South African National Blood Services v Maake NO and Others (JR 2077/10) [2013] ZALCJHB 219 (4 September 2013)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case no: JR2077/10

In the matter between:

THE SOUTH AFRICAN NATIONAL BLOOD SERVICE .............................................Applicant

and

COMMISSIONER JOSIA SELLO MAAKE, N.O. ............................................First Respondent

COMMIsSION FOR CONCILIATION, MEDIATION

AND ARBITRATION ..................................................................................Second Respondent

NEHAWU obo REBECCA MABUNDA .........................................................Third Respondent

Heard: 19 July 2013

Delivered: 4 September 2013

Summary: CCMA arbitration proceedings – dismissal – misconduct – review of proceedings and decision – reasonableness of award – commissioner disregarding evidence - exceeding his powers – considering and deciding issues not called upon to determine – procedural fairness – commissioner’s failure to afford parties opportunity to make submissions on issues he ex post facto deems necessary to determine, but were not raised during arbitration.

JUDGMENT

MALAN, AJ

Introduction

This is an opposed application in terms of which the applicant, the South African National Blood Service (‘SANBS’) seeks to have the arbitration award handed down by the first respondent (‘the Commissioner’) under the auspices of the second respondent (‘the CCMA’) reviewed and set aside. This application has been brought in terms of s 145 of the Labour Relations (‘the LRA’).1

In essence, following the suspension of the employee concerned, namely Mrs Rebecca Mabunda (‘Mabunda’) and pursuant to a disciplinary enquiry, Mrs Mabunda was dismissed on 18 January 2010 for reasons relating to misconduct contended for by the SANBS. Mrs Mabunda’s appeal against the outcome of the disciplinary enquiry was unsuccessful.

Aggrieved by these findings, Mrs Mabunda referred a dispute to the CCMA, contending that her dismissal was unfair. Conciliation failed and the matter proceeded to arbitration. During the arbitration proceedings, only the substantive fairness of Mrs Mabunda’s

dismissal was placed in dispute.2

In an award dated 11 July 2010, the Commissioner determined that Mrs Mabunda’s dismissal by the SANBS was both procedurally and substantively unfair and accordingly ordered the reinstatement of Mrs Mabunda to her former position and ordered the SANBS to pay her back pay. In respect of the second charge levelled against Mrs Mabunda, the Commissioner determined that the SANBS may issue her with a final written warning valid for six (6) months. In respect of the sixth charge against Mrs Mabunda, the Commissioner determined that the SANBS may issue her with a first written warning also valid for six (6) months. It is these determinations by the Commissioner that forms the subject-matter of the review application brought by the SANBS.

The third respondent’s answering affidavit in opposition to the review application was delivered some ten (10) days late.

Accordingly, the third respondent has applied for condonation. I do not regard the delay as inordinate and accept the third respondent’s

explanation for the delay. Applying the criteria for condonation,3 condonation is granted.

Synopsis of relevant factual matrix

The SANBS is a non-profit organisation providing blood transfusion services throughout South Africa. It is responsible for the

collection, testing, storage and distribution of blood and other blood products nationwide. It has various collection centres

throughout the country. Of relevance to the matter under consideration is its collection centre situated in Tzaneen in the

Limpopo Province. The SANBS is also listed as an essential service in terms of the LRA. It has implemented various standard operating

procedures applicable to all its collection centres. This was done in order to ensure consistency, quality and safety, especially

having regard to the unique nature of the services it renders. Regular audits are performed on these collection centres by an

accredited body, namely the South African National Accreditation System (‘SANAS’). This is in order to monitor and ensure adherence to the standard operating procedures by all collection centres and employees.

Mrs Mabunda was employed by the SANBS as a Donor Care Officer at its Tzaneen collection centre since 1 January 2008. Mrs Mabunda is a duly qualified and registered nurse. Mrs Mabunda was the most senior employee at the Tzaneen collection centre. Since April 2009, she was responsible for managing the collection centre and the staff reporting to her. Her duties and responsibilities further entailed ensuring the safe collecting and storing of blood at the Tzaneen collection centre.

Mrs Mabunda reported to Ms Magdalene Viviers (‘Viviers’), the Clinic Supervisor stationed at the collection centre in Louis Trichardt.

