Tsholo v Commission For Conciliation, Mediation and Arbitration and Others (JR67/2022) [2024] ZALCJHB 396 (4 October 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 67/2022

In the matter between:

TSHEPO TSHOLO Applicant And COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION First Respondent KATLEHO MASHILO N.O Second Respondent INGRAIN SA (PTY) LTD Third Respondent

Heard: 28 August 2024

Delivered: 4 October 2024

This judgment was handed down electronically by consent of the parties by circulation to them via email. The date for hand-down is deemed to be on 4 October 2024.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Third Respondent (Respondent) is the producer of starch intended for the paper manufacturing, pharmaceutical, building material, adhesive, food and beverages industries. The Respondent employed the Applicant in May 2016 as its financial manager at the Kliprivier Mill.

[2] As part of its operations and in terms of the ‘purchasing work instructions manual’ (the manual), the Respondent conducts a monthly stock count to ensure an as close as possible stock count of all stock for determination of the monthly yield and valuation process.

[3] The manual provides that during the monthly stock count, the Applicant, in his capacity as the financial manager, assumes the duties of the stock count controller, responsible for the overall coordination and approval of stock count results, which results are uploaded on the SAP system. The manual regulates how the monthly stock count should be conducted.

[4] On 1 September 2020, a charge sheet was issued to the Applicant. The disciplinary hearing commenced in September 2020 and was concluded in December 2020. On 7 December 2020, the Applicant was dismissed and he lodged an internal appeal, which was dismissed on 30 December 2020. He was found guilty of the following charge:

‘Gross negligence – the failure to exercise the degree of care expected from you in relation to the following transactions:

1. Failure to adhere to stock take protocols and controls which lead to discrepancies in SAP and physical stock as a result incurred R1.28 million efficiency loss for July month end and report.’

[5] Aggrieved by the outcome, the Applicant referred an unfair dismissal dispute to the First Respondent (CCMA). The dispute was arbitrated and an arbitration award was issued on 5 December 2021. The Second Respondent (arbitrator) found that the Applicant’s dismissal was procedurally and substantively fair and his case was dismissed. The said award is the subject of this review application.

[6] In order to assess the arbitrator’s findings and the grounds for review raised by the Applicant, it is necessary to consider the evidence adduced at the arbitration proceedings, as well as the charge that the Applicant was found guilty of and dismissed for.

[7] In narrowing the issues, the Applicant indicated that his claim of procedural unfairness related to the fact that the Respondent acted in breach of its disciplinary code and because the chairperson of his disciplinary hearing, who was the general manager from the Meyerton Mill, had an interest in the case and she covered for the initiator. On substantive unfairness, the Applicant’s case was that he was held responsible for functions which were not his and as such, he was found guilty in respect of responsibilities that were not his. Furthermore, “the rules that were used were misapplied to the issues that do not govern them. Log sheets do not govern and are not controlled by month end procedures”. The Applicant also disputed that the trust relationship was damaged. In short, the Applicant stated that he did not dispute the existence of the rule or that it was known to him, he disputed that it was applied appropriately.

The Respondent’s case

[8] The Respondent’s first witness, Ms Dladla, testified that she is employed by the Respondent as a general manager and she chaired the Applicant’s disciplinary hearing.

[9] The transcribed record filed by the Applicant is extremely difficult to read and was of very little assistance to this Court to some extent. It is evident from the transcript that Ms Dladla was sworn in as a witness for the Respondent and instead of Mr Daniels, the Respondent’s representative posing questions to Ms Dladla, the Applicant is posing questions to a person only indicated as ‘witness’, with material parts of the evidence either not audible or properly transcribed to enable this Court to follow the line of questioning and the answers provided.

[10] It is further evident from the transcript that the arbitrator on several occasions pleaded with the Applicant to ask questions to enable him to deduce evidence. The transcript indicates that the Applicant did not pose questions that were understandable and which this Court is able to follow for purposes of this review application.

[11] To illustrate the state of the transcribed record:

‘Commissioner: …you making this difficult, I can’t deduce evidence, I put to you, you ask the question.

Tshepo Tsholo: Thobile, you say my actions…

Witness: …. (inaudible) financial control…

Tshepo Tsholo: Actions that leads to financial loss

Witness: For that month, there was a lot of loss

Tshepo Tsholo: Are you saying….

