the same day (9 September 2020) the third respondent referred an unfair dismissal dispute to the CCMA. This dispute ultimately came before the first respondent for arbitration on 26 November 2020. This arbitration then led to the arbitration award dated 10 December 2020, which is the subject matter of this review application.

The test for review

[21] The test for review is trite. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,[4] the Court held that ‘the reasonableness standard should now suffuse s 145 of the LRA’, and that the threshold test for the reasonableness of an award was: ‘… Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?...’[5]. This means that the award in question is tested against the facts before the arbitrator to ascertain if it meets the requirement of reasonableness.[6] In conducting this test it is always necessary and important for the Court to enquire into and consider the merits of the matter and the entire evidence on record in deciding what is reasonable.[7] In Herholdt v Nedbank Ltd and Another[8] the Court said:

‘… 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 consequence if their effect is to render the outcome unreasonable.’

[22] Based on the aforesaid, the first enquiry is to establish if there a failure or error on the part of the arbitrator. Second, and where there is such a failure or error, it must be shown that the outcome arrived at by the arbitrator was unreasonable. It would only be if the consideration of the evidence and issues before the arbitrator shows that the outcome arrived at by the arbitrator cannot be sustained on any grounds, and the irregularity, failure or error concerned is the only basis to sustain the outcome the arbitrator arrived at, that the review application would succeed.[9] As said in Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others[10]:

‘…. the reviewing court must consider the totality of evidence with a view to determining whether the result is capable of justification. Unless the evidence viewed as a whole causes the result to be unreasonable, errors of fact and the like are of no consequence and do not serve as a basis for a review.’

[23] Against the above principles and test, I will now proceed to consider the applicant’s application to review and set aside the arbitration award of the first respondent.

Analysis

[24] The only misconduct the third respondent was found guilty of by the applicant is the insubordination charge, and it is thus this charge that constituted the reason for her dismissal by the applicant. It is true that in his award, the first respondent did not expressly record or determine that the third respondent was not guilty of this change, or in other words, find per se that she was not insubordinate. Whilst it may be so that it would have preferable if the first respondent had done so, this cannot be fatal to his award. It is clear from his award that the first respondent considered the evidence relating to the insubordination charge, and then concluded that the dismissal of the third respondent for this reason was substantively unfair. The question is whether this conclusion continues a reasonable outcome.

[25] Two witnesses testified for the applicant in the arbitration. These witnesses were Muronga, and Nkosana Molape (Molape) who was an acting technical supervisor sharing an office with Muronga at the time. The applicant did not call Moeketsi or any witness responsible for the disciplinary proceedings against the third respondent to testify. Muronga and Molape testified as to the applicant’s version of events, as summarized under the background facts above. The first respondent considered their evidence, and made a number of credibility findings relating to the same. He found that there were material discrepancies between their evidence relating to important individual events. He similarly considered the evidence presented by the third respondent and her witness, Ntombi Mathe (Mathe), and held they corroborated one another. It is clear to me that the first respondent preferred the evidence presented by the third respondent and Mathe, over that of Muronga and Molape, in coming to the conclusion that he did.

[26] Insofar as the first respondent thus indeed made credibility findings in favour of the third respondent, this Court on review would be disinclined to interfere with the same, unless such credibility findings were obviously and materially out of kilter with or irreconcilable with the evidence as it appears from the record.[11] Again, as a general proposition, I have considered the record, and am unable to conclude that the first respondent, in preferring the evidence of the third respondent, committed any kind of reviewable irregularity. It is first respondent’s job to decide which evidence to prefer, and the applicant has not made out a case that the first respondent did not properly and reasonably carry out this job. This constitutes a significant obstacle to the success of the applicant’s review application.

