South African Commercial and Catering Allied Workers Union and Another v Massbuild (PTY) Ltd t/a Builders Warehouse and Others (C33/2018) [2022] ZALCCT 56 (24 October 2022)

Not reportable

THE LABOUR COURT OF SOUTH AFRICA,

HELD AT CAPE TOWN

Case no: C33/2018

In the matter between:

SOUTH AFRICAN COMMERCIAL AND

CATERING ALLIED WORKERS UNION

First Applicant

PHILEMON LOLWANE

Second Applicant

And

MASSBUILD (PTY) LTD t/a BUILDERS WAREHOUSE First Respondent

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION

Second Respondent

K KLEINOT N.O.

Third Respondent

Heard: 1 July 2021

Date of Judgment: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 14h00 on 24 October 2022

Summary: application for review and application for condonation for late filing of answering affidavit – late filing opposed –

condonation granted in interests of justice – application to review arbitration award due to alleged gross irregularity and

unreasonable outcome based on reasonable decision maker test – arbitrator allegedly failing to evaluate evidence according to requirements of the law of evidence resulting in unreasonable outcome – review unsuccessful – arbitration award reasonable based on the evidence presented

JUDGMENT

CASSELLS AJ

Introduction

1. The Applicants seek an order that the arbitration award issued by the Third Respondent in her capacity as the arbitrating commissioner of the arbitration conducted under the auspices of the Second Respondent be reviewed and set aside and that, pursuant thereto, the arbitration award be corrected, alternatively, that the matter be remitted back to the Second Respondent for determination by another commissioner. The Applicants’ application is opposed by the First Respondent.

2. The First Respondent has applied for the condonation of the late filing of its answering affidavit, the latter application being opposed by the Applicants.

The condonation application

3. The First Respondent’s answering affidavit was delivered sixteen court days late. The reasons for the late delivery of the answering affidavit are briefly that the First Respondent was of the view that the Applicants had failed to make out a proper case for the condonation of the late filing of the review application, which was filed thirteen weeks outside the prescribed six week period set out in section 145 of the Labour Relations Act, 1995 as amended and that until granted, the First Respondent was not required to file its answering affidavit.

4. The First Respondent had opposed the Applicants’ condonation application. That application was argued on 17 April 2019 and judgment granting the Applicants condonation for late filing of the review application was delivered on 24 April 2019.

5. The First Respondent undertook to deliver its answering affidavit by or before 10 May 2019 after receipt of the judgment of this court granting the Applicants condonation for the late filing of the review application, which was done.

6. The Applicants opposed the First Respondent's application for the condonation of the late filing of the answering affidavit primarily on the basis that the First Respondent had of its own accord decided to deliver the answering affidavit only after the condonation application had been adjudicated, which meant that the delivery of the answering affidavit would be out of time and that the First Respondent must stand or fall by its decision not to comply with the provisions of rule 7A (9) of this Court’s rules, as it made a conscious decision not to comply therewith. Furthermore, the Applicants contend that the First Respondent was not unequivocal in its intention to oppose the review application itself and therefore the Applicants are entitled to an order refusing condonation for the late delivery of the answering affidavit.

Assessment of Condonation Application

7. Even if its decision to hold over the filing of its answering affidavit was not strictly in accordance with the rules of this court, the First Respondent’s decision to hold the filing of its affidavit in abeyance until this Court had decided the Applicants’ condonation application for the late filing of the review application did not result in material prejudice to the Applicants, particularly in the context of the various other delays in the process. There were numerous delays in this review process and the Applicants, the First Respondent and the Second and Third Respondents were all at different stages responsible for those delays.

8. It is also apparent from the conduct of the First Respondent that it had indeed elected to oppose the Applicants’ review application. It is a principle of our legal system that whilst finality is good, justice is better and to refuse the First Respondent’s application for condonation in the circumstances of the matter would not serve the interests of justice as the First Respondent’s non-compliance is not deserving of the censure of being precluded being heard.

9. For these reasons, the First Respondent's application for the condonation of the late filing of its answering affidavit is condoned and the matter is adjudicated as an opposed review application.