Witness: I am saying, that month end there was 1.28 million loss that was incurred

Tshepo Tsholo: … in those days … stock

Witness: I am saying the data… and then loss

Tshepo Tsholo: The charge is accounting irregularities

Witness: There were protocols and controls which you did not adhere to and one of them for me…

Tshepo Tsholo: Which rule…

Witness: You did not consider all of that, information come from production… (inaudible)

Tshepo Tsholo: You are saying that the rules that I transgressed are the rules that sit on month end, with stock count, page …

Witness: … I think there is another memorandum…

Tshepo Tsholo: So that is the rule that I transgressed

Witness: The rule that you transgressed was not considering all protocols

Tshepo Tsholo: That rule sits on page?

Witness: If you go to Appendix, page… It talks about collaboration, collating information… unfortunately it is not different. Had you checked you could have seen

Tshepo Tsholo: Are you saying that at one point I was instructed to go and check and I said no, I didn’t check?

Witness: In the hearing you said General Manager…

Tshepo Tsholo: Was I not there with…

Witness: Yes

Tshepo Tsholo: And…

Witness: Commissioner, I am not sure where you are coming from… so please you don’t...

Commissioner: She was the presiding officer… you can ask Thobile, Thobile is the Initiator… and then she will respond, is it clear?

Tshepo Tsholo: Thobile in a month of June, how many …

Witness: Quite a number

Tshepo Tsholo: It is 350 tons

Witness: I don’t know

Tshepo Tsholo: Page….

Witness: I am not sure how, so I am…

Tshepo Tsholo: In the hearing itself…

Witness: Are you asking me a question?

Tshepo Tsholo: Yes, if follow you correctly, were the any separation issues, or something was not separated correctly? …..

Witness: If it was that huge, you should have seen it, 181, is a lot

Tshepo Tsholo: I agree with you.’

[12] The applicant in a review must furnish the Registrar and each of the other parties with a copy of the record or portion of the record, as the case may be. On receipt of the record, the Registrar issues a notice in terms of Rule 7A (5) that the record has been received and may be uplifted, and requiring the applicant to collect the record within seven days. The applicant must make certified copies and furnish the Registrar and each of the other respondents with copies of such portions of the record as may be necessary for the purposes of the review.

[13] Where the entire recording is lost or where the entire recording (or material portions thereof) is inaudible and it has been established that the record is necessary for the Court to decide the review application, the parties should attempt to reconstruct the record.

[14] In Department of Transport, North West Province v Sebotha No and Others[1], the Court, considering the test to be applied in an application for review, held that in the absence of a proper record, it is unable to determine whether or not there is a basis for the criticism against the commissioner’s findings and said that:

‘[17] …In order to apply the above test the court needs to have before it the record of the arbitration proceedings. As a general rule the complete record of everything that transpired during the arbitration proceedings needs to be placed before the court….

[18] The responsibility to ensure that a proper and complete record is placed before the court rests with the applicant. Failure to place before the court a complete record by the applicant could result in the dismissal of the review application on that ground alone.’

[15] In casu, the Applicant made no effort to reconstruct the record or to ensure that a better version of the record was placed before this Court. Notwithstanding this failure, this Court can decide the review application based on the record that is available and the arbitrator’s summary of the evidence, due to the limited grounds for review on procedural fairness.

[16] The Respondent’s second witness was Mr Mashinini, the initiator during the disciplinary hearing. He explained that he was the general manager in terms of distribution and he was responsible for the overall performance in terms of output and the Applicant reported to him. He explained that he was provided with the efficiency report for the plant for July 2020 and he noticed that something was wrong around efficiency and there was a loss in terms of quantities and money. He called the Applicant to explain the incident and the Applicant indicated that there was nothing wrong, the figure was stock that was reworked but the explanation was not satisfactory. Mr Mashinini made it clear that they have not re-worked that much and he requested him to re-investigate the problem so that they could properly understand what had transpired. The same instruction was given to the production manager.

[17] The Applicant was adamant that he would not re-investigate anything, despite Mr Mashinini’s instruction. Instead, he joined the production team that went out to recount the Gluten 60 stock. In cross-examination, it was put to Mr Mashinini that the Applicant was assisting the investigation by going with the production team to recount, but Mr Mashinini disputed this version. He explained that the instruction was clear and the Respondent wanted to discover what had happened and in the process where two managers were involved, production and finance, and he wanted an explanation as to what had happened in both production and finance. He reiterated that the instruction to the Applicant was clear in terms of what he had to do, but he insisted that there was nothing wrong with his worksheets and instead, he went with the production team to recount the stock. It was undisputed that the Applicant’s participation in the stock recount was not in compliance with the instruction from Mr Mashinini.

