WBHO Construction (Pty) Ltd v Cormack NO and Others (JR2405/21) [2024] ZALCJHB 544 (13 December 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR2405/21

In the matter between:

WBHO CONSTRUCTION (PTY) LTD

Applicant

and

GLEN ALLEN CORMACK N.O

First Respondent

BARGAINING COUNCIL FOR

THE CIVIL

ENGINEERING

INDUSTRY

Second Respondent

ISAAC MHAWU

MAPHANGA

Third Respondent

Heard: 3 July 2024

Delivered: 13 December 2024 (This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses. The date for the hand-down is deemed to be 13 December 2024.)

JUDGMENT

MOKWENA, AJ

Introduction

[1] In this matter the Applicant brought a review application and subsequently, requested this Court to grant an Order in the following terms:

‘Reviewing and setting aside the Arbitration Award delivered by the first Respondent under the auspices of the second Respondent under case number CCE165-21 on 10 October 2021 (“the Arbitration Award”);

SUBSTITUTING the Arbitration Award with an order that the dismissal of the Respondent was substantially and procedurally fair;

ALTERNATIVELY TO PRAYER 2, REMITTING the matter to the second Respondent for an arbitration hearing de novo before an arbitrator other than the first Respondent;

STAYING the enforcement of the Arbitration Award pending the finalization of the review application;

ORDERING such Respondents who oppose this application to pay the costs of this application, jointly and severally, the one paying the others to be absolved;

GRANTING the Applicant further and/or alternative relief.’

[2] Only the third Respondent has opposed the application and the first Respondent filed a notice to abide and some explanatory affidavit as far as corrections in the award are concerned. Nothing turns on this explanatory affidavit.

[3] It is worth to highlight that, both parties never and/or attempted to address the Court in respect prayer four (4) of the amended Notice of Motion during oral submission or even in their Heads of Argument. This Court will assume in their favour that, such a prayer was never an issue before this Court.

[4] The issue is whether the first Respondent’s award was unreasonable to warrant a granting of a review.

[5] The application was heard on the 3rd of July 2024, it must be said, that it took half a day for the issues herein to be ventilated by all the parties. At the end of it all, judgment was reserved.

Background

[6] Some scenarios and background are necessary in order to asses or evaluate the totality of the issues raised by the parties as far as the review is concerned.

[7] It is common cause that the third Respondent was employed by the Applicant as an excavator operator for eleven (11) years at a salary of R16 604,00 per month. It is common cause further that the Applicant’s operators often are moved from one site to another depending on the Applicant’s operational requirements at any given time. It is accepted that the third Respondent had been transferred across a number of sites during his tenure with the Applicant as is the norm and practice.

[8] When the dispute between the parties was triggered, the third Respondent was based at the Applicant’s site in Machadodorp in the Mpumalanga Province. The issues started in January of 2021 and Covid-19 being at the epicentre of the dispute between the parties.

[9] The third Respondent was instructed to report to Willowvale in the Eastern Cape Province, however refused to do so simply because the third Respondent had previously suffered from tuberculosis and that the Eastern Cape was a Covid-19 hotspot. The Applicant proceeded to relocate the third Respondent’s excavator from Machadodorp to the Eastern Cape on 9 January 2021. The third Respondent was disciplined pursuant to his refusal and on 10 January 2021, a final written warning was issued to the third

Respondent.

[10] The third Respondent was subjected to a medical examination on 13 January 2021 and this Respondent was declared fit to work. The third Respondent went on to obtain medical examination, which stated that “features are suggestive of current lower respiratory tract infective changes, PTB cannot be entirely excluded. Further biochemical, sputum evaluation is recommended”.

[11] The third Respondent after attending a medical examination in Johannesburg, reported back to work at Machadodorp site and found that his excavator machine had been moved to Willovale in the Eastern Cape. It is undisputed that, the third Respondent approached the employer upon his return from a medical examination, however the evidence proves that the employer never made any provision for work for the third Respondent. What is in dispute is whether the third Respondent was told to go home as he was not required on site or not.