On the record it is not disputed that Mrs Mabunda received training with regard to all the SANBS’ standard operating procedures,

in particular the storage of blood prior to its transportation.

On 2 December 2010, an audit was conducted by SANAS relating to the period August 2009 until October 2009. The Tzaneen collection centre was issued with a “major non-conformance” rating by SANAS. This resulted in the collection centre having to close for a period of some three (3) months.

Following the aforesaid, the SANBS suspended Mrs Mabunda on 11 December 2009 and levelled four (4) charges against her. The charges

are dealt with hereunder. Following a postponement of the disciplinary enquiry on 21 December 2009, and prior to any evidence

being been presented, the SANBS levelled an additional two (2) charges against Mrs Mabunda. These charges are also dealt with

hereunder. During the disciplinary enquiry, the SANBS withdrew the third charge against Mrs Mabunda but proceeded on all the remaining charges. The chairperson of the disciplinary enquiry found Mrs Mabunda guilty of all the charges levelled against her (excluding the third charge) and consequently found her dismissal to be the appropriate sanction in the circumstances.

The charges relevant during the arbitration proceedings were as follows:

‘“First charge: Failure to and/or refusal to obey work instructions

In that on 13 November 2009, you were instructed and given tasks by Sr. Viviers to complete (sic) for an audit and you failed and/or refused to carry out such instructions. We got a major conformance on the recent audit.

Second charge: Contravention of company policies: SOP QCL006 and SOP DCD007

In that on 2 December 2009, at the time of the SANAS accreditation temperatures recorded on FRM-QCL-018 for optibags were out of range for 5 days. No proof of corrective action documented as per SOP-QCL-006. Temperatures are also not recorded daily as per SOP.

Fourth charge: Misconduct

In that on 10 December 2009, you left the work unattended to and without permission to do so. You have been warned before on the same or similar misconduct in the past.

Fifth charge: Unauthorised removal of company property

In that on 24 December 2009 you arrived at our donor centre in Tzaneen and took the following documentation, without permission or authorisation: hemacue sheet, leave forms and temperature forms and an outdated SOP for instructions.

Sixth charge: Deliberate contravention of the terms of suspension

In that on 23, 24 and 28 December 2009 you arrived at our donor care centre in Tzaneen, without authorisation. This is against your suspension (conditions) as issued to you on 11 December 2009 of which you signed’.” (sic)

Grounds of review

The SANBS raises three (3) grounds on which it seeks to have the award reviewed and setaid aside. I understand the first ground of review to relate to the Commissioner’s findings (and reasons therefore) concerning the various charges against Mrs Mabunda,

specifically the Commissioner’s conclusion that Mrs Mabunada’s dismissal was substantively unfair. In this regard it is contended on behalf of the SANBS that the Commissioner ignored and/or failed to place sufficient weight on relevant evidence and/or failed to apply his mind to whether the relief granted was reasonable and/or rational and/or appropriate on the evidence before him. On this basis, it is contended further that the Commissioner’s decision constitutes a gross irregularity and the decision that a reasonable decision-maker could not have reached.

The second ground of review relates to the SANBS’ contention that the Commissioner further committed a gross irregularity by concluding that Mrs Mabunda’s dismissal was also procedurally unfair.

The third ground of review concerns the contention that the Commissioner’s decision to order the reinstatement of Mrs Mabunda is a decision which a reasonable decision-maker could not have reached. Moreover, that reinstatement does not constitute an appropriate reasonable remedy in the circumstances.

I deal with the merits of these grounds of review hereunder.

First ground of review

First charge: Failure to and/or refusal to obey work instructions

The Commissioner finds that:

‘“Nowhere in Viviers’ testimony at both the disciplinary hearing and these proceedings is there an indication that the Applicant had either failed or refused to obey her instructions to carry out work’.”