[18] In cross-examination, it was put to Mr Mashinini that the Applicant was not insubordinate. He disputed that and testified that the Applicant did not do what he was instructed to do, he did not cooperate when he was specifically instructed to investigate from the finance side and he never reported back, as he was instructed and expected to do because Mr Mashinini was expecting an explanation for the excessive loss.

[19] Mr Mashinini explained that to close a month, a month-end report is prepared where a physical stock count is done, a stock sheet is prepared and the information is captured and consolidated. The financial manager is responsible for this consolidation process, whereafter the report would be sent to Mr Mashinini and if there are red flags or variances, it would be discussed. For July 2020, the Applicant did not pick up or discuss any of the variances with Mr Mashinini and he testified that it was unusual and that was why he told them to go back and check to explain the shortage and the problems in the report.

[20] Mr Mashinini explained that it was not unusual to go back and check and recount if the numbers did not make sense, but the Applicant was resistant and his behaviour was hostile and weird. He explained the Applicant’s conduct as strange. Mr Mashinini testified that he had asked the Applicant to go back and recount and when he came back, he could not explain the figures and when Mr Mashinini went back to him, he insisted that the figures were correct. He approached the human resources department for assistance, as he needed answers before the close of the month and it was decided to suspend the Applicant.

[21] He explained that the Respondent did a monthly stock take to ensure that the physical stock count accords with what is recorded on the system – what is seen on the system must exist on the floor. The physical counting is done twice a month, at mid-month and the end of the month. In July 2020, there was a discrepancy that was unaccounted for and unexplained, the finance manager acted in a peculiar manner in that he refused to participate in an investigation and after he was suspended, the Respondent investigated the discrepancy and found that there were anomalies in the data. It presented a serious problem because “you are sitting with theoretical stock that is not possibly in the business and you are sitting with a business performance that has misled the business what the actual performance of the business is like”.

[22] He testified that the integrity of the stock information is key to the operation of a business, whether it be for gains or losses. It became clear that the stock was not balancing because old information was put into the system. Mr Mashinini was of the view that dismissal was a fair sanction because the Applicant should have assisted with the investigation, come clean and taken corrective measures, but instead, he acted dishonestly by pointing fingers at others and pretending not to know what had happened. The Applicant presented results which were misleading and as a result, the trust relationship was broken. Mr Mashinini emphasized that the Applicant showed no remorse and never took responsibility for the impact of his conduct on the Respondent.

[23] It is evident that during the cross-examination of Mr Mashinini, the arbitrator attempted to assist the Applicant and guided him on the process when he advised the Applicant that he needed evidence from him. The arbitrator guided the Applicant by indicating that he had to put a version to a witness and provide proof of the version he wanted the arbitrator to accept and that he should not ask irrelevant questions which might not add value to the issues to be decided, and that absent such approach, he was “merely making a dialogue”.

The Applicant’s case

[24] The Applicant testified that he had prepared the report based on the information he had received from the materials manager at the end of the month and he explained that the problems with the stock in August 2020, were due to the ‘poor separations’ for the month, meaning that the product was not split properly, which resulted in incorrect numbers, for instance the product Gluten 60, instead “of going where it needed to, it ended up going to maize germ because we could not separate it properly”.

[25] The Applicant testified that he had always obeyed his manager’s instructions and there has never been an instance where he was dishonest or not doing his work. The Applicant’s version was that on the first report presented to his manager, which was a provisional report until it was approved by the general manager, he raised concerns with his manager about the correctness of the figures and he asked whether it was possible that some of the “product has gone into the wrong place?” and in the meeting, they were instructed to do a recount. The recount was done because it was agreed that the “number doesn’t truly reflect”. After the recount, they produced the final report which was a ‘production variant report’. The Applicant testified that

the stock count was not his responsibility.

[26] The Applicant testified that Mr Mashinini did not tell him to investigate the finance side and that he did not specify where the investigation must be done, hence he did the investigation with the production side. This differed from Mr Mashinini’s version, yet in cross-examination, Mr Mashinini’s version was not disputed. The Applicant was asked in cross-examination why he did not dispute Mr Mashinini’s version and he responded: “[Y]es there was an instruction to go and investigate in finance and I did do that investigation, and I came back and said as confirmed by the initiator himself”. The initiator denied that the Applicant investigated finance and on the Applicant’s own version, he went to investigate with the production team.

[27] In respect of procedural fairness, the Applicant testified that he was informed on Friday 11 September 2020, after hours, that his disciplinary hearing would take place on Tuesday, 15 September 2020, which was against the Respondent’s policy, as he had to be given 96 hours notice of the disciplinary hearing. The Applicant complained about this and his disciplinary hearing was rescheduled to another date.

