Employment law update – The court’s inquiry on review

February 1st, 2014

Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others (LAC) (unreported case no JA 2/2012, 4-11-2013) (Waglay JP)

By Moksha Naidoo

The employee, Moreki, was employed by the appellant as a senior sampler whose duties included locating the exact position of a stope face from which samples would be extracted and tested to determine the suitability of mining at that specific location.

It was found that the location of a certain stope face, as provided by Moreki, was 11 metres off its actual position, which potentially could have cost the appellant R 1,2 million had it relied on the data Moreki provided.

He was charged and dismissed for ‘serious neglect of duty’ and failure to work according to an acceptable standard. Aggrieved by his dismissal, Moreki referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

At arbitration before the second respondent, Moreki was found guilty of poor work performance, but on the basis that his conduct could be corrected and improved, he was reinstated without back-pay.

On review the Labour Court, per Fourie AJ, dismissed an application to set aside the award for the following reasons –

  • the fact that the arbitrator miscategorised the reason for dismissal as poor performance instead of misconduct was immaterial to the overall findings and not unreasonable;
  • the finding that the dismissal was substantively unfair passed the test of reasonableness; and
  • the grounds of review attacked the result of the arbitrator’s findings.

With leave to appeal the appellant approached the LAC.

The appellant began by arguing that the court a quo’s third reason for dismissing its application was incorrect. On review, according to the appellant, it sought to challenge the process of how the commissioner arrived at his decision rather than the result of the commissioner’s findings, which was what the Labour Court found. Following this point and in continuing its attack on the process of how the commissioner arrived at his findings, the appellant further argued that the Labour Court erred in that the correct categorisation of Moreki’s dismissal was key when determining whether dismissal, as a sanction, was fair taking into account the totality of the circumstances.

In light of the recent developments concerning process-related grounds of review, the LAC began by examining the test the Labour Court adopts when reviewing statutory awards.

To start with, the LAC stated that the Sidumo test (Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC)) does not postulate a simple evaluation of whether the arbitrator’s findings were reasonable given the evidence that was presented at arbitration. The Constitutional Court in the Sidumo case held that the Labour Court must continue to hear review applications on the grounds listed in s 145 of the Labour Relations Act 66 of 1995, but, in doing so, the court must be alive to the fact that the constitutional standard of reasonableness is suffused in the application of s 145. This means that, on review, the court’s inquiry does not end once it establishes the arbitrator committed a gross irregularity or misconceived the nature of the inquiry, but further inquires as to whether or not the arbitrator’s findings nevertheless falls within the band of decisions a reasonable decision-maker could arrive at. Put differently, the court must also inquire whether or not the arbitrator’s misconduct renders the award unreasonable, taking into account the totality of the evidence that was before the arbitrator.

On this basis the LAC set out the following questions a reviewing court should determine when dealing with an argument that the arbitrator committed a gross irregularity:

  • In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process employed by the arbitrator give the parties a full opportunity to have their say in respect of the dispute?
  • Did the arbitrator identify the dispute he or she was required to arbitrate?
  • Did the arbitrator understand the nature of the dispute he or she was required to arbitrate?
  • Did he or she deal with the substantial merits of the dispute?
  • Is the arbitrator’s decision one that another decision-maker could reasonably have arrived at based on the evidence?

While the LAC acknowledged that an arbitrator’s failure to take into account material facts or to follow proper process could render an unreasonable outcome, these issues should not be examined in isolation and should be considered against a broad-based evaluation of the totality of evidence presented.

In applying this test to the facts before it, the LAC found that the arbitrator misconceived the nature of the inquiry – that being to ascertain the fairness of a dismissal for misconduct and not, as the arbitrator found, the fairness of a dismissal relating to poor work performance.

In highlighting the distinction between misconduct and poor work performance, Waglay JP held that the requirements for proving the fairness of a dismissal relating to misconduct and poor performance differ. In dismissals relating to misconduct the employer must establish that the employee, without proper justification, breached a workplace rule that he or she was, or reasonably should have been aware of. In dismissals relating to poor performance, the employer must generally establish a certain standard that, objectively speaking, is considered reasonable and which standard the employee did not meet despite the employer’s efforts to assist the employee.

Returning to the merits of the case, the LAC noted that the evidence presented at arbitration centred around Moreki’s failure to perform duties that he had correctly performed in the past, rather than him being unable to meet a standard that was required of him. The evidence led therefore related to Moreki’s negligence, as opposed to his poor work performance.

Having arrived at this conclusion, the LAC, in line with the aforementioned inquiry, further considered the reasonableness of the decision by asking whether or not the decision was reasonable had the arbitrator correctly categorised the nature of the dispute. Taking into account the fact that Moreki committed an act of serious misconduct whereby his years of service and seniority served as aggravating factors, together with the potential financial impact his conduct had on the appellant, the LAC found the decision reached by the arbitrator was not one that a reasonable decision-maker could have arrive at.

The appeal was upheld and the court a quo’s order replaced with a finding that the dismissal was substantively fair. No order as to costs was made.

Note: Unreported cases at date of publication may have subsequently been reported.

Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

This article was first published in De Rebus in 2014 (Jan/Feb) DR 54.