I am of the view that the Commissioner’s failure to take into account and apply his mind to material evidence properly before him resulted in him not fully and fairly determining whether Mrs Mabunda was guilty of this charge. His ensuing decision is thus tainted by unreasonableness resulting in a lack of rational connection between his decision in this regard and the evidence properly before him.4

In arriving at this conclusion, the Commissioner completely disregarded the evidence by Ms Viviers in respect of this charge. Ms Viviers testified, during her evidence in chief, that when instructing Mrs Mabunda to prepare for the SANAS audit, she not only contacted her telephonically in this regard but also sent emails to her and met with her face-to-face. She assisted her with the audit and had no doubt in her mind that Mrs Mabunda knew exactly what was expected of her. If there was any uncertainty, Mrs Mabunda could have contacted Ms Viviers especially in light of the fact that she had an open-door policy and they had a good relationship.5

The Commissioner further disregarded the evidence by Ms Viviers during cross-examination concerning Mrs Mabunda’s failure to follow her instructions in this regard.6 It is important to note that this evidence was not challenged by Mrs Mabunda. On the record, Mrs Mabunda, during her testimony, does not deny that she failed to prepare for the SANAS audit as instructed by Ms Viviers.7

Mrs Mabunda attempts to seek justification for her failure to comply with Ms Viviers instructions on the basis that she was out of the office on the day in question. Consequently, so she contends, she had limited time upon her return to prepare for the audit because it was her last working day as she was about to go on leave. Ms Kazee, who appeared on behalf of the SANBS at the hearing of this matter, however, argued that the Commissioner failed to apply his mind to the fact that Mrs Mabunda even failed to carry out the instructions upon her return from leave on 27 November 2010, and that no explanation was offered for such failure. I am in agreement with this submission. The Commissioner clearly also failed to apply his mind to this material part of the evidence before him.

A symptom of the Commissioner’s failure aforementioned is that he proceeded to also ignore the serious consequences of Mrs Mabunda’s failure. In other words, the major non-conformance rating issued by SANAS pursuant to its audit and the subsequent

closure of the Tzaneen collection centre for a period of three (3) months.

The Labour Appeal Court has stated as follows in Andre Herholdt v Nedbank Limited8:

‘Where a commissioner fails to have regard to material facts, this will constitute a gross irregularity in the conduct of the arbitration

proceedings because the commissioner would have unreasonably failed to perform his or her mandate and thereby have prevented the

aggrieved party from having its case fully and fairly determined. Proper consideration of all relevant and material facts and issues is indispensable to a reasonable decision and if a decision-maker fails to take account of a relevant factor which he or she is bound to consider, the resulting decision will not be reasonable in the dialectical sense. Likewise, where a commissioner does not apply his or her mind to the issues in a case the decision will not be reasonable.’9

The Sidumo test has been confirmed in Edcon Ltd v Pillemer NO and Others,10 where it was further held that the focal point of the enquiry into arbitration awards in review applications is the reasonableness of the award and that the Court should focus not only on the conclusion arrived at, but also on the material before the Commissioner when making the award.11

The Commissioner’s conclusion that Mrs Mabunda’s conviction in respect of this charge was unsupported by the evidence

is unreasonable having regard to all the material evidence that was properly before him.12 I am of the view that the evidence supports the conclusion that Mrs Mabunda is guilty of this charge.

Second charge: Contravention of company policies

This charge comprise of three components, namely Mrs Mabunda’s alleged failure to record the temperatures of the collected blood daily as required in terms of the standard operating procedure. Secondly, the allegation that the daily temperature chart forms reflect that the blood was beyond the acceptable temperature range without any corrective action being taken. Lastly, the alleged failure by Mrs Mabunda to keep record of the hemacue daily check for the period 4 September 2009 until 7 September 2009.

Having regard to the Commissioner’s findings in respect of this charge it is evident, at least to me, that the Commissioner

clearly failed to identify and appreciate the different components to this charge. As a result of this failure, the Commissioner failed to apply his mind to the third component (aforementioned) of this charge. Consequently, the Commissioner completely disregarded the evidence by Ms Grobler, the head of collections who testified in this respect on behalf of the SANBS during the arbitration

proceedings.13 The Commissioner did not deal with this aspect in any way whatsoever. This is not the conduct of a reasonable decision-maker.

It was submitted by Mr Maraka, who appeared on behalf of the third respondent, that the Commissioner dealt with this third aspect of the second charge in paragraph 5.3.2 of his award and therefore there is no merit in the attack by the SANBS on the award in this regard.14 This submission is simply incorrect. Paragraph 5.3.2 of the Commissioner’s award is nothing more than an extract of the

second charge as it appears in the notice to attend the disciplinary enquiry. The Commissioner did no more. He failed to deal with or even reason though this part of the charge. This constitutes a gross irregularity.

