Skhosana v Commission For Conciliation, Mediation and Arbitration and Others (JR1843/22) [2024] ZALCJHB 335 (21 August 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case Number: J1843/22

In the matter between:

KENNETH SKHOSANA Applicant and COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION (CCMA) First Respondent SOLLY MASHEGO Second Respondent ESKOM HOLDINGS SOC (LTD) Third Respondent

Heard: 7 August 2024

Delivered: 21 August 2024

(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLII. The date on which the judgment is delivered is deemed to be 21 August 2024.)

JUDGMENT

FORD, AJ

Introduction

[1] This is an application to review and set aside the arbitration award of the second respondent (“the commissioner”), dated 20 July 2022, on grounds that it constitutes a decision, a reasonable decision-maker could not reach.

[2] The application is brought in terms of section 145 of the Labour Relations Act1 (LRA)[1].

The facts

[3] The applicant, whom I refer to as “Skhosana” was employed by the first respondent, whom I refer to as “Eskom”, as a Service Agent at T10 level, from 1 March 1985.

[4] Skhosana was paid a shift allowance for performing his duties. In 2022, he started complaining about headaches and pain in his ears caused by workplace noise. On or about March 2022, he was removed from doing shift work, as a temporary measure. As a result of being removed from doing shift work, Eskom stopped paying him a shift allowance. He then lodged a grievance as provided for in Eskom’s grievance procedure.

[5] Skhosana summarises his stage one grievance, dated 14 April 2022, as follows:

Employee realised end of March 2022 that his shift allowance has been cancelled after the Eskom Medical Doctors’ recommendation that he be taken away off the risky environment (taking calls). No policy, procedure or piece [of] legislation was relied upon to arrive at a decision to cancel/stop his allowance.

Employee believes that he is victimised due to the case/s he has won against Eskom at various foru (sic)- CCMA etc. Employer require (sic) to reimburse the deducted/cancelled shift allowance and to be paid the said allowance going forward. Cancellation/deduction of the allowance is like a sanction taken before the hearing.

[6] Eskom management responded to the stage one grievance as follows:

Employee was taken off shift work where call taking takes place in line with the Eskom’s Doctor’s recommendation. In the Contact Centre, shift work is only for call taking purposes and all other work is normal workplace hours. By virtue of being taken off call taking, the employee is working normal hours which does not involve or require shift work. 3.10.1 of the Eskom Conditions of Service indicates that Shift allowance is paid to compensate the employee for working shifts and for working on a Sunday in a normal cycle of shits.

Employee referred the same matter to eMalahleni Department of Labour wherein the line manager (Mulalo), his supervisor (Thoko) and the employee had a meeting with the Department of Labour Inspector (Elphus Shabangu). In that meeting the Department of Labour inspector indicated that shift allowance is no (sic) payable if one is not doing shift work.(sic)

[7] Eskom recommended that:

Shift allowance is payable for actual shift work done, not for planned shift work that cannot be done for whatever reason, be it due to business requirements or recommendations or on request by the employee. Paying a shift allowance to an employee. who works normal shift is no different to paying overtime. for no work done - this will be in contravention of the PFMA (Fruitless and wasteful expenditure) on that part of the official who authorises such an arrangement.

Therefore, line manager to arrange with HR to familiarise the employee with the conditions of service with specific reference to Employee remuneration section. Shift allowance to be reinstated only when employee works shifts.

[8] Skhosana did not accept this recommendation and escalated his grievance to stage 2, in June 2022.

[9] In this grievance Skhosana indicated that he was relying on Clause 3.10.3 of the Conditions of Service, specifically where is provides that: For Bargaining Unit employees - shift allowance is paid in full for the period of absence in case of occupational accident leave.

[10] Eskom responded, in relation to Skhosana’s reliance on clause 3.10.1 that his interpretation is wrong as he was not absent from work due to an occupational disease, but that he is undergoing a medical investigation to determine the root cause of his hearing/noise complaint. It reiterated that Skhosana cannot be paid shift allowance as he is currently not on shift work, and is accommodated on non-shift work.

[11] Unhappy with the outcome of his grievances, Skhosana referred an unfair labour practice dispute to the CCMA, claiming that the shift allowance was unprocedurally withdrawn, and that the withdrawal was substantively unfair.

