Road Accident Fund v Commission for Conciliation Mediation and Arbitration and Others (PR138/18) [2020] ZALCPE 7 (14 February 2020)

THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH

Not Reportable

case no: PR138/18

In the matter between:

ROAD ACCIDENT FUND

Applicant

And

THE COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION First

Respondent

NATIONAL UNION OF METAL WORKERS OF

SOUTH AFRICA Second

Respondent

Ms. NONJONGO THUMEKA GQWEDE-KIZA

Third Respondent

Heard: 05 December 2019

Delivered: 14 February 2020

JUDGMENT

MAHOSI, J

Introduction

[1] This is an application brought by the applicant, the Road Accident Fund (RAF), in terms of section 145 of the Labour Relations Act (LRA)[1] for an order to review and set aside the arbitration award (the award) issued by the third respondent (the commissioner), under the auspices of the second respondent, the Commission for Conciliation, Mediation and Arbitration (the CCMA), dated 6 May 2018 under case number ECEL 856-16.

[2] In his award, the commissioner found that the dismissal of the third respondent (the employee) was unfair and ordered RAF to reinstate her retrospectively from 28 September 2017, on the same or similar terms and conditions of employment as those that governed her employment prior to her dismissal and that the employee must report for duty on 15 May 2018. The commissioner further ordered that RAF must, within fifteen days of the date of service of the award, pay the employee a sum of R265 433.00 being equivalent of seven months remuneration for lost wages for a period starting from 28 Septmeber 2017 to 30 April 2018.

[3] The key issue is whether the commissioner’s decision is one that a reasonable decision-maker could not reach.

[4] Prior to outlining RAF’s case in detail and considering the issues that gave rise to the dispute, it is necessary to outline the facts that form the relevant background to the dispute between the parties.

Background

[5] The employee was employed by RAF, at it’s East London offices, as a Claim Officer on 01 August 2008. On 04 November 2013, the employee was promoted to the position of Senior Registration, Verification and Validation Officer, which position she held until she was dismissed on 28 September 2017.

[6] During June 2017, the employee was charged with five counts of misconduct and was subjected to a disciplinary hearing that was held from 26 to 27 June 2017 and from 26 to 28 July 2017. Subsequently the employee was found guilty of all five charges and was dismissed on 28 September 2017.

[7] Dissatisfied with the outcome of the disciplinary hearing, the employee referred an unfair dismissal dispute to the CCMA for conciliation. The dispute could not be resolved through conciliation and the certificate of non-resolution was issued. The employee then referred the dispute to arbitration that was held from 16 to 20 April 2018.

[8] Subsequently, the commissioner issued an award in terms of which he found the employee’s dismissal to be unfair and ordered RAF to reinstate her retrospectively. It is this award that is the subject of this application.

Grounds of review

[9] RAF submitted that the award is reviewable on the grounds that the commissioner:

9.1 Misconstrued the nature of the enquiry in approaching, dealing with and evaluating the evidence before him;

9.2 Ignored relevant and material evidence presented at the arbitration;

9.3 Based his findings on and/or took into account irrelevant considerations;

9.4 Failed to correctly assess the evidence;

9.5 Approached the enquiry with a closed mind;

9.6 Misconceived the nature of the statutory function entrusted to him in that he failed to discharge his duties as an arbitrator;

9.7 Rendered an award in which he made findings and came to conclusions which are unjustifiable and not rationally connected to the information that was before him and/or the reasons given for them. This, according to RAF led the commissioner to arrive at a decision that is obviously wrong, unsupported by the evidence adduced before him and therefore, unreasonable.

9.9 Committed an error of law in relation to the status of a curator ad litem vis-à-vis curator bonis; and

9.11 Wrongfully allowed the introduction of documentary evidence during cross-examination.

The applicable law

[10] The test laid down in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[2] is a test for the substantive reasonableness of the outcome or result of an arbitration award, which is an outcome based enquiry[3], entailing a stringent test aimed at ensuring that arbitration awards are not lightly interfered with.[4]

[11] In Bestel v Astral Operations Ltd and Others[5] the Court stated as follows:

‘It is important to emphasise, as is exemplified from Carephone, and in Schwartz, supra, that the ultimate principle upon which a review is based is justification for the decision as opposed to it being considered to be correct by the reviewing court; that is whatever this Court might consider to be a better decision is irrelevant to review proceedings as opposed to an appeal. Thus, great care must be taken to ensure that this distinction, however difficult it is to always maintain, is respected.’[6]

[12] For RAF to succeed with the review application, it must be established that the commissioner’s decision fell outside the bounds of reasonableness on all the material that was before the commissioner, including for the reasons not considered by the commissioner.[7]

Submissions

[13] At the core of RAF’s contention is that the commissioner adopted a narrow, piecemeal and uncoordinated approach to evaluate the evidence that resulted in him reaching an obviously wrong decision. According to RAF, in determining whether the allegations against the employee were established, the commissioner was bound to consider, amongst others, the alleged misconduct against the nature of RAF’s business and the roles and responsibilities of the employee.

[14] It is common cause that RAF is a publicly funded institution with a statutory mandate to compensate injured persons in respect of the loss or damage wrongfully caused by the driving of a motor vehicle. It is this statutory mandate that RAF failed to discharge as the injured did not receive compensation paid out in respect of the claim lodged on his behalf.

[15] RAF attributes it’s failure to discharge the said statutory mandate to the employee’s alleged dishonesty and/or negligence in that she advised Ms Nokulungisa Mavuso (Ms. Nokulungisa) to terminate the mandate of IC Clark Inc in order to redirect the claim to herself, failed to verify the employment certificate of the injured, facilitated the payments in respect of loss of earnings and the general damages, appointed and paid Ms Nokulungisa as a Curator-Ad-Litem against the wishes of the injured and failed to secure a psychologist’s report for the appointment of a curator bonis.

[16] Contrary to RAF’s contention, the employee’s contention is that the award demostrates that the commissioner properly construed the enquiry before him, considered all relevant evidence before him as well as applicable law and came to a reasonable and justifiable decision.

Arbitration

[17] The charges against the employee emanated from a road accident claim that was initially lodged by Ms. Nokulungisa, on behalf of her brother, Mr. Mahlabandile Mavuso (Mr Mavuso), who was involved in a car accident that occurred on the 26th of October 2009. The claim was for future medical expenses, future loss of income and general damages caused by the wrongful driving of a motor vehicle.

[18] Ms. Nokulungisa later appointed IC Clark Incorporated Attorneys to prosecute the claim. On 01 May 2012 she terminated the mandate of IC Clark Incorporated Attorneys and proceeded to prosecute the claim on her own. It was RAF’s case that the IC Clark Incorporated Attorneys’s mandate was terminated on advice from the employee in order to secure her (the employee’s) official handling of the claim.

[19] The employee’s evidence was that all she did was to explain to Ms. Nokulungisa the advantages and disadvantages of lodging direct claims. Further that the decision to terminate IC Clark Incorporated Attorneys’s mandate to prosecute the claim was taken by Ms. Nokulungisa and not herself. During cross examination, it was put to the employee that the RAF did not have a mission to encourage the clients to lodge direct claims, that is without assistance of attorneys.

[20] The commissioner accepted the employee’s evidence that the RAF’s mission was to encourage clients to lodge direct claims on the basis that it was the only version before him as RAF failed to call a witness to testify on the RAF’s version in this regard and further that he was not pointed to any document talking to this issue.

[21] On the charge that the employee was offered and accepted a bribe amouting to R40 000.00 in exchange for a successful lodgment and payout of the claim, RAF called Mr Sindile Magodla (Mr Magodla), Ms. Nokulungisa’s former boyfriend, to testify in support of its case. Mr Magodla testified that Ms. Nokulungisa received a telephone call from the employee after which she (Nokulungisa) informed him that the employee solicited a bribe of R40 000.00. RAF further called Ms Lindiwe Nyathela-Mavuso who testified that she was informed by Nokulungisa that she had to give something to some people who had ensured that the claim was successful and that the employee’s name was mentioned as one of those people. The employee denied that she solicited a bribe from Ms. Nokulungisa and further that she was offered and accepted a R40 000.00 bribe.