The evidence presented during the arbitration proceedings leads to the inescapable conclusion that Mrs Mabunda failed to keep record of the hemacue daily check for the period 4 September 2009 until 7 September 2009, despite being well aware what was required of her in this regard. Mrs Mabunda did not present any reasonable or acceptable evidence to justify her failure. Consequently, Mrs Mabunda is guilty in this regard.

Insofar as Mrs Mabunda’s failure to record the temperatures of the collected blood daily is concerned, the Commissioner found her failure to be excusable due to the fact that it was common cause that she was on sick leave during the relevant days (18 to 20 August 2009 and 25 to 27 August 2009).15

The Commissioner clearly misunderstands the nature of the enquiry he was duty-bound to undertake. The issue was not whether Mrs Mabunda was on sick leave during the days in question, but the fact that she recorded in the relevant forms merely the words “sick”, without taking any steps to establish who checked the temperatures of the collected blood on the days in question and what these temperatures were in order to ensure that the temperatures were recorded. If the Commissioner had regard to the evidence of Ms Grobler in this regard, the Commissioner would have appreciated the aforesaid facts and the nature of his enquiry in this regard.16

Moreover, the Commissioner does not mention or reason his way through the evidence that on 9 October 2009 Mrs Mabunda failed to make any entry in the daily temperature chart form.

The Commissioner further failed to appreciate or even deal with the seriousness of Mrs Mabunda’s failure aforementioned and the consequences thereof. Mrs Mabunda’s failure resulted in the inability of the Tzaneen collection centre to determine whether the temperatures at which the blood was stored during those days rendered the blood unsafe for use. In addition, this resulted in the Tzaneen collection centre effectively failing the audit. Therefore, the Commissioner’s conclusion that Mrs Mabunda’s conviction in this regard is unsupported by the evidence is completely unfounded and unreasonable.

The Commissioner correctly found that Mrs Mabunda was guilty of failing to take any corrective action as required in terms of the standard operating procedure, for those five (5) days when the temperatures recorded for the blood was out of range. (There is no cross-review on behalf of the Mrs Mabunda on this finding.)

The Commissioner found, however, that dismissal was not the appropriate sanction in respect of this misconduct by Mrs Mabunda.

The Commissioner’s conclusion in this regard is unreasonable. Firstly, the Commissioner disregarded the evidence by Ms Grobler that Mrs Mabunda’s misconduct constitutes a level 2 transgression in terms of the SANBS’ disciplinary rules which carries the sanction of dismissal.17 The Commissioner then proceeded to find that a final written warning valid for six (6) months would be an appropriate sanction in these circumstances. It appears that the Commissioner attempts to find justification for this lesser sanction on the grounds that: (1) Mrs Mabunda was relatively new in her position; (2) she was overwhelmed by her workload; (3) she had not been guilty of similar misconduct in the past; (4) she is the sole breadwinner and the sanction of dismissal will have devastating consequences; and (5) she is not a negative or aggressive person.

Having regard to the Commissioner’s award, the Commissioner only gave consideration to the position and interest of Mrs Mabunda and completely disregarded the position and interest of the SANBS in order to make a balanced and equitable assessment concerning the nature and consequences of the misconduct and the continuation of the employment relationship in toto.

In De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and& Others18 it was held as follows, per Conradie JA:

‘“Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise’.”

This is precisely the case in this instance. The Commissioner disregarded the evidence that Mrs Mabunda was not new in performing

this specific task. The Commissioner disregarded the evidence of Ms Grobler that Mrs Mabunda had received training on the SANBS’s

standard operating procedures in this regard. Moreover, the undisputed evidence was that Mrs Mabunda had carried out this task

in the past without any difficult. There was no evidence by Mrs Mabunda that she was unable to do so or did not understand this part of her duties that she was required to perform. It is evident that Mrs Mabunda was well aware of what was expected of her in this regard but simply failed to do so.