[27] The above being said, I am in any event satisfied that the first respondent’s adverse views on the credibility of Muronga and Molape were certainly reasonable. Firstly, and immediately, the charge sheet itself records that the third respondent refused to obey the instruction at ‘approximately 08h10’ which materially contradicts Muronga’s testimony that he was only informed at about 09h30 about this refusal. Muronga, alive to this obvious difficulty, then sought to explain that it only takes 10 minutes to disconnect the coach, which is why the time of 08h10 is referred to in the charge sheet. This explanation is obviously false, not only considering the clear wording of the charge, but also considering the only evidence before the first respondent was that it took at least an hour to do this work and that it is impossible to do this in 10 minutes. A consideration of the transcript further shows an improbability in the testimony of Muronga where it came to the time when the charge sheets were issued to the employees, and his evidence in this regard was contradicted by Molape. Molape was unable to corroborate anything that transpired between the employees and Muronga in the board room, or when they left the board room, despite it being suggested in the testimony of Muronga that he would do so.

[28] When considering the testimony of the third respondent and Mathe, I am convinced that their respective testimonies corroborated each other in all material respects, especially where it comes to the individual events on 10 May 2018. This was indeed accepted by the first respondent to be the case, in his award. Both these witnesses also fared well under cross examination and stood by their versions. I accept that there were some discrepancies between the third respondent and Mathe where it came to the precise time when they were first confronted by Muronga, but this was in my view not material. The fact is that they both corroborated each other as to what happened on the day, including that they did not refuse to carry out any instructions, and that they simply did not have nearly enough time to complete the work on coach 9141 before Muronga summed them to his office. All the material aspects of the third respondent’s version in this regard was also fully put to Muronga under cross-examination to respond to. It should also be considered that Muronga’s own evidence corroborated the fact that the employees left just before 08h00 to start working on the coach. There is simply no feasible reason not to prefer their testimony, which the third respondent rationally and reasonably did.

[29] The first respondent also relied on other considerations in rejecting the case of the applicant. He referred to the fact that despite being important players in all the events on 10 May 2018 on its own version, the applicant never called Moeketsi and Nteo to testify.

According to the first respondent, the evidence of Moeketsi was important where it came to the events in the boardroom on 10 May

2018. The first respondent then drew a negative inference from the applicant’s failure to call these witnesses to testify,

especially considering the directly contradictory versions of the parties relating to the events on the day and what the applicant

needed to prove. The first respondent cannot be faulted for this approach. It is trite, as said in ABSA Investment Management Services (Pty) Ltd v Crowhurst[12]:

‘... it is long established that the failure of a party to call an available witness may found an adverse inference, the inference being that the witness will not support - and may even damage - that party's case. Compare Zeffertt et al SA Law of Evidence (5 ed) at 128-30’.

[30] From a proper assessment and determination of the evidence, the following simple conclusions of fact must follow. The third respondent and her colleagues did proceed on 10 May 2018 to carry out the instruction by Muronga to disconnect coach 9141 from the tracks. They had only been busy with this work for a short time, when Murongo simply accused them of refusing to carry out his instructions, and then prevented them from finishing the work. It is clear that the third respondent (and her fellow employees) were willing to complete the work, and wanted to do so. It is however the conduct of Muronga that prevented them from doing so.

[31] In my view, once the aforesaid is the case, it simply cannot be said that the third respondent committed the misconduct of insubordination. In this regard, it must be remembered that in order to legitimately dismiss the third respondent on an insubordination charge, the applicant was required to show the following, as enunciated in Motor Industry Staff Association and Another v Silverton Spraypainters and Panelbeaters (Pty) Ltd and Others[13]:

‘It is trite that an employee is guilty of insubordination if the employee concerned wilfully refuses to comply with a lawful and

reasonable instruction issued by the employer. It is also well settled that where the insubordination was gross, in that it was

persistent, deliberate and public, a sanction of dismissal would normally be justified. …’

And in Malamlela v SA Local Government Bargaining Council and Others[14] the Court held:

‘Insubordination involves a persistent, wilful and serious challenge to, or defiance of the employer’s authority; a ‘calculated challenge’ to the employer’s authority, which is deliberate or intentional. An employee’s wilful flouting of, or refusal to accept the reasonable and lawful instruction of the employer constitutes misconduct because it poses a deliberate and serious challenge to the employer’s authority, with the sanction of dismissal reserved for instances of gross insubordination.’

