SUMMARY
The factual matrix from which this judgment transpires concerns an Arbitrator’s award. Securitas Specialised Services (Pty) Ltd (“the Employer”) dismissed Edward Pheme (“the Employee”) following an internal disciplinary enquiry into the Employee’s misconduct (failure to visit clients for 7 months). The chairperson found the Employee guilty of the misconduct and recommended a sanction of dismissal.
The employee, being dissatisfied with his ensuing dismissal, approached the Commission for Conciliation, Mediation and Arbitration (“CCMA”). The duly appointed arbitrator found the dismissal of the Employee to be substantively and procedurally unfair and ordered reinstatement.
In light of the above, the Employer approached the Honourable Court requesting the arbitration award be substituted with a finding that the dismissal of the employee was substantively and procedurally fair. Alternatively, that the arbitration be referred back to the CCMA for a de novo arbitration before a different commissioner.
In terms of Section 145 (1) of the LRA:
“A party may apply to the Labour Court on the basis of an alleged defect with a commissioner’s rulings or awards.”
The test for review which has been authoritatively stated by the Constitutional Court in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007 (28) ILJ 2405 (CC) at para 25 was reiterated in Herholdt v Nedbank Ltd and Congress of South African Trade Unions 2013 (6) SA 224 (SCA) as follows:
“…the arbitrator must have misconceived the nature of the enquiry 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.”
HELD
In light of the content of Section 145(1) of the LRA and the prevailing precedent, the Court found that the arbitrator had not committed misconduct, a gross irregularity or that he had exceeded his powers.
In coming to its conclusion the Honourable Court recognised that the arbitrator dealt and engaged exhaustively with the evidence before him and considered all the issues before arriving at his conclusion.
The decision arrived at by the arbitrator is one a reasonable decision-maker could reach. Being a decision that is justified by the evidence that was placed before him. Thus, the Court found no reason to interfere with the arbitration award.
VALUE
This judgement highlights the protections afforded to employees, The process mandated by the LRA provides considerable control measures and seeks to ease the harmful effect dismissals have on the South African Labour force. The judgment further demonstrates the courts willingness to engage with the factual matrix presented.
Written by John Mackechnie and supervised by Omphile Boikanyo, 13 February 2019