[28] The Applicant’s case was that the chairperson of his disciplinary hearing was biased because “first, at the performance…failed of the Gluten 60 that she had to sell it to Tongaat Hullets, that ton (sic) that was sent to Kliprivier was major toll for the initiator because he could not process them as efficiently as he would have liked. That is the first part. The second part commissioner is from the presiding officer’s findings…… she went to Meyerton and Germiston mill to check whether their way of working was in confirmation with what the initiator has said had happened”. According to the Applicant, this was in violation of the Respondent’s code and procedures which provide that the chairperson shall only have regard to admissible evidence in determining guilt or otherwise of the employee. The chairperson went outside the disciplinary hearing to look for information to confirm what the initiator had put forward.

[29] In cross-examination, it was put to the Applicant that the chairperson recorded that “to ensure that alignment of this process as alluded by the initiator is consistent within the group, I checked with Meyerton and Germiston Mills whereby confirmation was given that SAP adjustments are done based on rework volumes from production as opposed to what has been moved into production by the materials department. This aligns with the process that the initiator indicated should be happening”. The Applicant did not dispute that what the chairperson intended was to ensure that there was alignment of the process, as described by the initiator and that the same process was found at Meyerton and Germiston.

Analysis of the arbitrator’s findings and the grounds for review

The test on review

[30] I have to deal with the grounds for review within the context of the test that this Court must apply in deciding whether the arbitrator's decision is reviewable. The test has been set out in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[2] (Sidumo) as whether the decision reached by the commissioner is one that a reasonable decision maker could not reach. The Constitutional Court held that the arbitrator's conclusion must fall within a range of decisions that a reasonable decision maker could make.

[31] The Labour Appeal Court (LAC) in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others[3] affirmed the test to be applied in review proceedings and held that:

‘In short: A reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable.’

[32] The applicant in a review application is not to take a microscopic view and dissect every finding of the arbitrator but has to show that holistically, the award is unreasonable or that the arbitrator’s findings led to an unreasonable outcome.

[33] In considering the Applicant’s grounds for review, this Court should not lose sight of the limited scope within which a review application is to be decided.

[34] In Head of the Department of Education v Mofokeng and others[4] (Mofokeng), the LAC provided the following exposition of the review test:

‘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 inquiry. 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 inquiry, 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.’

[35] The review Court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each of those factors and then determine whether a failure by the arbitrator to deal with it is sufficient to set the award aside. This piecemeal approach of dealing with the award is improper as the reviewing 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.[5]

[36] In Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Legobate[6], the LAC confirmed the test to be applied on review:

‘[12] The test that the Labour Court is required to apply in a review of an arbitrator’s award is this: “Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?” Our courts have repeatedly stated that in order to maintain the distinction between review and appeal, an award of an arbitrator will only be set aside if both the reasons and the result are unreasonable. In determining whether the result of an arbitrator’s award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrator’s reasoning is found to be unreasonable, the result is nevertheless, capable of justification for reasons other than those given by the arbitrator. The result will, however, be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator.

[13] An award will no doubt be considered to be reasonable when there is a material connection between the evidence and the result or, put differently, when the result is reasonably supported by some evidence. Unreasonableness is, thus, the threshold for interference with an arbitrator’s award on review.’

[37] The review test to be applied in casu is a stringent and conservative test of reasonableness. The Applicant must show that the arbitrator arrived at an unreasonable result.

[38] It is within the context of this test that I have to decide this application for review.

The arbitrator’s findings

[39] The arbitrator had to determine whether the Applicant’s dismissal was procedurally and substantively fair.

[40] The arbitrator ultimately found that the Applicant’s dismissal was procedurally and substantively fair.

Procedural fairness

[41] On the question of procedural fairness, the arbitrator considered that the Applicant was subjected to a disciplinary hearing, as prescribed by the Code of Good Practice: Dismissal[7], he was afforded ample time to prepare his case as the first sitting of the disciplinary hearing was postponed, he was represented by a shop steward, his rights were read to him, he was afforded an opportunity to state his case and to cross-examine the Respondent’s

witnesses, he was given an outcome at the end of the hearing and he could appeal the outcome.

[42] On the issue of bias, the arbitrator recorded that the Applicant conceded under cross-examination that the aligning of evidence by the chairperson happened in the process of the disciplinary hearing and he found that there was no reason to suggest that the chairperson was biased.

[43] He found that the Respondent discharged the onus to prove that the Applicant’s dismissal was procedurally fair and the Applicant was unable to rebut the Respondent’s evidence.