[32] Therefore, and accepting that the version of the third respondent prevails, as it should, the charge of insubordination against the third respondent must fail. There is simply nothing to show that the third respondent in any manner deliberately refused to carry out the instruction given to her to disconnect coach 9141 from the tracks. There is no proof that she challenged the authority of her supervisor, Muronga, in any manner. Whist it can be said that the instruction to disconnect coach 9141 was not caried out, this failure cannot be imputed onto the third respondent, and it was Muronga himself, through his own conduct and behaviour, that was the cause of this.

[33] But even accepting, for the purposes of argument, that the third respondent did in some manner disobey Muronga where it came to his instruction to disconnect coach 9141 from the tracks, this was certainly never a case that warranted dismissal. This issue was appreciated by the first respondent, who dealt with the same in his award. The first respondent referred to the fact that despite this charge, the third respondent continued to work under, reporting to and receiving instructions from Muronga, for two years and four months after the incident, without any further difficulties or issues.[15] The first respondent reasoned that it can hardly in such circumstances be said that continued employment was intolerable. The first respondent also specifically referred to the fact that there was no testimony by Muronga, as direct superior of the third respondent, that the employment relationship had broken down.[16] I can find little fault with this reasoning of the first respondent. Certainly, the third respondent continuing to work with and be subject to the direct supervision of Muronga for more than two years without incident must surely show that the events of 10 May 2018 was an isolated incident, not repetitive and continuing conduct, and must show that the two parties can still properly work together. In such circumstances dismissal, being a measure of last resort, would surely be entirely appropriate, especially considering it happened more than two years later.

[34] The first respondent also referred to the fact that the third respondent was never suspended as a further motivating factor why the dismissal of the third respondent was not justified. In its argument, the applicant suggested that it could not suspend the third respondent because the case would take too long to complete and the disciplinary policy only allowed for a 30 days’ suspension.[17] As thin as this explanation may be, considering that the disciplinary code does provide for extension of the suspension period with the permission of the CEO, it is divorced from the actual evidence. Muronga was asked under cross examination if the employees were suspended, and he answered that he was instructed not to suspend them but to give them other tasks. He pertinently stated: ‘So they were never suspended, they were working. Daily they were coming to work’. That being so, it is difficult to understand how the first respondent can be criticised for deciding that it was impossible for him to ‘reconcile’ the alleged seriousness of the misconduct with such action on the part of the applicant. The first respondent cannot be faulted in this regard.

[35] There were a number of other issues raised in the arbitration, and in argument before this Court, in taking issue with or supporting the award of the first respondent. This includes an issue of inconsistency, and warnings having been issued to the employees on 10 May 2018 which seem to have vanished. It is not necessary to consider any of this, considering the conclusions I have reached above, which conclusions are sufficient to substantiate the arbitration award of the first respondent on the issue of substantive unfairness.

[36] All said, the finding of the first respondent that the dismissal of the third respondent was substantively unfair, is unassailable on review. It is a conclusion that resorts well within the bands of what may be considered to be a reasonable outcome, having regard to the evidence properly before the first respondent. The applicant’s review application in this regard must therefore fail.

[37] This brings me to the issue of procedural unfairness. The first respondent had proper regard to the disciplinary code that required disciplinary proceedings to be concluded within 30 days, and was highly critical of the applicant taking two years and four months to finalise those proceedings. The first respondent also referred to the fact that the applicant presented no evidence to explain why it had taken so long to finalize the disciplinary hearing. Mainly for these reasons, the first respondent accepted the dismissal of the third respondent was procedurally unfair.

[38] In my view, the aforesaid conclusions arrived at by the first respondent on the issue of procedural unfairness is not only reasonable, but undoubtedly correct. It is true that the applicant did apply for an extension of the 30 days’ time limit in terms of the disciplinary code, and this extension was granted on 15 May 2018 before the time limit expired. It is also true that this extension is not coupled to a further deadline, and the disciplinary code is silent on this. However, I believe that the fact that the applicant

obtained an extension and the disciplinary code being silent on the period of extension, cannot serve as some kind of open licence for the applicant to conclude the disciplinary proceedings when the applicant felt the need or motivation to do so, no matter how long it takes. And certainly, where there is a substantial delay in the finalisation of the disciplinary proceedings, the applicant was always duty bound to prove to the first respondent, as arbitrator, that it has a proper explanation and cause for this delay. In Moroenyane v Station Commander of the SA Police Services, Vanderbijlpark[18] the Court held:

‘In summary, I do not believe that what may be considered to be a lengthy delay in the institution, and then conclusion, of disciplinary

proceedings, can per se lead to a conclusion of unreasonableness and unfairness. A disciplinary hearing cannot be directed to be aborted just because

there is a long delay. More is needed. What must always be considered, in deciding whether to finish off disciplinary

proceedings because of an undue delay, is the following:

42.1 The delay has to be unreasonable. In this context, firstly, the length of the delay is important. The longer the delay, the more likely it is that it would be unreasonable.