[12] The third Respondent contends that he was told to go home, to the accommodation where he stayed in Machadodorp as he was not required on site. The words were uttered by Mr Kulenga, according to the third Respondent’s evidence. The third Respondent proceeded to his accommodation at Machadodorp. According to the third Respondent, he was not informed as to when he should return to work.

[13] The Applicant contended that the third Respondent deliberately did not report to work and further contended that the third Respondent could not be contacted on the phone. Subsequently, the Applicant sent a registered letter dated 27 January 2021 to the third Respondent’s home address, notifying the third Respondent of termination of employment, if the third Respondent did not return to site in Machadodorp within seven days. The third Respondent did not report on site, the Applicant dismissed him summarily in terms of the Company’s

absenteeism policy as he had been absent for more than three days.

[14] The third Respondent was dismissed on the 10 February 2024 for absconding, without any disciplinary hearing being conducted. The third Respondent challenged his dismissal and referred the matter to the second Respondent for adjudication. The dispute was referred to the arbitration.

[15] The arbitration took place over a period of two days, to wit; on 1 September 2021 and 30 September 2021. There were two questions before the first Respondent to decide, whether the third Respondent absconded from work and if the Applicant has complied with the provisions of Labour Relations Act[1] (LRA)with regard to affording the third Respondent a hearing before condemning him.

[16] The arbitration tendered the following proven facts. That the third Respondent was employed by the Applicant for eleven (11) years at a salary of R16 604,00 per month. The third Respondent was employed as an excavator operator. Operators are moved from one site to another depending on the Applicant’s operational requirements at any given time. That the third Respondent was instructed to report to Willowvale in the Eastern Cape Province but the third Respondent refused to move due to the fact that he previously suffered from tuberculosis and the Eastern Cape being a Covid-19 hotspot. The refusal came with a punishment in the form of a final written warning.

[17] It is proven as a fact that; the third Respondent was subjected to medical examination on 13 January 2021 in Johannesburg. The third Respondent was declared fit to work. Pursuant to this medical examination, the third Respondent went for X- ray examination which suggest lower respiratory tract. The X-ray examination was disclosed to the employer through an email to Kalegane (agent of the Applicant). During the month of January 2021, the third Respondent suffered or tested positive for Covid-19. The Applicant was informed accordingly, through a WhatsApp message text. It is further a proven fact that, the Applicant issued a letter dated 27 January 2021 to the third Respondent requesting that he return to work or face termination of his employment contract. The said letter never came to the attention of the third Respondent, simply because the letter was posted to the third Respondent’s address that is reflected in his contract of employment and not his current residential address in Machadodorp.

[18] The third Respondent did not report on site as per the demand dated 27 January 2021, the Applicant summarily dismissed the third Respondent in terms of the company’s absenteeism policy as the third Respondent had been absent for more than three days. On the 1st of February 2021, the Applicant received an email which recorded that, the third Respondent had been instructed not to come back to work after he had requested not to be sent to the Eastern Cape and the third Respondent was willing to report to work and resume his duties.

[19] It is further proven fact that the Applicant never afforded the third Respondent a disciplinary hearing, simply because the Applicant’s policy did not require a disciplinary hearing to be held if an employee deserted. The notice of the disciplinary hearing was never sent to the third Respondent. The third Respondent never lied about his whereabouts.

Review

[20] The background facts and the nature of the application triggers section 145 (1) of the LRA. The critical point is for this Court to analyse and determine whether the Applicant considering the totality of the proven facts, has established the jurisdictional factors of a review in terms of section 145 (1).

[21] Section 145 (2) provides that, “a defect referred to in subsection (1), means-(a) that the commissioner- (i) committed misconduct in relation to the duties of the commissioner as an arbitrator; (ii) committed a gross irregularity in the conduct of the arbitration proceedings; or (iii) exceeded the commissioner’s powers”.