[22] The commissioner noted that on the charge of bribery, RAF relied solely on Mr Magodla’s hearsay evidence and asked RAF’s representative, Mr Maphutha, whether he would be calling Ms. Nokulungisa as a witness. Mr Maphutha’s response was in the negative and the reason proferred was that the RAF had laid criminal charges against Ms. Nokulungisa. The commissioner accepted that such a witness might be hostile but also stated there was a remedy for such situation in that RAF could apply for a ruling to declare Ms. Nokulungisa a hostile witness which would enable it to cross-examine her.

[23] The commissioner further considered whether or not to accept Mr Magodla’s hearsay evidence. In doing so, he had regard to the provisions of section 3(1) of the Law of Evidence Amendment Act[8] and case law regarding the technique employed by courts in resolving factual disputes. Having considered the above, the commissioner found shortcomings in Mr Magodla’s evidence in that Mr Magodla did not know if the alleged bribe was indeed offered and accepted.

[24] The commissioner further found that Mr Magodla’s withholding of the evidence that he requested money from Ms. Nokulungisa and sent messages to Ms. Nokulungisa in which he threatened her life and that of her boyfriend, which resulted in Ms. Nokulungisa seeking a protection order, impacted his credibility and reliability. It was for this reason that he rejected Mr Magodla’s evidence and found that RAF failed to prove that the employee contravened a rule prohibiting soliciting of a bribe or that the bribe was offered and accepted by her in exchange of a successful lodgement and pay out of a claim.

[25] The second charge was that during the period 2010 to 2014 or any period incidental thereto, while employed as a Claims Handler/Officer, the employee proceeded to compensate the claimant an amount of R575 925. 08 in respect of loss of income earnings while she knew that he ought to have verified the veracity of the employment certificate supplied to her. The RAF’s case was that the injured party was not working at the time of the accident and further that the verificatoon of his employment status was crucial to the processing of an amount of R575 925. 08.

[26] The employee’s evidence was that when she received the claim, Ms. Nokulungisa’s attorneys had already instituted a claim for general damages, loss of income and future medical expenses. Further that she (the employee) made a request for general damages amounting to R880 000.00, payment of which was effected by the finance department. The employee submitted that she did not compensate the claimant Ms. Nokulungisa the amount of R575 925. 08 in respect of loss of income earnings. Instead, it was Menziwa’s requested compensation for loss of earnings. At the time of payment of that compensation, she had already been promoted to senior officer and no longer had dealings with compensation of claimants. RAF did not call Menziwa to testify in its support and there was no explanation for not calling him.

[27] The commissioner drew an adverse inference from RAF’s failure to call Menziwa as he regarded his evidence relevant. The commissioner further found that the employee’s evidence was unchalleged and that RAF failed to prove that the employee had indeed proceeded to compensate the injured party an amount of R575 925. 08 in respect of loss of income earnings.

[28] Regarding verification of the employment certificate, on the one hand, the employee testified that verification is done by telephonically contacting the employer. In this case, she contacted the owner of L Disa, Mr Kana, who confirmed that the injured party worked for him. Mr Kana also testified to confirm that the employment certificate was issued by one of his delegated officials and further that the injured party was working for his company earning R2 700 per month. Mr Kana was not cross-examined. On the other hand, Mr.Mavuso testified that he was not employed by L Disa. This was confirmed by Ms Lindiwe Nyathela-Mavuso (Lindiwe) who also testified that Mr. Mavuso was doing “piece jobs” in Butterworth.

[29] The commissioner accepted the employee’s version on the basis that it was not challenged and rejected RAF’s version on the basis that Mr. Mavuso was not a credible and reliable witness because his evidence contradicted that of Mr Magodla in that he testified that after he was discharged he lived with Ms Nokulungisa and Mr Magodla for only three days before he went to live with Lindiwe whilst Mr Magodla testified that he stayed with them for three months. Further that he failed to dispute evidence that when he left Ms Nokulungisa and Mr Magodla he had fully recovered and was able to walk. The commissioner further found that Mr Mavuso’s evidence contradicted that of Lindiwe who testified that she started living him 2016 or 2017 yet he was discharged from hospital around 2009/2010.

[30] The commissioner rejected RAF’s version that Mr Mavuso was not employed at the time of the accident and that he could not claim future loss of earnings on the basis that both Lindiwe and Mr Mavuso testified that he was working as a piece job worker in Butterworth earning R2500.00 per month.