The CCMA proceedings

[12] The commissioner considered the evidence led by Skhosana and Mr. Mulalo Muvhango, which confirmed the facts as set out below and concluded as follows:

Having heard the evidence and arguments from the parties, I could not find any unfairness in the withdrawal of the shift allowance. The decision to remove the Applicant from shift work where his health is exposed, is a temporary measure pending outcome of [an] investigation to his fitness and not incapacity processes. His health problem is not yet determined whether it is permanent or temporary.

[13] In addressing Skhosana’s reliance on clause 3.10.3 of the Conditions of Service, the commissioner stated:

The Applicant is currently working and not on occupational leave or any other leave as stipulated under clause 3.10.3, hence he is not covered under the clause and not entitled to receive the shift allowance.

[14] In light of these considerations, the commissioner dismissed Skhosana's claim.

Review proceedings

[15] It is now trite that the test for review as formulated by the Constitutional Court is that the decision reached by the commissioner in his/her award must be one that a reasonable decision-maker could not have reached. The court held in Sidumo and another v Rustenburg Platinum Mines Limited[2] and others as follows:

To sum up. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.

[16] The applicant attacks the commissioner’s award on the basis that:

16.1 the commissioner committed an error of law;

16.2 the commissioner’s ruling is irrational and grossly unreasonable;

16.3 the commissioner committed a gross irregularity;

16.4 the commissioner was bias;

16.5 the commissioner committed a gross irregularity by ignoring material evidence placed before him;

16.6 the commissioner abused his discretionary powers;

16.7 the commissioner committed misconduct in relation to his duties as an arbitrator; and

16.8 the commissioner exceeded his authority.

[17] It has become, sadly so, common practice for parties to narrate a shopping list of complaints against commissioners in review proceedings, thinking (incorrectly so) that a review proceedings can be pursued with a shot-gun like approach.

[18] There is a duty on a litigant, relying on the record, to marry the complaint against a commissioner, with the record. Differently stated, an applicant must point to the record to prove the allegations levelled against the commissioner. This Skhosana failed to do.

Analysis

[19] A commissioner’s award is reviewable on the basis of reasonableness as determined in Sidumo.

[20] The shopping list of complaints levelled against the commissioner, under the guise of supposed grounds of review, in the matter before me, is most unfortunate. I have carefully read and considered the record and conclude that the complaints raised against the commissioner, are completely baseless, sweeping in nature and context, and are completely void of evidential support. The record exonerates the commissioner in all material respects from the complaints, mostly ill-conceived I might add, levelled against him.

[21] Clearly alive to this shot-gun approach to review applications in this court Van Niekerk J, addressed the issue as follows in Mooki v CCMA and Others. He said:

In the present instance, the applicant’s grounds for review are not cast in terms that reflect the enquiry that the court must undertake. In particular, the grounds articulated both in the founding and supplementary affidavits do not make out a case to the effect that the outcome of the proceedings under review was one that fell outside of the band of decisions to which a reasonable decision-maker could come on the available material. It is not sufficient, as the applicant has done, to record a litany of complaints that amount to no more than assertions that the

commissioner came to conclusions that were wrong. Commissioners are allowed to be wrong; the review test affords them this latitude,

provided that the outcome is not compromised in the sense that is an unreasonable one. The two-stage test referred to above preserves the all-important distinction between appeals and reviews. Further, in an application such as the present, the basis on which the outcome of arbitration proceedings subject to review is alleged to be unreasonable must be specifically pleaded - a failure to do so reflects a failure to establish a cause of action. The applicant’s failure to frame his grounds for review on the proper basis and to rely in piecemeal fashion on a series of alleged misdirections, in my view, is in itself a reason to dismiss the present application[3].

[22] In Lomeza Mining Services v CCMA & Others, Lagrange J, with reference to providing particularity in respect of grounds of review said the following[4]:

The principle of setting out the factual basis of grounds of review is not a matter of drafting formalism. A party opposing a review is entitled to know when drafting any answering affidavit what the alleged factual or legal errors are which underpin the applicant’s grounds of review. Citing one ‘example’ of an alleged material error is also not sufficient, if the applicant wishes to rely on other material flaws, as well. The factual basis for a ground of review should not become apparent only when an applicant files heads

of argument or advances additional grounds in oral argument, bar those matters where a jurisdictional point is raised for the first

time. Accordingly, in this case, the court cannot have regard to additional grounds of review raised in argument for the first time. To indulge the practice of formulating cogent substantiated grounds of review only at the stage of filing heads of argument or later, would be tantamount to licensing review by ambush and thereby defeating the object of the founding and supplementary affidavits.