[44] The Applicant submitted that the aforesaid finding on procedural fairness was one which a reasonable decision maker could not have reached, for the reasons set out in his founding and supplementary affidavits.

[45] The Applicant took issue with the arbitrator’s findings on procedural fairness on two main grounds. The first is that the arbitrator ignored the fact that the chairperson went out to verify evidence at the Meyerton and Germiston Mills, when the disciplinary code provides that the chairperson shall have regard to only admissible evidence in determining the guilt of an employee.

[46] The Applicant disputed that he conceded under cross-examination that the aligning of evidence by the chairperson happened in the process of the disciplinary hearing, but rather that the Respondent in closing argument “conceded that under cross-examination Tsholo acknowledged that the presiding officer was presented with evidence during the hearing and that she afterwards merely aligned that evidence with common practices elsewhere”.

[47] The second relates to the arbitrator’s findings that the chairperson was not biased.

[48] In my view, there is no merit in this ground for review for the reasons set out infra.

[49] Considering the test to be applied in an application for review, there is an obvious difficulty with the Applicant’s case in that he seeks to attack the findings of the arbitrator on very specific paragraphs in the arbitration award and selected pieces of evidence.

[50] I already alluded to the exposition of the review test in Mofokeng in relation to errors of facts or issues and the analysis of the question of whether the irregularity or error is material, which 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 inquiry, the delimitation of the issues to be determined and the ultimate outcome.

[51] The question this Court must ask on review is whether the way the arbitrator dealt with the evidence, constituted an irregularity or error which was material, whether it impacted on the determination of the question whether the Applicant’s dismissal was procedurally fair and whether it distorted the arbitrator’s ultimate decision.

[52] 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.[8]

[53] This Court has to consider the totality of the evidence placed before the arbitrator and cannot embark on a process whereby every minute detail of the arbitration award is assessed and analysed.

[54] In the Labour Relations Act[9] (LRA) the statutory requirements for a fair procedure are clearly spelt out in the Code of Good Practice: Dismissal and those were elaborated on in Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration and others[10] where it was held that:

‘To some extent, chapter VIII of the Labour Relations Act represents a codification of the jurisprudence that preceded it. The Act itself is silent on the content of any right to procedural fairness, it simply requires that an employer establish that a dismissal was effected in accordance with a fair procedure. The nature and extent of a right to fair procedure preceding a dismissal for misconduct is spelt out in specific terms in the Code of Good Practice: Dismissal in schedule 8 to the LRA.

Item 4 of the code provides:

'(1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and a language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.' (Emphasis added.)

It follows that the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged

misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer, and notice of that decision.

This approach represents a significant and fundamental departure from what might be termed the 'criminal justice' model that was developed by the Industrial Court and applied under the unfair labour practice jurisdiction that evolved under the 1956 Labour Relations Act. That model likened a workplace disciplinary enquiry to a criminal trial, and developed rules and procedures, including rules relating to bias and any apprehension of bias, that were appropriate in that context.

The rules relating to procedural fairness introduced in 1995 do not replicate the criminal justice model of procedural fairness….’

[55] The LRA did not envisage the disciplinary process adopted by many employers and abused by some employees. On the contrary, in its simplest terms, the LRA introduced a process that requires an investigation into any alleged misconduct, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer, and notice of that decision.

[56] In finding that the Applicant’s dismissal was procedurally fair, the arbitrator applied the provisions of the LRA and considered the material requirements for procedural fairness.

[57] Bias in the context of a review application is regarded as a patent gross irregularity. The principles related to the concept of bias have been set out by the Courts and a brief overview of those principles is necessary.

[58] In Turnbull-Jackson v Hibiscus Coast Municipality and others (Ethekwini Municipality as amicus curiae)[11], the Court dealt with unfounded allegations of impropriety made against public officers, and held:

‘Allegations of bias, the antithesis of fairness, are serious. If made with a sufficient degree of regularity, they have the potential to be deleterious to the confidence reposed by the public in administrators. The reactive bias claim stems from unsubstantiated

allegations of corruption and incompetence. These are serious allegations, especially the one of corruption. Yes, if public officials are corrupt, they must be exposed for what they are: an unwelcome, cancerous scourge in the public administration. But accusations of corruption against the innocent may visit them with the most debilitating public opprobrium. Gratuitous claims of bias like the present are deserving of the strongest possible censure.’

[59] In Sepheka v Du Point Pioneer (Pty) Ltd[12], the Court threw caution as follows in respect of allegations of bias:

‘Any allegation of bias, especially on the part of a Judge of this Court, must be substantiated by a proper factual basis, must not be based on mere speculation and conjecture, and must be proved by the party alleging bias.’

