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             THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR 1386/2018

In the matter between:

BABATUNDE ADEYEMI                                                       Applicant                 

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION                                          First Respondent

B J WAUCHOPE N.O                                                             Second Respondent

NALEDI FOUNDRY OPERATIONS (PTY) LTD                      Third Respondent

Enrolled:       23 April and 1July 2020

Delivered:      14 July 2020

In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 14 July 2020.

JUDGMENT

PRINSLOO, J

Introduction

[1]           The Applicant seeks to review and set aside an arbitration award dated 2 July 2018 and issued under case number GAJB2871-18 wherein the Second Respondent (the arbitrator) found that the Applicant’s dismissal was substantively unfair and his case was dismissed The Third Respondent (Respondent) opposed the application for review.

[2]           This matter was initially enrolled for hearing on 23 April 2020 but due to the level 5 lockdown measures that were in place during April 2020, the matter was removed from the roll. The matter was re-enrolled on 1 July 2020. In accordance with the provisions of the ‘Urgent directive in respect of access to the Labour Court’ dated 28 April 2020, which is applicable with effect from 4 May 2020 until the end of the July 2020 recess, the parties agreed that this matter be disposed of without oral argument. I have considered the papers filed as well as the written heads of argument submitted by the parties.

The evidence adduced:

[3]           The Respondent employed the Applicant since March 2016 as finance manager and at the time of his dismissal in February 2018, he held the position of purchase manager. The Applicant was dismissed after he was found guilty of misconduct. The charge of misconduct levelled against him and for which he was dismissed, is gross dereliction of duty in that he had failed to make the Pay As You Earn (PAYE) payment to SARS on time and that resulted in penalties for the Respondent.

[4]           The issue to be decided by the arbitrator was whether the Applicant’s dismissal was substantively fair and if so, what the appropriate relief should be. Procedural fairness was not in dispute.

[5]           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 faced and was dismissed for.

The Respondent’s case

[6]           It is evident from the transcribed record that the arbitrator made an attempt to narrow the issues at the onset of the arbitration proceedings. The Applicant conceded that he was given an instruction to pay the PAYE to SARS and that he had failed to do so. The Applicant’s dismissal resulted from his failure to pay the PAYE for the December 2017 salaries on time. The contentious issue was that he submitted that it was not part of his duties, and that no such an instruction was given to him in respect of the January 2018 payment to SARS and further that at the time the payment was due, he was on leave that was authorised by the Respondent. Furthermore, the employee who was responsible to submit the schedule for the payment to SARS to be made, submitted it late, which caused him to make the payment late.

[7]           The Respondent’s case on the other hand was that it was indeed part of the Applicant’s duties, for which he was remunerated and that he was given an instruction to pay SARS.

[8]           It is evident from the process of narrowing the issues in dispute, that the arbitrator picked up the discrepancy in the Applicant’s case namely; that on the one hand he said that he was not responsible or instructed to make the PAYE payment to SARS, yet on the other hand, he is seeking to justify why it was not done on time by submitting that he was on leave and that the employee who had to submit the schedule to the Applicant for payment to be made, did so late and that caused him to make the payment late.

[9]           It was common cause that the Applicant did not make the PAYE payment to SARS on time and the questions identified by the arbitrator were whether it was part of the Applicant’s duties to make the aforesaid payment and whether he was instructed to do so.

[10]        The Respondent’s first witness, Ms Nkosi, testified that she is the human resources officer and her role includes the preparation of the PAYE schedule at the end of the month and to file it with SARS through e-filing. Once she filed it with SARS, it is scanned and sent to the head of finance and the responsible employees in the finance department to show that it was indeed filed. Ms Nkosi testified that the Applicant’s responsibility was to ensure that the payment is made to SARS.

[11]        In cross-examination, Ms Nkosi conceded that in December 2017, no projection was provided to the Applicant regarding the amount of PAYE that was payable to SARS in January, but she insisted that it was part of the functions of the finance department to do the projections. This was disputed by the Applicant, who insisted that it was to be done by the human resources department as it was based on the payroll. The calculation of the PAYE amount to be paid to SARS was to be made by the human resources department and the actual payment of the amount was to be done by the finance department.

[12]        Ms Nkosi testified that from September 2017 to January 2018, the Applicant was responsible for the PAYE payments to SARS. She had copied him in on the emails sent to the financial manager as the Applicant was responsible for payments, which included payments to SARS, the Respondent’s employees and third parties.