42.2 The explanation for the delay must be considered. In this respect, the employer must provide an explanation that can reasonably serve to excuse the delay. A delay that is inexcusable would normally lead to a conclusion of unreasonableness.

42.3 It must also be considered whether the employee has taken steps in the course of the process to assert his or her right to a speedy process. In other words, it would be a factor for consideration if the employee himself or herself stood by and did nothing.

42.4 Did the delay cause material prejudice to the employee? Establishing the materiality of the prejudice includes an assessment as to what impact the delay has on the ability of the employee to conduct a proper case.

42.5 The nature of the alleged offence must be taken into account. The offence may be such that there is a particular imperative to have it decided on the merits. This requirement however does not mean that a very serious offence (such as a dishonesty offence) must be dealt with, no matter what, just because it is so serious. What it means is that the nature of the offence could in itself justify a longer period of further investigation, or a longer period in collating and preparing proper evidence, thus causing a delay that is understandable.

42.6 All the above considerations must be applied, not individually, but holistically.’

[39] The Constitutional Court in Stokwe v Member of the Executive Council, Department of Education, Eastern Cape and Others[19] applied the aforesaid dicta in Moroenyane supra. The Court further had the following to say:[20]

‘This also accords with the general principles of how delay impacts the fairness of disciplinary proceedings. The question whether a delay in finalisation of disciplinary proceedings is unacceptable is a matter that can be determined on a case-by-case basis. There can be no hard and fast rules. Whether the delay would impact negatively on the fairness of disciplinary proceedings would thus depend on the facts of each case …’

[40] In casu, and although the applicant acted promptly in ensuring that its internal disciplinary proceedings are not scuppered as a result of the expiry of the 30 days’ time limit in the disciplinary code, this diligence did not carry through to the conclusion of such proceedings. Far from it. It appears that once it had the extension in hand as provided for in the disciplinary code, the applicant did almost nothing to ensure that the disciplinary hearing against the third respondent was expeditiously concluded. A delay of two years and four months, as a matter of general principle, and absent a cogent and acceptable explanation, would be inexcusable, especially considering the imperative of the expeditious resolution of employment disputes.[21] The applicant offered no explanation for the delay. The applicant called no witness responsible for the disciplinary proceeding so testify / explain why there was such an inordinate delay, and what efforts were in fact taken to prosecute the disciplinary hearing to finality. This failure is exacerbated by the fact that the third respondent specifically raised this as a cause of complaint in the arbitration proceedings. Muronga was asked about this under cross examination, and he said he was unable to provide any answer. In its heads of argument, the applicant attempted to blame the third respondent for the delays, contending there were a number of postponements at her instance. The problem of course is that there is no evidence on record to back up this assertion, and it thus has no substance.

[41] The third respondent, in her testimony, dealt with the issue of the delay. She testified that she received multiple disciplinary hearing notifications from time to time over the period of delay, without any hearing even being convened, until the last notification furnished beginning September 2020. She referred to the fact that there existed some 15 of these notification in all, over the period of more than two years, without any explanation for this. She testified that ‘They forgot about this case’. Under cross examination, it was suggested to her that she caused the delay because she on a number of times changed her representative, to which she answered ‘I never changed representative. I was using Mike …’. The third respondent also referred to the applicant having made several changes of chairpersons. This all points to an undue delay caused by the applicant without cause or reason. Again, the applicant presented no evidence to the contrary.