The record of the arbitration proceedings

10. In their supplementary affidavit, the Applicants note that portions of the transcript are missing, that the missing portions the record of the arbitration proceedings have been reconstructed from the typed notes of the Third Respondent (hereinafter “the commissioner”) and that the Applicants accept her notes of the evidence of the witnesses whose evidence is not contained in the transcript as a true and accurate record of the evidence of those witnesses.

The facts

11. The background facts of the matter are briefly that the Second Applicant was employed by the First Respondent as a sales consultant in its paint department from August 2007 until his dismissal on 1 February 2017. At the time of his dismissal the Second Applicant was a shop steward. His dismissal resulted from an incident of misconduct, which was couched as follows:

"Non-compliance with the obligation to be obedient and show mutual respect towards a senior manager, in that you seriously disrespected the HR manager Miss Aspeling when you kissed her on the mouth in the presence of others without her consent while she was busy with an investigation that concerned you. This left her very uncomfortable and aggrieved and this constitutes harassment which is against company policies and procedures".

12. The incident which led to the allegations of misconduct occurred on 14 November 2016 in the HR manager's office when a sobriety test was conducted on the Second Applicant, who had allegedly reported for work under the influence of alcohol. The HR manager was requested by other members of management to smell the breath of the Second Applicant and when she leaned forward to do so he allegedly kissed her. The Second Applicant denied the incident.

13. The grounds of review are that the commissioner committed a gross irregularity having regard to the correct test to be applied when a commissioner is faced with two irreconcilable differences, which requires a commissioner to make findings on the credibility of witnesses, the reliability of the evidence, the probabilities and a determination on whether the party burdened with the onus of proof has succeeded in discharging it. The Applicants allege that the commissioner failed to apply these principles and that consequently she arrived at a conclusion that no reasonable commissioner would have arrived at.

14. In support of the grounds of review, the Applicants contend that the Commissioner ought to have found on the probabilities that the Second Applicant did not kiss the HR manager when considered against the following propositions:

5.1 It is highly improbable that the Second Applicant would have risked kissing the HR manager in the presence of four other people;

5.2 The Second Applicant was not intoxicated to the point that his mental capacity was affected as he worked on the morning of the incident and had carried out the instructions issued to him by his manager and had also passed the sobriety test;

5.3 If the kiss happened (which is denied), the HR manager's reaction was clearly casual and did not suggest that she was uncomfortable;

5.4 The manager failed to explain why she returned to the Second Applicant after the alleged kiss;

5.5 The time lapse between the date of the alleged incident and when the Second Applicant was confronted with the allegation does not suggest that the incident occurred and that it was regarded as serious;

5.6 Between 14 November 2016 and 25 November 2016, the Second Applicant was in the dark about the investigation into his alleged serious misconduct;

5.7 The First Respondent did not have an adequate explanation for not disciplining the Second Applicant immediately after the incident, given that the Second Applicant was immediately disciplined in respect of being under the influence of liquor;

5.8 The Applicants’ witness at the arbitration, Saki Sele (“Sele”), who was also present when the incident allegedly occurred, testified that the Second Applicant was cleaning his mouth, which was confirmed by both the HR manager and another witness, yet the Commissioner rejected that version as not having been put to the First Respondent’s witnesses;

5.9 The First Respondent’s witnesses had a motive for fabricating a story against the Second Applicant as management was at war with the shop stewards and the Applicants’ version to that effect stood uncontroverted;

5.10 The commissioner observed that there are contradictions in the versions of two of the First Respondent’s witnesses but attached no weight to those contradictions;

5.11 The arbitration award makes no mention whatsoever of the demeanour of the witnesses, prospects of partiality, prejudice or self-interest on the part of the witnesses, which the commissioner was required to take into account in deciding which of the two conflicting versions was to be accepted; and

5.12 Had the commissioner applied the correct test in assessing the evidence, she would have concluded that the more probable version was that the HR manager had concocted a lie about the kiss and that the First Respondent’s witnesses were party to that conspiracy.

15. In conclusion, the Applicants contend that as the correct test in assessing the versions was not applied, the arbitration award was one that no reasonable decision-maker could have made.