[13]        In November 2017, the PAYE payment to SARS was also made late and the CEO sent an email to the relevant employees of the Respondent stating that it should not happen again as the late payment has financial consequences for the Respondent.   

[14]        Ms Nkosi explained that the PAYE schedule should be submitted before the 7^th day of the next month, otherwise it will be late and the Respondent will be liable to pay penalties. She explained that the PAYE schedule was submitted late for December because as the Respondent was about to close in December, the payroll could not be prepared as the was confusion in the human resources office regarding the employees’ leave pay and leave allocations that were not done correctly and she had to sort out the leave issues of 183 employees. She explained that the payroll however closed on 15 December 2017 and that by then, the Respondent would have known the PAYE amount to project for payment in January 2018. The PAYE schedule for December 2017 was only submitted on 8 January 2018. She was issued with a final written warning for failing to submit the PAYE schedule on time.

[15]        The Applicant’s case was that his  contract of employment stipulated that he was not supposed to be doing any SARS work and for that reason Ms Nkosi should not have sent him the PAYE report to process the payment to SARS as he was not supposed to do SARS work. Ms Nkosi responded to this proposition to the effect that the Applicant was responsible for payments, which included payments to SARS. The Applicant conceded that as from September 2017, he started to make payments to SARS and he did so in September, November, December 2017 and January 2018. 

[16]        The Respondent’s second witness was Ms Chifora, the head of finances. She explained that the Respondent had embarked on a section 189 of the LRA retrenchment process, of which the outcome was that the Applicant had applied for and was appointed in the position of purchasing manager. Ms Chifora testified that the Applicant’s position was a senior position and that his duties included banking. She explained that the Applicant was required to do the SARS PAYE payments because he had to do everything that involved payments. He was not expected to compile the monthly management account or to do auditing. The Respondent excluded SARS duties from the scope of the Applicant’s work with specific reference to tax and VAT returns.

[17]        Ms Chifora testified that the Applicant was well aware that payments to SARS were part of his duties and that he had made those payments since September 2017.

[18]        She explained that payments to SARS have to be done by the 7^th day of each month and if it is done late, there is a 10% penalty that the Respondent has to pay to SARS. The Respondent’s CEO sent an email on 30 November to inter alia, Ms Chifora and the Applicant to confirm that they should not miss the payment deadline of the 7^th day of the month.

[19]        In respect of the January 2018 payment to SARS, Ms Chifora explained that the PAYE schedule was only prepared and provided on 8 January 2018, which was late. She explained that before the Applicant went on leave in December, he did an estimation of how much the Respondent could pay in respect of PAYE during the relevant period and he should have asked the human resources department to prepare a declaration, but instead he went on leave and made no arrangement for the payment to be done. Nobody knew that the payment was not made. If the payment was done on the Applicant’s estimation, the Respondent would have avoided paying late and would not have paid penalties of R 113 000 to SARS. Ms Chifora testified that there was no bar from paying the projected PAYE amount to SARS either before the due date or before he went on leave. He could have done the payment upfront and requested someone else to release it on the due date. If the Applicant was not available to do the payment, he should have asked someone else to do it whilst he was on leave.

[20]        Ms Chifora explained that the Respondent experienced financial difficulties to the extent that it was unable to pay creditors and buy raw material and payment of penalties to SARS worsened the Respondent’s position and impacted on its employees as they were placed on short time.

[21]        In cross-examination it was put to Ms Chifora that the Applicant’s duties did not include any functions in respect of SARS. She responded that his duties included all payments and the duty to make payments did not exclude SARS. Anything that entailed payments, had to be done by the Applicant. The task did not concern SARS, but a payment, which fell within the scope of the Applicant’s duties.

[22]        It was further put to Ms Chifora that the Applicant was on leave and other employees could have made the payment to SARS. She responded that the Applicant could still make the payment, even when he was on leave as he had access to the Respondent’s system and in fact made payments during December 2016, when he was on leave. She further explained that if any other employee was asked to make the payment in the absence of the Applicant, it would have been done but he had not asked anyone to make the payment when he was on leave. The Applicant did not need to be reminded of his duties and the fact that the payment to SARS had to be done.