[22] The Arbitration Award sought to be reviewed in casu was issued by the first Respondent while under the auspices of the second Respondent and the award may only be reviewed in terms of the provisions of section 145 (1) of the LRA. The test is whether the Commissioner’s outcome is one that may be arrived at by a reasonable Commissioner, based on the evidence that was presented by the parties at the arbitration hearing. If no reasonable decision-maker would reach the Commissioner’s outcome, then that outcome must be reviewed and set- aside as unreasonable[2].

[23] A review criterion is whether the decision is rationally connected with the information before the Commissioner and the reasons for it. In South African - Breweries (Pty) Ltd v Hansen and Others[3], the criteria was couched as follows:

‘[10] The test that the Labour Court is required to apply in a review of an arbitrator’s award was settled by the Constitutional Court in Sidumo and Another v Rustenburg Platinum Mines and Others (Sidumo). It is that an arbitration award is reviewable if the decision reached by the arbitrator was one that a reasonable decision-maker could not reach. Essentially, this test requires the Labour Court, sitting as a court of review, to enquire whether the decision under review is one that a reasonable decision-maker could not reach on the evidential material available. On this test, an arbitration award based on defective reasoning by an arbitrator may still pass the muster required in reviews, provided that the result is one that a reasonable- decision-maker could have reached. This was clarified by the Supreme Court of Appeal in Herholdt v Nedbank Limited (Congress of South African Trade Unions as amicus curiae) as follows:

“For a defect in the conduct of the proceedings to amount to gross irregularity as contemplated by s 145 (2)(a)(ii)… the Arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. 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. Material errors of fact, are not in and of themselves sufficient for an award to be set aside, but are only of any consequences if their effect is to render the outcome unreasonable”.’

[24] These authorities show that the Courts have made it clear that the norms that apply in reviews of are those found in section 145 of the LRA and it is within this context that the Applicant’s ground for review must be assessed.

[25] Also, it is trite that a party who seeks to review an arbitration award is bound by the ground for review contained in the review application, subject to one qualification namely, that the Court is obliged to deal with a point of law apparent from the papers (see Commercial Workers Union of SA v Tao Ying Metal Industries and others (2008) 29 ILJ 2461 (CC) at para 67).

Discussion and analysis

[26] The first point of departure on this segment is to canvass the grounds of review as they appear in the Applicant’s founding papers. According to the Applicant, the grounds of review are premised on the following:

‘that the learned first Respondent failed to take into account that in terms of the contract of employment of the third Respondent and indeed the practice followed by the Applicant, an employee who is absent without leave for 3 consecutive working days or more without contacting the Company or providing a reason acceptable to the Company, the employee shall be in breach and liable for summary dismissal.’

[27] There was a long debate between the first Respondent and Mr Molawa (the Applicant’s representative during arbitration) regarding the absenteeism procedure and Mr Molawa dismally failed to explain this procedure, which left the first Respondent in the dark. The first Respondent said the following during the arbitration hearing: “I am saying that the law says you must follow a fair procedure. I am trying to establish what procedure was followed. I hear you saying that you told him that if he does not report he will face disciplinary action”. This view culminated into paragraph 34 of the award. The first Respondent did consider the terms of the contract of employment but however upheld what the law of the Republic says. This position is strengthened by Code of Good Practice[4]: Dismissal. In terms of item 4 (1) of the Code of Good Practice, an employer should normally conduct investigation to determine whether grounds for the dismissal exist. The code recognises that it need not be a formal enquiry but the employee needs to be notified and should be permitted to state their case in response to the allegation. The code stipulates that the employee must be given a reasonable time to prepare his or her response and must be allowed the assistance of a trade union representative or fellow employee.

[28] In casu, it is proven fact that the Applicant received an email from the third Respondent’s erstwhile attorneys to the effect that, the third Respondent had been instructed not to come back to work after he had requested not to be sent to the Eastern Cape and the third Respondent was willing to report to work and resume his duties. The allegations were not investigated by the Applicant, breaching the Code of Good Practice. Mr Gray (testified on behalf of the Applicant during the arbitration) conceded that the third Respondent never lied about his whereabouts, but he dismally failed to notify the third Respondent about the disciplinary action. Again, the Applicant breached the Code of Good Practice, in that the third Respondent was dismissed without being afforded an opportunity to be heard. The first ground for review is unmeritorious and falls to be dismissed. The first Respondent’s award and sentiments were reasonable.