I have also no doubt in my mind that Mrs Mabunda was well aware of the serious consequences of her failure to perform this part her responsibilities properly. Her failure clearly jeopardised the quality and safety of the donor blood and had serious consequences

for the Tzaneen collection centre, in that it failed its audit and resulted into its closure for a period of three months.

In the premises, I find that the Commissioner’s substitution of the sanction of dismissal for that of a final written warning

valid for six months, not to be reasonable given the evidence properly before him. In terms of the SANBS’ disciplinary rules Mrs Mabunda’s misconduct constitutes a transgression which carries the sanction of dismissal. The aforesaid notwithstanding,

this misconduct by Mrs Mabunda should not be considered in isolation in determining the appropriate sanction and whether the trust relationship had been irreparably harmed. Her misconduct should be seen as a whole and in conjunction with the other charges of misconduct of which she was also guilty.

Fourth charge: Misconduct in that she left the collection centre unattended without permission

On 10 December 2009, Mrs Mabunda left the Tzaneen collection centre unattended and without permission to do so. This much appears to be common cause.

The Commissioner finds that Mrs Mabunda was justified in leaving because she fell ill that afternoon.

In Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and& Others,19 Zondo JP stated as follows:

‘“It will often happen that, in assessing the reasonableness or otherwise of an arbitration award or other decisions of a CCMA Commissioner,

the Court feels that it would have arrived at a difference conclusion or finding to that reached by the Commissioner. When that happens, the Court will need to remind itself that the task of determining the fairness or otherwise of such a dismissal is in terms of the Act primarily given to the Commissioner and that the system would never work if the Court would interfere with every decision or arbitration award of the CCMA simply because it, that is the Court, would have dealt with the matter differently. Obviously this does not in any way mean that decisions or arbitration awards of the CCMA are shielded from the legitimate scrutiny of the Labour Court on review’.”

Ms Kazee submitted that the Commissioner, in arriving at the abovementioned conclusions in respect of the fourth charge, failed

to apply his mind to the following evidence: Whilst Mrs Mabunda was not required to work in the circumstances, she was still required, in terms of the SANBS’ operating procedure to give her managers two hours to make alternative arrangements to ensure that the collection centre remained open for donations. Consequently, she contended further, nothing precluded Mrs Mabunda from waiting inside the collection centre until relief could be arranged. Mrs Kazee submitted further that the Commissioner disregarded the unique nature of Mrs Mabunda’s role and the consequences of her failure to adhere to the standard operating procedures. Lastly, it was contended that the Commissioner disregarded the fact that Mrs Mabunda had previously received a written warning for leaving the collection centre without following the correct procedure.

Mr Maraka, who appeared on behalf of the third respondent, contended that this attack on behalf of the SANBS does not necessarily

constitute reviewable misconduct on the part of the Commissioner.

Although I feel that I would have perhaps arrived at a different conclusion or finding to that reached by the Commissioner in this regard, in adopting the approach in the Fidelity Cash Management Service case, I do not believe that the Commissioner’s findings in this regard falls to be reviewed and set aside. Although I do not necessarily agree with the Commissioner’s reasoning, I do not believe that his findings are that which a reasonable decision-maker could not arrive at. In the circumstances and in so far as the first ground of review relates to the fourth charge, it must fail.

Fifth charge: unauthorised removal of company property

This charge was added following Mrs Mabunda’s suspension. It relates to the allegation that on 24 December 2009 Mrs Mabunda,

without permission or authorisation removed certain documentation from the Tzaneen collection centre. The Commissioner found that the witnesses who testified during the disciplinary hearing in support of this charge did not testify during the arbitration proceedings and consequently there was no proper evidence before him during the arbitration proceedings in support of this charge.

Mrs Mabunda denied the removal of the documentation as alleged by the SANBS, save for her leave application forms On the record, I can find no evidence properly before the Commissioner save for some hearsay evidence to support a finding of guilty in respect of this charge. No explanation was offered on behalf of the SANBS why the witness that gave direct evidence during the disciplinary enquiry was not called during the arbitration proceedings in this regard.

Consequently, the Commissioner’s findings in respect of this charge cannot be said to be unreasonable. In the circumstances and in so far as the first ground of review relates to the fifth charge, it must fail.