[23]        The Applicant’s case was that he could not make the payment to SARS in respect of PAYE as he could not make a payment based on an estimate. Ms Chifora explained that the Respondent’s accounting procedure provides for ‘provision’, which includes a statutory payment to SARS, where the payment is made and the actual amount is sorted out later. She explained that where a payment is known to be made, it could be made on an estimate without a statement of the exact amount, such as a payment to SARS or a payment in respect of electricity.

The Applicant’s case

[24]        The Applicant testified and he explained the nature of the functions he was expected to perform, which included cash flow management. He explained that in terms of the Respondent’s procedure for payments to be made, there has to be an invoice and supporting document submitted by the person requesting the payment to be made, where after the finance department will do a reconciliation of the paperwork, get approval from the general manager and after all of that had been done, the actual approved amount is captured and loaded, where after it is released and the payment is made. He explained that in the finance department there were five employees who could do the final release of a payment.

[25]        The Applicant’s case was that the PAYE schedule had to be prepared by the human resources department and after the reconciliation, the Respondent would pay the amount that was approved by the general manager. Without the approval from the general manager, the payment to SARS could not be loaded or released. The general manager ultimately decides whether the amount to be paid was the correct amount and whether the Respondent in fact had the funds available to pay it.

[26]        He explained that the practice was that the paperwork would be submitted two days before the payment is made for everything to be reconciled, approved and loaded on to the bank system. In respect of the payment for December 2017, that led to his dismissal, the paperwork was only submitted on 8 January 2018, when the payment had to be made by the 7^th, thus it was submitted late. He came back from leave on 10 January 2018 and on 11 January 2018 he assisted with the loading and approval of the amount to be paid to SARS.

[27]        The Applicant testified that in terms of his contract of employment, he was not to be involved in management accounts, audits and SARS. He also testified that if the PAYE schedule was submitted on time, the release would be done on time and that “I will be able to make the deadline not to incur penalties.”

[28]        The Applicant’s case was that he was dismissed for not assisting the Respondent to do the capturing of what had not yet been approved. He was dismissed whilst Ms Nkosi got a final written warning for not submitting the PAYE schedule to the finance department on time, and to him this was very unfair.

[29]        In cross-examination the Applicant conceded that the bank function of loading, approval and release of payments was assigned to him. He further conceded that he captured and made the payment to SARS in September 2017 as that was his job to do. He explained that the release function is done by two employees who are signatories to the Respondent’s bank account.

[30]        The Applicant disputed that it was his function to pay the PAYE monies over to SARS as SARS had been removed from his functions. On the question as to why he had made the payments to SARS from September 2017 until February 2018 when it was not part of his duties or functions, the Applicant responded that he was merely assisting and helping out. He insisted that SARS was completely excluded from his tasks and he did it merely to assist.

[31]        In respect of the payroll for December 2017, the Applicant testified that it was loaded and approved before he went on leave. He conceded that if the payroll was done, the Respondent’s PAYE obligation towards SARS at the end of December 2017 would have been known. He subsequently disputed that the payroll was done at the time when he went on leave.

[32]        The Applicant was referred to his evidence during his internal disciplinary enquiry where he was asked how the PAYE projection for December 2017 could be done before he went on leave. He responded that the salaries were paid on 14 December and he had the wage projections for 30 December 2017 and furthermore that based on his experience, the projected SARS liability was plus minus R 1 million. The Applicant was asked why he did not obtain approval for a projected amount of R 1 million to be paid over to SARS by the end of December 2017, knowing that he was responsible for the payment to SARS, knowing that he would be on leave and only returning in January 2018 and being aware of the email from the CEO stating that SARS payments should not be made late because it results in penalties. The Applicant’s response was that the responsibility was not his and that payments to SARS have never been made on projections, but are made on the actual amount that is approved for payment.

[33]        The Applicant further explained that he had a discussion with the general manager but he indicated that the decision on the payment to SARS would only be made once he had the actual figures. In his disciplinary hearing, the Applicant called the general manager as his witness and the general manager’s evidence during the disciplinary hearing did not support this version that the Applicant presented at the arbitration proceedings.

[34]        The Applicant conceded that the Respondent’s financial position was such that it could not afford to pay unnecessary penalties to SARS and the penalty of R 111 350 that had to be paid in respect of the late payment of the PAYE, was substantial.

[35]        The Applicant conceded that he was responsible to pay the Respondent’s creditors and that SARS was indeed a creditor and that it was part of the scope of his duties to pay whatever debts the Respondent owed to SARS.