[31] The third charge was that the employee appointed Ms Nomalungelo as a Curator-Ad-Litem in respect of the claim against the wishes of Mr. Mavuso. It was RAF’s case that Ms Nomalungelo was not staying with the claimant at the time and that the employee’s actions in this regard, resulted in the Ms Nomalungelo not acting in good faith or in the interest of Mr Mavuso , post payment of the said claim, the said payment was utilised for other reasons as opposed to

rehabilitation of Mr Mavuso.

[32] The employee’s evidence was that it is RAF’s practice that the person who lodged the claim on behalf of an injured person is nominated as curator and that there is a rule that a person nominated for appointment as a Curator must be staying with the injured person. She nominated Ms. Nokulungisa using that practice. The employee’s evidence was not challenged. Thus, the commissioner accepted employee’s evidence and found that she did not contravene any rule in nominating Ms. Nokulungisa as she complied with the employer’s practice and further that RAF failed to prove that the employee contravened this rule in respect of the nomination of Curator.

[33] The commissioner took the view that the allegation that the claimant did not want the curator in question to be appointed had no merit since Mr. Mavuso admitted that he never told the employee that he wanted Lindiwe to be nominated as curator. The commissioner accepted the evidence that Lindiwe and Nopinkie failed to attend scheduled meetings to discuss nomination of curator, which resulted in the employee submitting a report with her recommendation to her superior who in turn approved her recommendation.

[34] The commissioner viewed the fact that Myathaza was not charged as proof that the nomination and approval of Nokulungisa does not constitute misconduct. It was for this reasons that the commissioner found that the nomination complied with employer’s policy and procedure and that the employee did not contravene any rule prohibiting the nomination of the person who lodged the claim.

[35] It was the commissioner’s finding that the employee was not to be held responsible for actions of curator post appointment because the said curator did not take instruction from her. Further that the only requirement was for the employee to comply with the practice, rule and procedure of the employer in nominating a person for appointment. The commissioner accepted the unchallenged evidence that the employee’s role ended on payment of compensation for general damages and that the claim was handled by other employees and arrived at the conclusion that the employee had nothing to do with rehabilitation.

[36] Further evidence was that on 31 May 2013, Bate Chubb and Dickson Incorporated Attorneys filed, on behalf of RAF, an application for an order to appoint Ms. Nokulungisa as a curator-ad-litem at Butterworth Magistrate Court, which order was issued on 5 June 2015. On the basis of this evidence, the commissioner found that the allegation that the employee appointed her as curator-ad-litem is not true as a curator was appointed by the Court after due process.

[37] The fourth charge was that the employee committed misconduct by deliberately supplying incorrect or falsified information that was used by RAF to pay an amount of R15 047, 73 to another unintended Curator-Ad-Litem. According to RAF, this curator was appointed through the employee’s instruction or advice and who subsequently failed to act in the best interest of Mr Mavuso.

[38] The employee denied responsibility for payment to another unintended curator-ad-litem and further denied instructing any person to make such payment. The evidence is that Ms Gcobisa Mvubu (Ms. Mvubu) appointed Ms Nokulungisa and paid her for three months. Upon discovering that she was not providing services of caregiver, she recommended termination of her appointment. Ms Mvubu requested Ms Nokulungisa to pay back the money, which she agreed to and subsequently paid back. Ms Mvubu then appointed Lindiwe and paid her R2 768.05 per month. The commissioner found that Ms Mvubu authorised or caused payment to both. There was no evidence that the employee supplied incorrect or falsified information and that Mr Mavuso informed the employee that he did not want Ms Nokulungisa to be appointed as curator.

[39] The commissioner further found that the employee was not in a position to know whether or not the curator acted in the best interest of Mr Mavuso as she was not involved in his rehabilitation. The employer’s witness did not disclose falsified or incorrect information and Mr Mavuso conceded that he never spoke to the employee.

[40] The fifth charge was that on 18 September 2013 and on 15 July 2015, when requested by the Fund’s panel of attorneys for appointment of a psychologist to assess a claimant, Mr. Mavuso, in order to assess his capability to handle his affairs regarding a claim, the employee intentionally ignored such request, which resulted in the Court appointing an unintended curator who subsequently failed to act in the best interest of the claimant in question. It is the RAF’s case that the employee’s failure to appoint a psychologist to assess the claimant is regarded as dishonest, alternatively grossly negligent on her part.