[29] The second ground for review, is that the conspectus of evidence was not fully appreciated nor taken into account in considering the factual matrix of the matter and when determining the merits of the dispute. The Applicant will argue that the third Respondent did in fact abscond from his duties and that the conduct of the Applicant was fair in all respects.

[30] This ground for review also stands to fail. The totality of the evidence proves that the employer was economical with the truth and disingenuous. It was not placed in dispute that the third Respondent contracted Covid-19 and this happened during the 31st of January 2021. The reason why the Applicant could not seriously challenge this evidence, it is because Mr Mthembu (the Applicant’s employee and also a witness during arbitration) after coming into contact with the third Respondent contracted Covid-19 again, Mr Malan (Site Manager and also a witness during arbitration) also contracted Covid-19 and went into isolation.

[31] The evidence further proves that the third Respondent did report his Covid-19 status, however, it appears that the Applicant did not adjust their policies to accommodate the regulations and the Applicant did not have a policy on reporting Covid-19 cases. I commend the third Respondent for isolating and saving lives. Resultantly, the Respondent did not commit an offence of abscondment, at the time he was expected to report he was sick. These issues could have been clarified, in the event the third Respondent was invited to a disciplinary hearing. The first Respondent’s finding remains reasonable in this instance.

[32] The third ground for review is that the learned first Respondent misdirected himself by coming to the conclusion in his findings that the Applicant had sent the registered letter calling upon the third Respondent to resume duties to an address that the Applicant knew the third Respondent was not residing at. This is an incorrect assessment of the facts as the Applicant sent the registered letter to the last known address of the third Respondent.

[33] This ground is liable to be dismissed precisely because, the Applicant brought a review not an appeal. This ground of review has nothing to do with the jurisdictional factors of section 145 (2) of the LRA and even if I am wrong on this finding, this ground still has some serious shortcomings considering the evidence tendered. Mr Gray testified that the third Respondent never lied about his whereabouts. It defies logic and sense that the Applicant would send a letter via registered post to the third Respondent’s address that is reflected in his employment contract when the Applicant is well aware that the third Respondent was at that moment based at Machadodorp.

[34] The fourth ground for review is that, the learned first Respondent did not take into account the correspondence received from the third Respondent’s legal representatives to the extent that the third Respondent would report for duty.

[35] This ground for review also stands to fail. Paragraph 31 of the award clearly demonstrates that, the third Respondent considered the correspondence received from the third Respondent’s erstwhile attorneys. The Applicant did not take trouble of investigating the allegations contained in the correspondence, leading to a serious misunderstanding between the parties. Again nothing turns on this correspondence if the Applicant was not prepared to investigate and make a follow-up on the allegations contained in the correspondence.

[36] The fifth ground for review is that the learned first Respondent did not appreciate the overall facts of the matter to the extent that the third Respondent had not made himself available for work, indicated his intention to resume work and did not follow through with the undertakings made by his legal representatives in writing.

[37] As far as this ground is concerned, I repeat my reasons as stated in paragraph 30 of this Judgment. This ground for review is unmeritorious and falls to be dismissed. The first Respondent’s findings cannot be faulted in this regard.

[38] The sixth ground for review is that, the first Respondent therefore a gross irregularity in the conduct of the arbitration proceedings by finding that Mthembu had instructed the third Respondent to go home. The first Respondent should instead have disregarded the third Respondent’s version and accepted Mthembu’s version.