[23] In Manghena v Minister of Police and Others[5], Prinsloo J also had opportunity to comment on the practice of grounds of review being cast in wide, unsubstantiated and sweeping terms. She said:

[42] The Applicant has raised a number of issues in her founding affidavit and it was no easy task to determine what her actual grounds for review are, as the Applicant made numerous sweeping, unsubstantiated statements. The application appears to be more of a critique of each and every paragraph of the arbitration award than a properly drafted review application.

[43] Considering the test I have to apply, there is an obvious difficulty with the Applicant’s case in that she seeks to attack each and every finding of the arbitrator on every piece of evidence. The Applicant has taken a microscopic approach and dissected and set out every fact she believes was either not considered by the arbitrator or incorrectly accepted by her.

[44] The test on review and the context within which it is to be applied is that the review Court is not required to take into account every factor individually but must consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision maker could make based on the facts placed before him/her.

[24] The crisp issue, that the commissioner had to deal with in the matter before me, is this. Does clause 3.10.3 apply to Skhosana for purposes of determining whether an unfair labour practice was committed by Eskom.

[25] The clause reads as follows:

The shift allowance is paid during the first 30 days of all periods of annual, occasional, service, sick, adoption, commissioning parental leave and special leave. The shift allowance is paid in full for the period of absence in the case of occupational accident leave.

[26] The evidence led by Eskom, and the commissioner’s reasoning on this question, is sound. Payment of a shift allowance will only be paid in full when there is a period of absence in the case of an occupational accident. In the case before the commissioner, Skhosana was not absent from work, he continued at work in a temporary capacity and he is not required to work shifts.

[27] The evidence presented by Eskom was clear. Since Skhosana is currently working and not on occupational leave or any other leave as stipulated, or contemplated, under clause 3.10.3, he is not covered under the clause and not entitled to receive the shift allowance.

[28] The commissioner can therefore not be faulted for his assessment of the evidence or his reasoning. I accordingly find no basis on which to interfere with the commissioner’s award.

[29] In the result, I make the following order:

Order

1. The review application is dismissed.

2. There is no order as to costs.

Bart Ford

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicant: Mr. K. Skhosana (in person)

For the Respondents: No appearance

[1] Act 66 of 1995, as amended. Section 145 provides: ‘145. Review of arbitration awards (1) Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award- (a) within six weeks of the date that the award was served on the applicant, unless the alleged defect involves the commission of an offence referred to in Part 1 to 4, or section 17,20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004; or (b) if the alleged defect involves an offence referred to in paragraph (a), within six weeks of the date that the applicant discovers such offence. (2) (a) (i) (ii) (iii) (b) A defect referred to in subsection (1), means- that the commissioner- committed misconduct in relation to the duties of the commissioner as an arbitrator; committed a gross irregularity in the conduct of the arbitration proceedings; or exceeded the commissioner's powers; or that an award has been improperly obtained

[1] Act 66 of 1995, as amended.

Section 145 provides: ‘145. Review of arbitration awards (1) Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award- (a) within six weeks of the date that the award was served on the applicant, unless the alleged defect involves the commission of an offence referred to in Part 1 to 4, or section 17,20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004; or (b) if the alleged defect involves an offence referred to in paragraph (a), within six weeks of the date that the applicant discovers such offence. (2) (a) (i) (ii) (iii) (b) A defect referred to in subsection (1), means- that the commissioner- committed misconduct in relation to the duties of the commissioner as an arbitrator; committed a gross irregularity in the conduct of the arbitration proceedings; or exceeded the commissioner's powers; or that an award has been improperly obtained

[2] (2007) 28 ILJ 2405 (CC) para 79

[3] (JR772/15) [2017] ZALCJHB 173 (3 February 2017) para 9

[4] Case No: JR1547/2021 (LC) Johannesburg, 31 July 2024

[5] (JR 612/ 2020) [2023] ZALCJHB 233 (10 August 2023)