The arbitrator’s findings

[36]        The issue to be decided by the arbitrator was whether the Applicant’s dismissal was substantively fair. The crux of the case was whether the charge for which the Applicant was found guilty on and dismissed for related to a function that was part of his responsibilities or not.

[37]        The arbitrator found that the payment of PAYE to SARS was part of the Applicant’s tasks and functions and he based this finding on a number of factors: firstly, the payment of PAYE was carried out under the function banking and SARS was a creditor, the payment of which was part of the Applicant’s functions. Secondly, the Applicant performed the function of paying PAYE to SARS from September 2017 until February 2018, which does not support his version that it was not part of the functions he was required to perform. Thirdly, as a member of the finance team which the Applicant was included in the email sent by the Respondent’s CEO, warning and instructing the team to be extremely vigilant in not defaulting in the payment of SARS by making the PAYE payments late, due to the penalties the Respondent would have to pay. Fourthly, the Applicant did not dispute that he had been able to and in fact had done payments to creditors previously when he was on vacation and lastly the Applicant’s argument that he could not make cash flow projections or authorise the release of an estimated PAYE figure prior to going on leave because all the documents were not submitted to him, indicates an unacceptable lapse in managerial duty of decision making.

[38]        The arbitrator accepted that the Applicant was a senior managerial employee, who knew that he was not going to be available when the payment to SARS was due, but he had failed to put plans and measures in place to have the payment effected by any other employee in the finance department, who was able to do that. The Applicant did not delegate the task, he did not make any cash flow projections nor did he authorise the release of an estimated amount, to be sorted out with SARS when the actual figures were available.

[39]        The arbitrator accepted that the Applicant’s failure to ensure that the Respondent did not default in paying SARS before 7 January 2018, knowing that he would be on leave at the time when the payment was due, displayed an unacceptable lack of care and indeed a gross dereliction of duty on the part of the Applicant. The arbitrator accepted that a single act of negligence seldom warrants dismissal, but senior managerial employees, whose work is important and where a lapse could have or has had disastrous consequences for the employer, constitutes an exception.

[40]        The arbitrator placed reliance on Somoyo v Ross Poultry Breeders (Pty) Ltd[1] where progressive discipline in the case of negligence was not required where the “degree of professional skill which must be required is so high and the potential consequences of the smallest departure from that high standard are so serious that one failure to perform in accordance with those standards is enough to justify dismissal.

[41]        The arbitrator found that the Applicant, who was a senior managerial employee, whose portfolio of duties and responsibilities included payment of PAYE to SARS, was indeed grossly derelict in failing to put measures in place to prevent a default in the payment of SARS, a creditor of the Respondent. The arbitrator found the Applicant’s argument and explanations not persuasive and unacceptable for an employee of his standing, who knew the rule and who had been tasked with a function for which he is held accountable.

[42]        The arbitrator found the Respondent’s version more substantiated and probable on a balance of probabilities and held that the Respondent discharged the onus to prove that the Applicant’s dismissal was effected for a fair reason. Ultimately the arbitrator found the Applicant’s dismissal substantively fair and his case was dismissed.

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

The test on review

[43]        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.

[44]        The Labour Appeal Court (LAC) in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration[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.’

[45]        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[4].

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

The difficulties in the Applicant’s case

[47]        Considering the test that I have to apply, there is an obvious difficulty with the Applicant’s case in that the Applicant seeks to attack each and every finding of the arbitrator on every piece of evidence. The Applicant has taken a microscopic approach and has dissected and set out every piece of evidence and fact that it believes were either not considered by the arbitrator or incorrectly accepted by him.

[48]        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 [5].

[49]        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 Labour Relations Act[6] (LRA) which requires the arbitrator to deal with the substantial merits of the case and to do so expeditiously and fairly.

[50]        The ultimate question is whether holistically viewed, the decision reached 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 which this Court has to avoid. I have to consider the totality of the evidence placed before the arbitrator.

[51]        The Applicant raised a number of issues as grounds for review and I will deal with the topics covered by the grounds for review.

Arbitrator exceeded his powers

[52]        The first ground for review is that the arbitrator exceeded his powers.