Sixth charge: Deliberate contravention of the terms of suspension

This charge relates to the contention that on 23, 24 and 28 December 2009 Mrs Mabunda arrived at the Tzaneen collection centre without authorisation.

I understand that the SANBS does not take issue with the Commissioner’s finding that Mrs Mabunda is guilty of this charge. However, I understand that the SANBS does take issue with the Commissioner’s finding that a first written warning valid for six months is an appropriate sanction in these circumstances. The Commissioner concluded that this transgression was a minor

offence and having regard to the mitigating factors, dismissal was not the appropriate sanction in the circumstances. It is the latter part that forms the focus of the attack on the Commissioner’s finding in this regard.

I do not consider the Commissioner’s conclusion insofar as it relates to the appropriate sanction for this specific charge, seen in isolation, to be unreasonable. However, Mrs Mabunda’s misconduct in this regard should be seen in the light of all the other charges of misconduct of which she is guilty. I deal with this again later hereunder.

Second ground of review

The second ground of review is aimed at the Commissioner’s finding that the ‘“global dismissal sanction by the hearing chairperson’” is ‘“highly irregular, for it is highly important that a separate sanction should be considered and be imposed in respect of each individual charge’”.

Despite procedural fairness not being an issue which the Commissioner was called upon to determine, the Commissioner then proceeded, for reasons unknown, to take it upon himself to consider the procedural fairness of Mrs Mabunda’s dismissal. He concluded that the dismissal was procedurally unfair on the basis mentioned in the aforegoing paragraph.

The third respondent did not place the procedural fairness of Mrs Mabunda’s dismissal in dispute. Consequently, this was not an issue which the Commissioner was called upon to determine. It is therefore not surprising that neither of the parties presented any evidence in this regard. Moreover, the Commissioner did not afford either of the parties, in particular the SANBS, an opportunity to present any evidence or make any submissions in this regard, prior to proceeding to make a determination regarding the procedural fairness of the dismissal.

If a Commissioner deems it necessary to make a finding on any one or more issues that did not arise during the arbitration proceedings

and which he or she did not require the parties to address him or her on prior to giving an award, I am of the view that fairness

dictates that the Commissioner is duty bound to, at the very least, invite the parties to make submissions on such a specific issue, prior to giving the award. To hold otherwise would be to deny the parties the benefit of a fair hearing and render such conduct subject to review. Dialectical and substantive reasonableness are intrinsically inter-linked and latent process irregularities carry the inherent risk of causing an unreasonable substantive outcome.20

This part of the review is clearly process-based. In Southern Sun Hotel Interests (Pty) Ltd v CCMA and oOthers21 van Niekerk J held that a CCMA award is reviewable where it is shown that the commissioner’s process related conduct is found wanting. Van Niekerk J expressed further the opinion that the reasonableness requirement is relevant to both process and outcome. In other words an award will be reviewable if it suffers either from dialectical unreasonableness or is substantively unreasonable in its outcome.

Not only did the Commissioner exceed his powers in respect of the issues which he was called upon to determine, but I find his conduct to be irregular. The Commissioner’s decision in this regard is not that of a reasonable decision-marker. Consequently, this ground of review must succeed and the Commissioner’s findings in this regard are reviewed and set aside.

Third ground of review

The third ground of review relates to the Commissioner’s decision that he disagreed that the employment relationship had

irretrievably broken down and consequently that dismissal was the appropriate sanction.

Once again, the Commissioner failed to give consideration to the position and interest of both parties in order to arrive at a balanced and equitable assessment with regard to the continuation of the employment relationship. The Commissioner appears to have attached insufficient weight to the evidence regarding the specialised nature of the business operations of the SANBS and the severe consequences that followed as a result of the misconduct by Mrs Mabunda, which consequences I have already dealt with hereinabove.

Weighing up the evidence before the Commissioner concerning Mrs Mabunda’s misconduct, seen as a whole, I find that a

reasonable decision-maker could not have concluded that the appropriate sanction is anything less than a dismissal in the circumstances. Mrs Mabunda’s misconduct and the serious consequences thereof are clearly irreconcilable with the continuation of the employment relationship and incompatible with the operational requirements of the SANBS.

In the premises, I do not regard the Commissioner’s decision insofar as the continuation of the employment relationship is concerned to be reasonable.