[42] Therefore, and applying the aforesaid dicta in Moroenyane supra, the only criticism that can be dispensed at the third respondent is that she could perhaps have done more to assert her right to a speedy disciplinary process. But this failure pales by comparison where it comes to the duties resting on the applicant in this regard which it failed to comply with. The applicant always had the obligation to ensure an expeditious disciplinary process, and in this context, the delay in this case is grossly excessive and must be laid squarely at its door. There is no explanation why the disciplinary proceedings could not have been concluded much earlier, or why it took so long to conclude.[22] It must also be considered in this regard that it is recorded in the extension granted, that it is because the investigation into the misconduct has not yet been concluded. That being so, how can it take more than two years to investigate a single act of alleged insubordination? There is little doubt that this kind of delay materially prejudices the employee (third respondent), especially considering that she remained employed, working and reporting the complainant throughout this time. In addition, a single instance of alleged insubordination on the part of an employee is not such that justice cries out for it to be addressed, even if there is a material delay. And finally, when considering the nature of the offence, it is, even on the charges as formulated from the outset, not the kind of misconduct that cannot be readily and easily concluded in disciplinary proceedings without delay. Therefore, and what happened to the third respondent in this instance smacked of unfairness. In Independent Communications Authority of South Africa v Malapane[23] the Court made the following instructive comparable comments:

‘ICASA struggled to explain the delay and vainly attributed it to its internal administrative lapses. Mr Mametja could not explain why he only became aware of the investigation into the theft of ICASA vehicle on 15 February 2018 when the final report was submitted on 14 March 2017. Clearly, he was grasping at straws when he attempted to hide behind the investigation. Mr Mvinjelwa testified that he was shocked when he was called as a witness, two years after the incident.

Conversely, Ms Malapane testified that she had already forgotten about the incident and had thought that everyone had moved on. In the intervening time, her probationary period was confirmed and she was constantly allocated another ICASA vehicle which she parked in the same garage without any challenges. She was not aware that there was an adverse report against her has recommended her discipline up until she was summoned to a disciplinary enquiry in June 2018. So, she could not have done anything to fast-track the process.’

[43] In sum, the first respondent’s findings of procedural fairness are thus unassailable on review. These findings are fully supported by the facts, and is in line with the legal principles as set out above. There simply exist no justifiable grounds to upset these findings on review, and the award in this regard must consequently be upheld.

Conclusion

[44] Therefore, based on all the reasons set out above, I conclude that the first respondent’s arbitration award is simply not reviewable. I am satisfied that the first respondent’s findings of facts are properly supported by the evidence before him.

His views concerning the applicant’s failure to prove the existence of the misconduct and that dismissal would in any event be entirely unjustified, in the circumstances of this case, are unassailable. His findings of procedural unfairness are similarly

unassailable and justified. Insofar as the issue of the outcome arrived at by the first respondent is considered on the basis of it being reasonable or unreasonable, there is in my view no doubt that it would comfortably resort within the bands of reasonableness as required, in order to be sustainable on review. The applicant’s review application thus falls to be dismissed.

Costs

[45] This then only leaves the question of costs. In terms of section 162(1) of the LRA, I have a wide discretion where it comes to the issue of costs. I refer to what the Court said with regard to costs in employment disputes in Union for Police Security and Corrections Organisation v SA Custodial Management (Pty) Ltd and Others[24] which is that when making a costs order in a labour matter, a Judge is required to consider that costs are not ordinarily awarded, the principle of fairness must be considered, and due regard must be had to the conduct of the parties. In casu, I do not believe any of the parties acted unreasonably in bringing this application, or in opposing the same. Whilst some of the review grounds raised by the applicant has little substance, especially the grounds concerning the delay in the finalisation of the disciplinary proceedings, I do not believe this is sufficient to visit it with a costs award. It is my view that the ordinary principle as set out above that costs do not follow the result should carry the day. Therefore, I am satisfied in this case that no order as to costs is appropriate and fair.

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

Order

1. The late filing of the applicant’s review application is condoned.

2. The applicant’s review application is dismissed.

3. There is no order as to costs.

S Snyman

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr A Mavimbela of Msikinya Attorneys For the Third Respondent: Mr G Allsop of Haffegee Roskam Savage Attorneys

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

[2] 1962 (4) SA 531 (A) at 532C-E. The Court said: ‘In deciding whether sufficient cause has been shown, the basic principle 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. Ordinarily

these facts are interrelated, they are not individually decisive, save of course that if there are no prospects of success there would be no point in granting condonation …’. See also Academic and Professional Staff Association v Pretorius NO and Others (2008) 29 ILJ 318 (LC) at para 17.