[60] It is a trite principle of law that in order to succeed with a claim of bias, more than mere conjecture must be shown. It happens that in the normal course of events that litigants could harbour a sense of apprehension against those administering justice. This of course does not mean that every time a litigant is not happy with the proceedings or that the judgment or outcome is not in that party’s favour, a claim of bias would suffice.

[61] The Courts have time and time again warned against litigants making unfounded allegations of bias on the part of presiding officers tasked to decide disputes, without cogent proof to substantiate the allegation.[13]

[62] It is a natural result of a disciplinary hearing that the chairperson would make a finding on the guilt of an employee and pronounce on an appropriate sanction– the mere fact that the outcome is one where the employee is found guilty of misconduct and is dismissed, does not render the presiding officer or decision maker biased. More is required.

[63] In casu, the Applicant claims that the chairperson was biased because she aligned the evidence presented during the disciplinary hearing with the common practice. To succeed with this as a ground for review, the Applicant had to prove bias and had to substantiate this claim by a proper factual basis. The Applicant dismally failed to do so, in fact, he did no more than to make vague and unsubstantiated allegations of bias.

Substantive fairness

[64] The charge the Applicant was dismissed for was:

‘Gross negligence – the failure to exercise the degree of care expected from you in relation to the following:

Failure to adhere to stock take protocols and controls which lead to discrepancies in SAP and physical stock as a result incurred R1.28 million efficiency loss for July month end and report.’

[65] The arbitrator confirmed that the Applicant was dismissed for gross negligence and he recorded the definition of gross negligence. He held that whether the Applicant was guilty of gross misconduct would depend on whether there were discrepancies which were known to him and whether he failed to rectify or clarify the numbers, whether he refused to conduct an investigation in relation to the discrepancies which led to a financial loss.

[66] The arbitrator found that the Applicant was highly educated and qualified for the position he held, that his role was critical and that in the role one ought to take reasonable care to avoid financial loss or harm to the organisation and this can be done through investigations, recounting or reconciliation of numbers.

[67] He found that the Respondent’s witnesses corroborated each other in respect of the role and responsibilities, key performance areas and standard operating procedures of the financial manager to be inter alia “to plan, organize, direct and coordinate financial procedures, interventions and programs aimed at optimising mill profitability and adherence to good corporate governance, while providing timely and relevant management reports to assess mill performance and aid in decision making”. They also corroborated that the financial manager was the overall coordinator in the counting processes and that his role interacted with other senior roles to reconcile information. The arbitrator accepted that the Applicant understood all procedures and his responsibilities.

[68] The arbitrator further accepted that the Applicant had knowledge of the discrepancies for July 2020, that the Respondent’s

witnesses established that the Applicant failed to exercise due diligence and that he had failed to rebut the employer’s

evidence that he had failed to clear the stick to balance the physical stock into the SAP. The Respondent’s witnesses testified that out of 181 tons, only 58 tons were reworked, with a difference of 123 tons which were not accounted for and upon realising this, the general manager instructed the Applicant to launch an investigation and to give feedback. The Applicant refused to conduct the investigation from the side of his own department, as instructed, and instead, he participated in the production side’s

investigation. The arbitrator accepted that this was sufficient to prove that the Applicant refused to follow a lawful instruction.

[69] The arbitrator found that the Applicant displayed a lack of care and a voluntary “disregard of a need to use reasonable care, which was likely to cause foreseeable grave injury or harm to the organisation”.

[70] In his analysis of the evidence the arbitrator recorded that the Applicant was not consistent in answering questions – he at most times denied “things but later conceded to them. He further displayed an element of dishonesty because he shifted his blame to everyone else. As compared to the Respondent’s witnesses, they corroborated their evidence, they were both consistent in answering questions and they maintained eye contact”. As a result, the arbitrator accepted the Respondent’s version as the more probable one.

[71] In conclusion, the arbitrator found that the Applicant acted grossly negligent in conducting his duties, he refused an instruction which could have saved the situation, he refused to take responsibility for his department and he was a senior manager who was expected to act responsibly. The arbitrator found that the misconduct was gross and that the Respondent discharged the onus to prove that the Applicant was dismissed for a fair reason and that dismissal was warranted. This was so because the Applicant displayed an element of dishonesty, his position was critical and the trust relationship was broken.

[72] The Applicant raised a number of grounds for review, attacking the arbitrator’s findings on substantive fairness.