16. In their supplementary affidavit, the Applicants elaborate further on the contradictions between the evidence presented by the First Respondent’s witnesses, namely that:

7.1 The HR manager alleged that she was kissed on the mouth and the cheek whereas another witness (Dreyer) testified that she was kissed on the mouth and that contradiction could not be explained away;

7.2 All the First Respondent’s witnesses excluding the HR manager herself testified that she approached the Second Applicant twice with the purpose of smelling him, that the alleged kiss occurred on the first occasion that she approached the Second Applicant, that there was no explanation as to why she did so a second time as it was highly improbable that she would do so after being disrespected in the manner alleged on the first occasion;[1]

7.3 Certain of the First Respondent’s witnesses spoke Afrikaans during the meeting, which raised the question what they were saying as the Second Applicant and Sele testified that they do not speak and understand Afrikaans;

7.4 The First Respondent’s witnesses gave varying versions as to how the Second Applicant reacted after he allegedly kissed the HR manager, which points to a version that is most probably fabricated;

7.5 It is improbable that the offence was committed, given the delay from when it allegedly occurred namely 14 November 2016 to when the First Respondent first addressed it with the Second Applicant on 25 November 2016 and the Second Applicant continued to interact with the HR manager on work matters in that period and was only cautioned against being in contact with the HR manager on 25 November 2016;

7.6 It is improbable that the alleged kiss happened as the more reasonable approach would have been to discontinue the sobriety test that the First Respondent was conducting at that time and address the egregious misconduct that had been committed in the presence of three managers, which did not happen; and

7.7 The fact that the Second Applicant used one Afrikaans word "komplot" should not have led the commissioner to the conclusion that the Second Applicant could understand Afrikaans as people who do not speak a specific language are able to utter words from that language.

17. In its answering affidavit, the First Respondent, in summary, contends that the commissioner was alive to the irreconcilable versions before her and that she considered the probabilities inherent in the two versions presented at the arbitration as well as the credibility and reliability of the witnesses’ versions.

18. The First Respondent contends that the approach adopted by the commissioner does not warrant interference on review as an arbitration award is not required to meet the exacting standard for the assessment of conflicting versions as set out in the case law of the High Court and does not automatically render an award susceptible to review as commissioners at the CCMA are empowered to deal with the dismissal disputes with the minimum of legal formalities.

19. The First Respondent further relies upon the principle that that the review test in such matters focuses on the substantive reasonableness of the outcome or result, namely that it is an outcomes-based enquiry and that errors made in the treatment and assessment of evidence by a commissioner do not of themselves constitute separate grounds of review. In the present matter, the overall reasonableness of the award cannot be impugned.

Assessment

20. A review application based on a gross irregularity requires that the arbitrator misconceived the nature of the enquiry or arrived at an unreasonable result. In turn, 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.

21. Material errors of fact (and also of law) 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. An outcome will be reasonable if the decision that the arbitrator arrived at is one that falls in a band of decisions which a reasonable decision maker could make on the available material.

22. The Labour Court on review must ascertain whether the arbitrator considered the principal issue, evaluated the facts presented at the hearing and came to a reasonable and justifiable conclusion. This Court 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.

23. The questions to be asked in assessing whether there are grounds of review are:

14.1 In terms of the arbitrator’s duty to deal with the matter with the minimum of legal formalities, did the process that arbitrator employed give the parties a full opportunity to have their say in respect of the dispute;

14.2 Did the arbitrator identify the dispute that was to be arbitrated;

14.3 Did the arbitrator understand the nature of the dispute to be arbitrated;

14.4 Did the arbitrator deal with the substantial merits of the dispute;

14.5 Is the arbitrator’s decision one that another decision maker could reasonably have arrived at based on the evidence[2].

24. In Head of the Department of Education v Mofokeng and others[3] the Labour Appeal Court found that:

“Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.

Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator’s conception of the enquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.”

16. The applicant must establish three things in order to succeed with a review based on the reasonable decision maker test:

16.1. The applicant must demonstrate that both the commissioner’s reasons and the result of the award are unreasonable;

16.2. Where the applicant is able to identify some error or misdirection on the part of the commissioner, the applicant must establish that the error or misdirection caused the result of the award to be unreasonable;

16.3. The applicant must show that on the totality of the evidence before the commissioner and examining the merits “in the round” that the award is incapable of reasonable justification, including on the basis of good reasons not considered by the commissioner.[4]

17. In Stellenbosch Farmers Winery Group Ltd and another v Martell et Cie & others[5] the court stated the following in respect of evaluating the credibility and reliability of witnesses:

“…the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour and demeanor in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness' reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof.