Conclusion

In the final analysis, I find that, notwithstanding the individual manifestations referred to above, the award is reviewable on account of the Commissioner’s overall failure to apply his mind to the matter and the evidence properly before him, which constitutes gross irregular conduct.

The Commissioner’s failure to apply his mind is further evidenced by his arbitrary and capricious conduct and the fact that he misconstrued evidence, took into account irrelevant evidence and failed to take into account relevant evidence. In addition, and for essentially the same reasons, the Commissioner exceeded his powers by issuing an award that is manifestly unfair towards the SANBS and the proper and safe operations.

In the premises, I find that the Commissioner’s conduct in issuing the award falls to be reviewed and set aside for want of reasonableness insofar as the Commissioner failed to take into account material evidence properly before him, which he was bound to take into account and issued an award which is not reasonably supported by the evidence before him.

Costs

Finally, in relation to the issue of costs. In the exercise of the discretion conferred on me by s 162 of the LRA, the requirements of the law and fairness dictate that there should be no order as to costs. The reason for setting aside the award is ultimately one related to the conduct of the Commissioner, and the opposition to the application was neither vexatious nor frivolous.

Order

In the premises, I make the following order:

The award by the Commissioner under case number LP1163-10 dated 11 July 2013 is hereby reviewed and set aside.

The Commissioner’s finding is substituted with the following:

‘“The employee’s dismissal is both substantively and procedurally fair.

There is no order as to costs’.”

_______________

Malan AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Ms S Kazee, Bowman Gilfillan Attorneys

For the Third Respondent: Mr M S Maraka, Thaanyane Attorneys

1Act 66 of 1995 (as amended)

2Record: p 291, lines 9 & 10

3Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C-F

4See: Gaga v Anglo Platinum Ltd and& Others (2012) 33 ILJ 329 (LAC); Also at [2012] 3 BLLR 285 (LAC)

5Record p 416, lines 15 – 25 (transcript)

6Record p 422, lines 20 – 25 and p 423, lines 1 – 6 (transcript)

7Record p 376, lines 4 – 26 (transcript)

8(2012) 23 ILJ 1789 (LAC)

9at para 36.

10(2009) 30 ILJ 2642 (SCA).

11Ehrke v Standard Bank of SA and& OthersAnother (2010) 31 ILJ 1397 (LC) at p 1404, par [19] F-H.

12Sidumo and& Another v Rustenburg Platinum Mines Ltd and& Others 2008 (2) SA 24 (CC); also reported at (2007) 28 ILJ 2405 (CC) and also at [2007] 12 BLLR 1097 (CC) at para 78 at (2007) 28 ILJ 2405 (CC) and also at [2007] 12BLLR 1097 (CC) at para 78

12Sidumo and& Another v Rustenburg Platinum Mines Ltd and& Others 2008 (2) SA 24 (CC); also reported at (2007) 28 ILJ 2405 (CC) and also at [2007] 12 BLLR 1097 (CC) at para 78

at (2007) 28 ILJ 2405 (CC) and also at [2007] 12BLLR 1097 (CC) at para 78

13Record: pp 319 – 332 (transcript)

14See Third respondent’s heads of argument: p 19, para 20

15Record: p 284, para 5.3.6.2.2 (the award)

16Record: p 303, lines 10 – 26, pp 304, 305, 306 and 307, and p 354 (transcript)

17Record: p 346, lines 13 – 26

18(20002) 21 ILJ 1051 (LAC) at para.22.1058C-D

19(2008) 29 ILJ 964 (LAC) at 995H-I, para [98.]

20Andre Herholdt v Nedbank Limited (2012) 23 ILJ 1789 (LAC) at par [39]; Also see Afrox Healthcare Ltd v Commission for Conciliation,

Mediation and& Arbitration and& oOthers (2012) 33 ILJ 1381 (LAC); [2012] 7 BLLR 649 (LAC); and Gaga v Anglo Platinum Ltd and& oOthers (2012) 33 ILJ 329 (LAC); [2012] 3 BLLR 285 (LAC). In each case aforementioned, the LAC either set aside or confirmed the setting aside of the award on review predominantly on the basis of process-related grounds of review.

21 [2009] 11 BLLR 1128 (LC).