[73] It is evident from the grounds for review raised that the same difficulties which I alluded to with respect to the arbitrator’s

findings on procedural fairness are present in the grounds for review relating to the findings on substantive fairness.

[74] First, the Applicant seeks to attack the findings of the arbitrator on very specific paragraphs in the arbitration award and selected pieces of evidence. The question this Court must ask on review is whether the way the arbitrator dealt with the evidence, constituted an irregularity or error which was material, whether it impacted on the determination of the question whether the Applicant’s dismissal was substantively fair and whether it distorted the arbitrator’s ultimate decision.

[75] The LAC has confirmed that to do it differently or to evaluate every factor individually and independently is to defeat the very requirement of section 138 of the LRA which requires the arbitrator to deal with the substantial merits of the case and to do so expeditiously and fairly.

[76] In Bestel v Astral Operations Ltd and others,[14] the LAC considered the limited scope possessed by this Court to review an arbitration award and accepted that an arbitrator’s

finding will be unreasonable if the finding is unsupported by any evidence, if it is based on speculation by the arbitrator, if it is disconnected from the evidence, if it is supported by evidence that is insufficiently reasonable to justify the decision or if it was made in ignorance of evidence that was not contradicted. The LAC held that:

‘…the ultimate principle upon which a review is based is justification for the decision as opposed to it being considered to be correct by the reviewing court; that is whatever this Court might consider to be a better decision is irrelevant to review proceedings as opposed to an appeal. Thus, great care must be taken to ensure that this distinction, however difficult it is to always maintain, is respected.’

[77] Let it be clear: this is an application for review and not an appeal. This is a difference which this Court must maintain. An award will only be set aside on review if both the findings and the result are unreasonable. Even where the arbitrator’s findings or reasoning may be unreasonable, the result could nevertheless be capable of justification, and therefore be reasonable and not be interfered with on review.

[78] Second, there is no merit in the Applicant’s grounds for review.

[79] I do not intend to deal with each and every averment made by the Applicant. I have perused the grounds for review and in my view, there is no merit in any of them and some are not even proper grounds for review. I will illustrate this by referring to some of the issues raised by the Applicant.

[80] The Applicant seeks for the arbitration award to be reviewed because it does not address the reasons why he was dismissed “except to make allegations of gross negligence in that I refuse (sic) to do an investigation, that I was dishonest and did not look the second respondent in the eyes. I was never charged for refusing to do an investigation and dishonesty. The second respondent cited some case laws that I believe are irrelevant and shows that he had no clue of the issue I was charged and ultimately dismissed for”.

[81] A perusal of the arbitration award shows that there is no merit in the Applicant’s averments and his averments are rather indicative of the fact that he did not understand the award properly or that he does not understand the test on review.

[82] It is evident from the award that the arbitrator in short confirmed that the Applicant was dismissed for gross negligence, he accepted that the Applicant had knowledge of the discrepancies for July 2020 and that the Applicant failed to exercise due diligence. The arbitrator found that the Applicant displayed a lack of care and a voluntary “disregard of a need to use reasonable care, which was likely to cause foreseeable grave injury or harm to the organisation”. This fell within the definition of negligence and the Applicant’s averment that the arbitrator had no clue of the issue he was dismissed for, is without merit.

[83] The Applicant took issue with the fact that the arbitrator found that he was dishonest when he was never charged for dishonesty. The Applicant misunderstood the context within which the arbitrator found him to be dishonest.

[84] The arbitrator was faced with two conflicting versions and the approach to be adopted by arbitrators when faced with two disputing versions was set out in Sasol Mining (Pty) Ltd v Ngqeleni NO and others[15] (Sasol), where it was held that the arbitrator must conduct an

‘… assessment of the credibility of the witnesses, a consideration of the inherent probability or improbability of the version that is proffered by the witnesses, and an assessment of the probabilities of the irreconcilable versions before the commissioner.’

[85] In Sasol, the Court also held that it was one of the prime functions of a commissioner to ascertain the truth as to the conflicting versions before him. The Court held that:

‘The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party’s version.’[16]

[86] The arbitrator, faced with two conflicting versions, had to follow the approach as set out by this Court and he had to assess the credibility of the factual witnesses, their reliability and their demeanour.

[87] It was within this context that the evidence presented had to be assessed and where the arbitrator found that the Respondent’s

witnesses corroborated each other’s evidence and discharged the onus to prove that the Applicant’s dismissal was fair. The Applicant on the other hand, was found to be an inconsistent witness who “displayed an element of dishonesty because he shifted his blame to everyone else”. The arbitrator assessed the evidence and the witnesses, he did not find the Applicant guilty on something he was not charged with.