Evaluation of the grounds of review

18. The averments made in support of the grounds of review are all based on the manner in which the Commissioner dealt (or did not deal) with the evidence presented at the arbitration. In its essence the review is premised on the proposition that had the Commissioner evaluated the evidence in the manner that the Applicants contend she should have done and did not do, the outcome of the arbitration would have been different and that her failure in assessing the evidence reference to and applying the principles applicable to the evaluation of evidence resulted in an unreasonable outcome. The enquiry therefore entails a consideration of the commissioner’s recording of the evidence, the manner in which she addressed the evidence, whether she applied the correct principles in evaluating the evidence and whether the conclusions that she reached were reasonable.[6]

19. The relevant evidence presented at the arbitration in respect of the incident for which the Second Applicant was dismissed was presented by the First Respondent’s witnesses Kobus Lambrecht ("Lambrecht"), Andre Dreyer ("Dreyer"), the HR manager, the Second Applicant and Sele. Frans Kamffer (“Kamffer”) gave evidence in respect of the delay in the investigation process from 14 November 2016 to 25 November 2016.

20. The salient evidence of the witnesses was as follows:

20.1. Lambrecht testified that he overheard what was said and the remarks that led to it. He did not see the kiss. He confirmed that he had made a statement in which he recorded that he did not see the kiss, that the HR manager had asked the Second Applicant what he thinks he is doing and that Sele had also asked the Second Applicant why he kissed the HR manager. His statement also records that Dreyer made a remark but Lambrecht could not recall what he said. In his statement he also recorded that the Second Applicant had a grin on his face.

20.2. Dreyer made a statement on 24 November 2016 in which he recorded that when the HR manager moved to where the Second Applicant was sitting to smell him, the Second Applicant kissed her. He recorded that Lambrecht and Sele witnessed it. The HR manager displayed shock and Lambrecht, Sele and him were also very shocked by this incident but the Second Applicant indicated that he had enjoyed himself. Dreyer confirmed that evidence in the arbitration and testified further that Sele remarked that he did not know why the Second Applicant had kissed the HR manager. In cross examination Dreyer disputed that the HR manager went back to smell the Second Applicant's breath a second time. He confirmed that he saw the Second Applicant kiss the HR manager. He also recorded that as Lambrecht was sitting to his left, it may be that Lambrecht did not see the kiss as his vision was blocked.

20.3. The HR manager submitted an email on the day of the incident recording what took place. The email is detailed in content and records that when she approached the Second Applicant to smell his breath he kissed her and that she commented that if he feels it fit to kiss the HR manager, he must be under the influence. Her email complaint also refers to a WhatsApp message that the Second Applicant sent her on Friday evening 11 November 2016 at 20:53 which in hindsight she considered suggestive as it was late on Friday evening and was definitely not work-related. Her email further records that she felt disrespected on all levels, but especially as a manager. In her evidence at the arbitration, the HR manager testified that the Second Applicant turned and kissed her on the right-hand side of her mouth and cheek, partially her mouth, partially her cheek. She confirmed that she went to the Second Applicant a second

time to smell his breath.

20.4. Kamffer testified in respect of the reasons for the delay in investigating the alleged kiss, being the unavailability of the various role players due to other commitments in the intervening period as well as absences from work and weekends.

20.5. The Second Applicant denied the incident but confirmed that when the HR manager came to smell his breath he breathed towards her. She moved away from him claiming that he had kissed her and he responded by stating "sissie, please do not say such jokes". She went back to her desk and then came back and smelt his breath again. In respect of the WhatsApp message, he stated that he contacted her as a friend but nothing more than that. He believed that the HR manager, Lambrechts, Dreyer and the chairperson of the disciplinary hearing as well as another manager Jose (the manager who pushed that the matter be investigated) were all part of the conspiracy to have him dismissed. He referred to it as a "komplot", an excuse to get rid of him as he believed that being a shop steward was like being at war with the First Respondent.