[3] See Transport and General Workers Union and Others v Hiemstra NO and Another (1998) 19 ILJ 1598 (LC) at para 7 where it was held: ‘… In my view I would be unduly shortsighted to fail to acknowledge that it is a norm of South African society that during the period

mid-December to early January the nation slouches to a near halt. This customary annual shutdown may not have excused the appropriate

degree of expedition in a matter which was truly urgent but it can hardly be said that the nature of this matter was one in which it was inexcusable not to disturb our collective slumber …’. See also Baur Research CC v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 1528 (LC) at para 3.

[4] (2007) 28 ILJ 2405 (CC).

[5] Id at para 110. See also CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at para 134; Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 96.

[6] See Duncanmec (Pty) Ltd v Gaylard NO and Others (2018) 39 ILJ 2633 (CC) at paras 43.

[7] Id at para 41.

[8] (2013) 34 ILJ 2795 (SCA) at para 25. See also Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 943 (LAC) at para 14; Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC) at para 59; Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Legobate (2015) 36 ILJ 968 (LAC) at paras 15 – 17; National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (2015) 36 ILJ 2038 (LAC) at para 16.

[9] See Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC) at para 32.

[10] (2015) 36 ILJ 1453 (LAC) at para 12.

[11] See Standerton Mills (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2012) 33 ILJ 485 (LC) at para 18; National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 945 (LC) at para 31; Truworths Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2009) 30 ILJ 677 (LC) at para 25; Moodley v Illovo Gledhow and Others (2004) 25 ILJ 1462 (LC) at para 22; Kgoadi v Commission for Conciliation, Mediation and Arbitration and Others [2014] JOL 31908 (LC) at paras 51 – 52.

[12] (2006) 27 ILJ 107 (LAC) at para 14. See also See General Food Industries Ltd v Food and Allied Workers Union (2004) 25 ILJ 1260 (LAC) at para 46; Simelane and Others v Letamo Estate (2007) 28 ILJ 2053 (LC) at paras 22 and 23; United People’s Union of SA on behalf of Khumalo v Maxiprest Tyres (Pty) Ltd (2009) 30 ILJ 1379 (LC) at para 29.

[13] (2013) 34 ILJ 1440 (LAC) at para 31. See also Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 36 ILJ 1511 (LAC) at para 19.

[14] (2018) 39 ILJ 2454 (LAC) at para 29.

[15] The third respondent led specific testimony to this effect, which was never contradicted.

[16] See Edcon Ltd v Pillemer NO and Others (2009) 30 ILJ 2642 (SCA) at para 21. The Court concluded as follows at para 23: ‘… In my view, Pillemer's finding that Edcon had led no evidence showing the alleged breakdown in the trust relationship is beyond reproach. In the absence of evidence showing the damage Edcon asserts in its trust relationship with Reddy, the decision to dismiss her was correctly found to be unfair. …’

[17] Clause 11.1 of the disciplinary code does limit suspensions to a period of 30 days.

[18] [2016] JOL 36595 (LC) at para 42. See also Independent Communications Authority of South Africa v Malapane 2022 JDR 2092 (LC) at para 33.

[19] (2019) 40 ILJ 773 (CC) at para 72.

[20] Id at para 71.

[21] See Food and Allied Workers Union on behalf of Gaoshubelwe v Pieman’s Pantry (Pty) Ltd (2018) 39 ILJ 1213 (CC) at para 187; National Education Health and Allied Workers Union v University of Cape Town and Others (2003) 24 ILJ 95 (CC) at para 31.

[22] Compare Stokwe (supra) at para 75.

[23] 2022 JDR 2092 (LC) at paras 34 – 35.

[24] (2021) 42 ILJ 2371 (CC) at para 35. See also Zungu v Premier of the Province of Kwa-Zulu Natal and Others (2018) 39 ILJ 523 (CC) at para 25.