SATAWU obo Khumalo v Commission for Conciliation, Mediation and Arbitration and Others (JR1982/13) [2014] ZALCJHB 510 (11 December 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

CASE NO JR1982/13

DATE: 11 DECEMBER 2014

Not Reportable

In the matter between:

SATAWU obo SAKHELE KHUMALO...................................................................Applicant

And

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION.................................................................................First Respondent

STEPHE NTOMBELA N.O....................................................................Second Respondent

PASSENGER RAIL AGENCY OF SOUTH AFRICA.................................Third Respondent

Date heard: 4 December 2014

Date delivered: 11 December 2014

VAN NIEKERK J

[1] This is an application to review and set aside an arbitration award issued by the second respondent, to whom I shall refer as ‘the commissioner’. In his award, the commissioner found that the dismissal of Mr. S Khumalo, on whose behalf the applicant acts, was substantively and procedurally fair.

[2] The applicant seeks to review the award on the basis that the commissioner committed a reviewable irregularity in that he committed a material error of law by requiring the applicant to provide grounds or reasons as to why the sanction of dismissal was unfair. In so doing, the applicant contends that the commissioner failed to apply his mind to the relevant principle, i.e. that it was for the third respondent to prove that dismissal was a fair sanction in the circumstances. Further, the applicant contends that the commissioner’s conclusion that the dismissal was fair is not one that a reasonable decision-maker could have made on the available evidence. In its supplementary affidavit, the applicant sets out a number further grounds for review which deal in the main with contentions that the commissioner failed to have regard to evidence that was presented during the proceedings under

review

[3] The material facts are not in dispute. I do not intend to repeat them for the purposes of this judgment; they are recorded in the commissioner’s award. All that needs to be said for present purposes is that Khumalo, a union official, was dismissed on charges of bringing the company’s name and that of its CEO into disrepute when during the course of a strike, he made a statement on national television to the effect that ever since the group CEO had assumed office there had been corruption and poor service. Khumalo did not deny making the statement, his defence was based on the assertion that whatever he had said had been

said in his capacity as a member of the union and that in any event, he had later apologised for what he had said.

[4] The commissioner’s reasoning is disclosed from his analysis of the evidence. At paragraph 30 of the award he says the following:

‘Any misconduct committed within the context of a lawful strike is disciplinable. The legal strike is not and cannot be used as a vehicle for commission of misconduct. That is why any person who is found to have misconducted himself during the legal strike is liable to be disciplined. Even during the lawful strike, the participants in a lawful strike are expected to behave and maintain discipline. A legal strike is therefore not a licence to belittle, ridicule and embarrass management through disparaging remarks and any person found to have committed this misconduct renders himself liable to be disciplined’.

[5] Further, at paragraph 31 and following:

‘It is immaterial that at the time of making the disparaging remarks the applicant wore a SATAWU T-shirt and that it was not during working hours. What becomes relevant is the reference to the name of the person or the institution which is said to be allegedly corrupt and the fact that when the Trade Union embarked on a lawful strike the applicant did not cease to be an employee of PRASA. At all material times during the lawful strike the applicant was an employee of PRASA. …

[33] I equally rejected the argument advanced on behalf of the applicant that the video footage that was used as evidence in this arbitration is a “cut and paste”. When Mr. Nkosi desisted with this argument on the 19 April 2012 he was advised to obtain an supposedly ‘unedited copy’ which he believed was at the SABC. When this matter resumed on the 19 July 2013 (three months later) and ‘unedited’ copy had not been obtained from the SABC. The reason this was not done is because

there was no ‘unedited’ copy the applicant could find at the SABC.

[34] The applicant stated that he apologised to Lucky Montana regarding the utterances he made on national television. It is difficult to understand why he apologised when the utterances were not directed at him. He explained that the reason for his apology was because the manner in which the company had put the allegation it was as if he had directed his utterances to Lucky. This reason is to be rejected. The only reason the applicant apologized is because he knew he was responsible and guilty for the statement he made on national television’.

[6] What follows is the paragraph that forms the basis of the applicant’s primary ground for review. It reads as follows:

‘[35] I find that the applicant was unable to provide grounds upon which I may rely to interfere with the employer’s sanction to dismiss him and on this basis I find that the dismissal of the applicant was substantively fair’.

[7] The legal principles to be applied are well established. The test for review focuses on the reasonableness of the outcome. In Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA) the Supreme Court of Appeal clarified the relationship between the constitutional requirement of reasonableness and the grounds for review in s 145(2) of the LRA. The concept of gross irregularity in the conduct of arbitration proceedings is not confined to the situation where the arbitrator misconceived the nature of the enquiry; it extends to those instances where the result is unreasonable. A result is unreasonable if and only if it is one that a reasonable arbitrator could not reach on all the material that was available. Material errors of fact, as well as the weight and relevance to be attached to particular facts are not in themselves a basis for an arbitration award to be set aside. These are relevant only if their consequence is to render the outcome of the proceedings under review unreasonable. In Goldfields Mining South Africa (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and others (2014) 35 ILJ 943 (LAC) the LAC confirmed this approach and held that it was the function of a reviewing court to ascertain whether the arbitrator considered the principal issue before him or her, evaluated the facts at the hearing and come to a conclusion which was reasonable to justify the decision to which he was she had come. What is to be avoided is an approach that invites the reviewing court to consider and analyse every issue raised at the arbitration and to regard a failure by the arbitrator to consider all or some of the issues, even if they are material, as rendering the award

reviewable on the basis of a process -related review. It is apparent from this formulation that the threshold in a review application is set high, and as the LAC once observed, it is not often that an applicant in a review application will succeed.

[8] In the present instance, insofar as the grounds for review invite the court to have regard to particular aspects of the evidence and in particular, to the weight which the commissioner accorded or failed to accord them, this is not of any consequence. The commissioner clearly understood the nature of the enquiry before him, afforded the parties a fair opportunity to present their respective cases, and applied his mind to the evidentiary material before him.

[9] I do not agree that paragraph [35] of the award, read in context, indicates any reversal of the onus and thereby a material error of law on the part of the commissioner. The commissioner in his award referred to and considered all of the evidence, and went on to consider the merits of the applicant’s case. In doing so, he found on the probabilities that the evidence relating to the charge against the applicant had not been disputed. It is clear from the terms of the award that the commissioner regarded the applicant’s conduct to have been so serious as to warrant dismissal. In particular, the commissioner found that the applicant’s conduct had served to belittle, ridicule and embarrass the third respondent’s management. It is not unreasonable to find, as the commissioner did, that the attempt to cast aspersions on the integrity of the video tape in issue was entirely without merit. The commissioner’s function was to exercise a value judgement and to determine a fair sanction for the misconduct committed.

This requires a balance of the competing interests and a decision which is fair, in all the circumstances, to both parties. It is apparent to me from the terms of the arbitration award that this is the process in which the commissioner engaged and there is no reason to call into question either the manner in which he discharged his duties or the reasonableness of the decision to which he came.

[10] For these reasons, the application for review stands to be dismissed.

[11] Neither party pressed the issue of costs and in terms of the broad discretion conferred on the court in terms of s 162 of the Act, I do not intend to make any costs order.

I make the following order:

1. The application is dismissed.

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT

APPEARANCES

For the Applicant: Mr. Mabaso, Mabaso Attorneys

For the Respondent: Mr. E Nkoana, Maserumule Inc. Attorneys