20.6. Sele testified that the first time the HR manager tested the Second Applicant's breath she went back to her seat. The second time, the HR manager asked the Second Applicant to “do something like smack his lips". It was on that second occasion that the HR manager then stated that the Second Applicant had kissed her. The kiss did not take place. The smacking sound was the Second Applicant cleaning his mouth. He denied that he commented on the Second Applicant kissing the HR manager and testified that his only remark was to ask why members of management were speaking in Afrikaans. He also testified that the trade union is in “a sort of war” at work and alleged that management was engaged in a conspiracy to dismiss the Second Applicant.

21. The commissioner's analysis of the evidence and argument is detailed in respect of the substantive unfairness of the Second Applicant's

dismissal. Her reasons are contained in paragraphs 48 to 53 of the arbitration award. She acknowledges at the outset that there are two mutually destructive versions, being whether the kiss occurred as alleged by the First Respondent or whether it did not occur and that the allegation was made by the First Respondent’s witnesses that there was a plot to get rid of the Second Applicant as he was a shop steward.[7]

22. A perusal of the arbitration award confirms that the commissioner assessed the delay in the First Respondent pursuing disciplinary action against the Second Applicant in respect of the alleged kiss.

23. The commissioner acknowledged the inconsistencies in the evidence of the First Respondent’s witnesses Lambrechts and Dreyer whilst also acknowledging that in their respective testimonies they remained steadfast under thorough cross examination. This is borne out by a perusal of the typed notes of their evidence in the arbitration proceedings. The inconsistencies in their respective testimonies do not of itself justify a conclusion that the kiss did not take place. The Commissioner acknowledges in paragraph 49 of the arbitration award that the HR manager’s version was credible and that the specific placement of the kiss, whether on her mouth or partially on her mouth and her cheek, did not detract from the veracity of her evidence.

24. The commissioner considered other peripheral evidence that was presented in the arbitration, including a prior WhatsApp message sent by the Second Applicant to the HR manager at 20h53 the previous Friday evening, a casual message sent in the vernacular and not related to work, as well as the Second Applicant's use of the Afrikaans word "komplot" despite his denial of any understanding of Afrikaans, and concluded that in both instances the Second Applicant’s explanation fell to be rejected. The commissioner clearly evaluated the probabilities of the evidence presented and made findings in respect thereof.

25. The commissioner concluded that the Second Applicant's version, supported by his witness Sele was unsustainable. She made credibility findings against both the Second Applicant and Sele based on the evidence presented as well as the common cause facts. She found that the Second Applicant’s evidence was inconsistent and that at times he was evasive and argument, leading to the conclusion that he was not a credible witness. She also found that the documentary evidence indicated that the version that the Second Applicant presented at the arbitration was inaccurate regarding both his movements prior to the sobriety test being conducted as well as the undisputed outcome of the breathalyser test that confirmed that the Second Applicant was under the influence of alcohol.

26. The commissioner made the reasonable evaluation that as Sele denied that the Second Applicant smelt of alcohol notwithstanding the evidence of the other witnesses to the contrary and the positive finding of the breathalyser, his reliability as a witness was questionable.

27. The arbitration award records that Sele introduced a new version that the Second Applicant was cleaning his mouth. This relates to Sele’s testimony that the Second Applicant made a smacking sound with his lips when the HR manager leaned towards him to smell his breath. Sele's explanation was that the Second Applicant did so in cleaning his mouth. In this respect, the commissioner correctly recorded that Sele did present a version that was not tested with the First Respondent’s witnesses or corroborated by the Second Applicant.[8]

28. The commissioner specifically found in paragraph 52 of the award that the balance of probabilities favour the evidence of the HR manager as to what transpired and that it was more probable that that the kiss did take place, considering that the Second Applicant's judgment was influenced by the alcohol in his system, the HR manager's proximity to him at that moment as well as his clear feeling of an affinity towards her, as indicated by the WhatsApp message.