[41] The employee’s unchallenged evidence is that she never received any request or communication from the employer’s attorneys because on 18 September 2013, she was not at work as she was on maternity leave and on 15 July 2015, she had been promoted to Senior Officer and was not involved in the appointment of psychologists. The commissioner found that RAF failed to place evidence of who delivered the request, when was it delivered, when was it received and by whom. The commissioner accepted the employee’s evidence on the basis that it was not challenged. As a result, he found that RAF failed to prove that the employee committed misconduct as charged.

[42] Having found that RAF failed to prove on a balance of probabilities that the employee contravened the rules listed in the notice of disciplinary hearing and that the dismissal was not for a fair reason as contemplated in section 188(1) of the LRA, he took the view that there was no need to determine whether or not the rule was valid, or reasonable, whether the employee was aware of it and whether it has been consistently applied.

[43] The commissioner further considered the provisions of section 193(2) of the LRA, which requires the Labour Court or the arbitrator to order the employer to reinstate or re-employ the employee unless the conditions set out in section 193(2) are present. These conditions are as follows:

‘(a) the employee does not wish to be reinstated or re-employed;

(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

(c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or

(d) the dismissal is unfair only because the employer did not follow a fair procedure.’

[44] In this case, the commissioner found that RAF had failed to place before him any evidence that it was not reasonably practicable to reinstate the employee. As a result, he ordered RAF to retrospectively reinstate the employee.

Was the commissioner’s decision one that a reasonable decision-maker could not reach?

[45] The manner in which the commissioner analysed the evidence that was led before him does not support the RAF’s version that he misconstrued the enquiry he had to conduct, failed to consider the evidence before him or adopted a narrow, piecemeal and uncoordinated approach to evaluate the evidence. The applicant further failed to establish that the commissioner committed an irregularity or conducted the enquiry incorrectly because, as the award reflects, he dealt with the issue before him correctly.

[46] It may well be that RAF failed to discharge its statutory mandate to compensate Mr Mavuso in respect of the loss or damage wrongfully caused by the driving of a motor vehicle, however there is no evidence that its failure could be attributed to the employee’s dishohesty or negligence.

[47] It is apparent from the reading of the record and the award that RAF failed to lead evidence that could persuade the commissioner to arrive at the conclusion that the employee advised Ms Ms. Nokulungisa to terminate the mandate of IC Clark Incorporated in order to redirect the claim to herself, failed to verify the employment certificate of the injured, facilitated the payments in respect of loss of earnings and the general damages, appointed and paid Ms Nokulungisa as a Curator-Ad-Litem against the wishes of the injured and failed to secure a psychologist’s report for the appointment of a curator bonis.

Conclusion

[48] It is my view that the decision of the commissioner is not a decision that a reasonable decision-maker could not reach. It is a reasonable decision that is justified by the evidence that was placed before him. There is, therefore, no reason for this Court to interfere with his award.

Costs

[49] With regard to costs, taking into account the requirements of law and equity, I believe that this is a matter in which there should be no order as to costs.

[50] In the circumstance, the following order is made:

Order

1. The application for an order to review and set aside the arbitration award issued by the third respondent, under the auspices of the second respondent dated 6 May 2018 under case number ECEL 856-16 is dismissed.

2. There is no order as to costs.

_______________________

D. Mahosi

Judge of the Labour Court of South Africa

Appearances

For the Applicant: Advocate Sunday Ogunronbi

Instructed by: Chuene

Mahlo Incorporated Attorneys

For the Respondents: Advocate Batande Ndamase

Instructed by: W

Mdlangazi Attorneys

[1] Act 66 of 1995 as amended.

[2] [2007] 12 BLLR 1097 (CC).

[3] Ellerine Holdings Ltd v Commission for Conciliation, Mediation and Arbitration and others (2008) 29 ILJ 2899 (LAC) at 2906H-I.

[4] Fidelity Cash Management Services v CCMA and Others [2008] 3 BLLR 197 (LAC) at para 100; Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curiae) [2013] 11 BLLR 1074 (SCA) at para 13.

[5] [2011] 2 BLLR 129 (LAC)

[6] Id fn 5 at para 18.

[7] Fidelity Cash Management Services v CCMA and Others [2008] 3 BLLR 197 (LAC) at para 103.

[8] Act 45 of 1998.