[88] The Applicant made several averments to the effect that the arbitrator ignored evidence or misconstrued evidence – the gist of the complaint relates to the way in which the arbitrator dealt with the evidence and seeks to attack the findings of the arbitrator, based on his assessment of the evidence and his failure to consider relevant evidence. There is no merit in those complaints either.

[89] I already alluded to the exposition of the review test in Mofokeng in relation to errors of facts or issues and the analysis of the question of whether the irregularity or error is material, which 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 inquiry, the delimitation of the issues to be determined and the ultimate outcome.

[90] The question this Court must ask on review is whether the way the arbitrator dealt with the evidence, constituted an irregularity or error which was material, whether it impacted on the determination of the question whether the Applicant was guilty of the misconduct he was charged with and whether it distorted the arbitrator’s ultimate decision.

[91] 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.[17]

[92] The Applicant must show that the arbitrator arrived at an unreasonable result. In fact, the Applicant must show that the decision is one that a reasonable decision maker could not make, based on the evidence presented. The test is not whether the arbitrator came to the best decision or a decision acceptable to the Applicant. A review is not an appeal.

[93] I have to consider the grounds for review within the context of the test this Court must apply in deciding whether the arbitrator's decision is reviewable. The ultimate question is whether, holistically viewed, the decision taken by the arbitrator was reasonable based on the evidence placed before her. To consider each piece of evidence separately, will constitute a piecemeal approach which is an approach this Court has to avoid.

[94] This Court has to consider the totality of the evidence placed before the arbitrator and cannot embark on a process whereby every minute detail of the arbitration award is assessed and analysed.

[95] I have considered the question whether, holistically viewed, the decision taken by the arbitrator was reasonable based on the evidence placed before him, after perusal of the transcribed record, the arbitration award and the purported grounds for review raised by the Applicant.

[96] Considering the evidence before the arbitrator, it is my view the arbitrator’s findings are not disconnected from the evidence, but in fact, they are based on the evidence presented. The arbitrator did not misconceive the enquiry but indeed determined the principal issues he was required to determine.

[97] The Applicant could not make out a case to show that the way the arbitrator dealt with the evidence, constituted an irregularity or error which was material and that it impacted on the determination of the question of whether he was guilty of the misconduct he was dismissed for and ultimately distorted the arbitrator’s decision and led to an unreasonable result.

[98] In my view, the arbitrator’s findings fall within a band of reasonableness based on the evidence that was placed before him and there is no basis for this Court to interfere with it on review. In casu, the Applicant was unable to make out a case for review, applying the strict test of reasonableness.

Costs

[99] This Court has a wide discretion in respect of costs, considering the requirements of law and fairness.

[100] In my view, this is a case where the interests of justice will be best served by making no order as to costs.

[101] In the premises, I make the following order:

Order

1. The application for review is dismissed;

2. There is no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

Applicant:

Mr Tsholo in person

Third Respondent: Mr Dube from ENS Inc Attorneys

[1] [2009] ZALC 53; (2010) 31 ILJ 97 (LC).

[2] [2007] ZACC 22; 2007 28 ILJ 2405 (CC) at para 110.

[3] [2013] ZALAC 28; (2014) 35 ILJ 943 (LAC) (Gold Fields) at para 16.

[4] [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC) at para 33.

[5] Gold Fields supra at paras 18 and 19.

[6] [2014] ZALAC 136; (2015) 36 ILJ 968 (LAC) at para 12 and 13.

[7] Schedule 8 of the Labour Relations Act 66 of 1995, as amended.

[8] Gold Fields supra at paras 18 and 19.

[9] Act 66 of 1995, as amended.

[10] [2006] ZALC 44; (2006) 27 ILJ 1644 (LC) at 1651C – I.

[11] [2014] ZACC 24 (CC); 2014 (11) BCLR 1310 (CC) at para 35.

[12] [2018] ZALCJHB 336; (2019) 40 ILJ 613 (LC) at para 16.

[13] See for example Sappi Kraft (Pty) Ltd t/a Tugela Mill v Majake NO and Others (1998) 19 ILJ 1240 (LC) at para 48; SMCWU v Party Design CC [2001] 6 BLLR 667 (LC) at para 12.

[14] [2010] ZALAC 19; [2011] 2 BLLR 129 (LAC) at para 18.

[15] [2010] ZALC 141; (2011) 32 ILJ 723 (LC) at para 7.

[16] Ibid at para 9.

[17] Gold Fields supra at paras 18 and 19.