29. Having found that the incident occurred as alleged, the commissioner concluded that the misconduct was proven and that dismissal was appropriate.[9]

30. The arbitration award correctly records the evidence presented at the arbitration. The commissioner’s analysis of the evidence and argument indicates an appropriate approach to the assessment of mutually destructive versions. The commissioner assessed the credibility of the various witnesses, the inconsistencies in the evidence presented and ultimately concluded that, in its essence, the evidence of the HR manager was credible and sufficient to prove the misconduct and confirm that the dismissal was fair.

31. There is no gross irregularity in the manner in which the commissioner evaluated the evidence and her analysis of the evidence and the conclusions that she reached are those of a reasonable decision-maker.

32. Certain of the facts that the Applicants rely upon in support of the grounds of review are factually incorrect.[10]

33. The Applicants’ averments regarding the probabilities (whether the Second Applicant would have risked kissing the HR manager at that time, the level of the Second Applicant's intoxication, the HR manager’s reaction and the fact that the sobriety test continued after the incident) are all arguments protesting for a different arbitration outcome. None of those arguments lay a foundation for the review of the arbitration award and they do not substantiate a finding that the Commissioner committed a gross irregularity in the conduct of the arbitration proceedings and/or rendered and arbitration award that a reasonable decision maker could not have made on the material before her.

34. The further grounds upon which the review application is premised relating to the time lapse between the date of the alleged incident and when the Second Applicant was confronted with the allegation was explained in evidence by the First Respondent's witness Kamffer and is sufficiently addressed in the arbitration award. In this regard as well, the Applicants’ complaint does not constitute grounds for the review of the arbitration award.

35. In summary, the commissioner made findings on the credibility of witnesses, the reliability of the evidence presented and the probabilities of that evidence. The fact that the commissioner did not specifically refer to the onus in assessing the evidence is of no moment as the arbitration award indicates that she evaluated the evidence in the manner required of a reasonable decision maker and concluded that the allegation of misconduct was proven.

36. As the numerous grounds upon which the review application is premised are found to be without merit and/or insufficient to sustain an application for the relief sought, the review application must fail.

In the circumstances the following order is made:

Order

1. First Respondent’s application for the condonation of the late filing of its answering affidavit is granted.

2. The review application is dismissed.

3. There is no order as to costs.

G Cassells

Acting Judge of the Labour Court of South Africa

Representatives:

For the Applicants:

Ms Gandidze

Instructed by:

Cheadle Thompson & Haysom Inc.

For the First Respondent:

Adv Maharaj-Pillay

Instructed by:

Webber Wentzel

[1] The supplementary affidavit and contains contradictory averments in respect of this issue, which do not require further consideration

for purposes of the adjudication of this matter

[2] Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curiae) [2013] 11 BLLR 1074 (SCA)

[3] [2015] 1 BLLR 50 (LAC)

[4] Myburgh et al: Reviews in the Labour Courts, LexisNexis (Pty) Ltd, 2015 at page 37

[5] 2003 (1) SA 11 (SCA)

[6] This enquiry also includes whether there was other material presented at the arbitration that the commissioner did not properly have regard for that may otherwise still have resulted in her reaching the decision that she did

[7] The Applicants persist with that construction in the review application notwithstanding that the Commissioner in the arbitration ruled that the conspiracy theory was a matter that fell outside the jurisdiction of the CCMA and required adjudication by this court

[8] A lip smacking sound is consistent with a kiss and supports the version of the HR manager that the Second Applicant kissed her

[9] Although the Applicants attempted in their heads of argument to introduce a challenge against the imposition of dismissal as a sanction, the commissioner’s finding in respect of sanction was not challenged in the review application and correctly so. See Campbell

Scientific Africa (Pty) Ltd v Simmers and others (2016) 37 ILJ 116 (LAC; McGregor v Public Health & Social Development Sectoral

Bargaining Council & others (2021) ILJ 1643 (CC) at para [1] “…today we hold in our hands a constitution that equips us with the tools needed to protect the rights that are violated when sexual harassment occurs.”; Ekurhuleni Metropolitan Municipality v SALGBC and others (2022) 43 ILJ 825 (LAC)]

[10] As appears from a perusal of the transcript of her evidence, the HR manager specifically explained in her evidence why she returned to the Second Applicant after the alleged kiss. This is also recorded in paragraph 62 of the answering affidavit with reference to the transcript of the HR manager’s evidence