[39] There is absolutely no merit in this ground for review. The first Respondent did not find that Mthembu had instructed the third

Respondent to go home. Instead the first Respondent found that, the third Respondent contracted Covid-19 and had emailed the results to Kulenga. This remains a proven fact because the Applicant failed to rebut the evidence and Kulenga was never called to testify during the arbitration proceedings. The first Respondent accepted this evidence on its unopposed basis. “If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged

witness’s testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn and has been

adopted and consistently followed by our court[5]’.

[40] The first Respondent applied his mind to Mthembu’s evidence, the facts and evidence placed before him and came to a decision that any reasonable decision maker would have made. The first Respondent cannot be faulted in this regard.

[41] The seventh ground for review is that the first Respondent should have concluded that the third Respondent was not prepared to accept a reasonable instruction (i.e. to travel to Willowvale after he had been medically tested and received a clean bill of health).

[42] The issue of the third Respondent not being prepared to accept reasonable instruction was never an issue before the first Respondent. The Applicant is attempting to introduce a new matter which was never an issue before the first Respondent. Even if I am wrong, the Applicant did conduct a disciplinary action against the third Respondent for refusing to travel to Willowvale and the third Respondent was punished with a written warning. This matter remains finalised between the parties and as to why it now serves as a ground for review it remains questionable with no answers.

[43] The eighth ground for review is that the first Respondent should have concluded that the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable.

[44] This ground is liable to be dismissed as well. The Applicant’s witnesses in particular Mr Gray never testified that a continued employment relationship would be intolerable, despite the question being put to him. The first Respondent’s finding remain reasonable.

[45] What the Applicant actually wants is for the first Respondent to have ruled in its favour. And this is wrong because a decision against the Applicant does not mean the evidence was ignored. The decision actually remains true to the facts and the evidence tendered. None of the purported grounds argued by the Applicants falls within section 145 of the LRA. And as stated above the Award may only be reviewed in terms of the provisions of section 145 of the LRA.

[46] The Applicant’s ground for review cannot, therefore hold and this application falls to be dismissed.

[47] The Applicant’s grounds for review as they appear in the founding papers, do not seek to review the compensation granted to the third Respondent. This means this Court cannot interfere with the quantum of compensation. It follows that the first Respondent’s finding in this regard was indeed reasonable and fair.

Costs

[48] It appears to me that, the first Applicant omitted to endorse in the award the issue of costs which were tendered by the third Respondent on 18 May 2021. The third Respondent tendered costs occasioned by a postponement postponement and I am of the view that it is only fair that the Applicant be awarded those costs.

[49] On the other hand, the third Respondent opposed this application, and incurred legal costs unnecessarily. The third Respondent asked for a costs order against the Applicant in this application. Considering that this is a Court of equity, which does not call for a costs order on the basis that a party has lost a matter, instead, this Court must give reasons if it orders costs in line with the provisions of section 162 of the LRA. In casu, I am of the view that a cost order is warranted against the Applicant, this is motivated by the fact that the review proceedings were unnecessary and plainly a waste of time and resources. Again, the third Respondent was awarded compensation, however, he had to incur legal costs to obtain same and if a costs order is not granted in his favour, such compensation might be fruitless.

[50] In the results, I make the following order:

Order

1. The review application is hereby dismissed.

2. The Applicant is hereby Ordered to pay the third Respondent’s costs.

3. The third Respondent is hereby directed to pay the Applicant’s costs which were tendered by the third Respondent on the 18 May 2021 as a result of a postponement.

K Mokwena

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant:

Adv M J Van As

Instructed:

Fluxmans Inc Attorneys

For the 1st & 2nd Respondents: No appearance

For the 3rd Respondent: Mr Gontse Leshaba

Instructed:

Mitti Attorneys Inc

[1] Act 66 of 1995

[2] Sidumo and another v Rustenburg Platinum Mines Ltd and others (2007) 28 ILJ 2405 (CC) [2007] 12 BLLR 1097 (CC)

[3] [2017] ZALAC38 ILJ 176 29 ; (2017) 6 (LAC)

[4] See Schedule 8 of the LRA.

[5] See President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1999]

ZACC 11, 2000 (1) SA 1;at para 61.