[53]        The Applicant submitted that the arbitrator exceeded his powers, when he had to determine whether the Applicant’s dismissal was fair or not, in the following respects:

53.1.   When he determined the Applicant’s seniority and his failure to put plans and measures in place to have the PAYE effected timeously;

53.2.   When he played two roles in the same proceeding, that of arbitrator and testifying on behalf of the Respondent;

53.3.   When he decided that the Applicant was aware that SARS ought to have been paid by the 7^{th day} of the month because a late payment results in a penalty to the Respondent;

53.4.   When he determined whether it was part of the Applicant’s duties or whether the Applicant was aware that he must pay SARS.

[54]        There are two broad categories of excess of power – absence of jurisdiction and excess of powers within jurisdiction. The first is where an arbitrator acts in the absence of jurisdiction, that is where the necessary jurisdictional facts are not in existence, such as the existence of an employment relationship or a dismissal. The second category is where an arbitrator, having jurisdiction, exceeds the limits of his / her powers, for example where an arbitrator orders reinstatement of an employee whose dismissal was found only to be procedurally unfair, grants more than the maximum permissible compensation or decided an issue which the parties have not placed in dispute[7].   

[55]        There is no merit in the ground for review relating to the exceeding of the arbitrator’s powers. I say so for a number of reasons.

[56]        The allegation that the arbitrator played two roles and that he had testified on behalf of the Respondent is absurd and is not supported by the transcribed record of the arbitration proceedings. There is nowhere in the transcript where the arbitrator ‘testified’ and this averment is made without any consideration of the record or the veracity of the allegation.

[57]        The question whether the Applicant was responsible to make the PAYE payment to SARS and whether that was part of his duties, was a question central and material to the issue that the arbitrator had to consider. It is evident from the transcript that it was identified as a critical question from the onset of the proceedings. The arbitrator certainly did not exceed his powers in considering the aforesaid factors as alleged by the Applicant.

[58]        It is evident that in raising these issues as grounds for review, the Applicant had no consideration or understanding of what would constitute conduct where an arbitrator would in fact exceeded his powers.

Arbitrator committed gross irregularity

[59]        The Applicant’s case is that the arbitrator committed a gross irregularity in the following respects:

59.1          During cross-examination of the Respondent’s witnesses he interrupted the Applicant from cross-examining the witnesses in full and exercising his right to a fair hearing;

59.2          He failed to treat the Applicant with respect by arguing or bullying the Applicant;

59.3          By failing to reinstate the Applicant to his position as there was no misconduct committed by the Applicant.

[60]        In my view, there is no merit in the complaint that the arbitrator committed a gross irregularity, as alleged by the Applicant.

[61]        Section 138 of the LRA sets out the general provisions for arbitration proceedings and section 138(1) provides that a commissioner may conduct the arbitration in a manner that he / she considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum legal formalities. Arbitrators have a broad discretion in terms of determining an appropriate process for presenting evidence, which might be adversarial or inquisitorial or a variation of the two, but the procedure must remain fair and even-handed.

[62]        In casu, a perusal of the transcribed record shows that the arbitrator narrowed the issues in dispute and that were to be determined and that he, throughout the proceedings, attempted to focus the questioning on the relevant issues and to control the process so that the evidence adduced remained relevant to the issues he had to decide.

[63]        The arbitrator’s intervention to steer the process in a focussed direction to ensure that evidence relevant to the issues he had to decide was adduced, is part of the discretion which the arbitrator has to conduct the arbitration proceedings in a manner appropriate to determine the dispute fairly and quickly.

[64]        The transcribed record does not support the Applicant’s case that he was deprived of the right to have a fair hearing or that he was not treated with respect or that he was bullied by the arbitrator. The Applicant did no more than to make these statements without any substantiation.

[65]        There is also no merit in the complaint that the arbitrator committed a gross irregularity by not reinstating the Applicant. The arbitrator found that he was guilty of the misconduct he was dismissed for and as a result, reinstatement could not be an option on the table.

Arbitrator misdirected himself

[66]        The Applicant’s case is that the arbitrator misdirected himself in a number of respects. Those are inter alia, that the arbitrator had accepted evidence that the Applicant was a senior managerial employee who failed to put plans in place to have the PAYE payment effected, that he accepted the Respondent’s version that the effective date of the new contract was 5 September 2017, when the Applicant’s salary was actually reduced on 1 July 2017 and the payment to SARS in August 2017 was not done by the Applicant, that the arbitrator failed to consider that his contract did not include discretional powers to make a payment to SARS without the approval from the general manager and that he failed to appreciate the significance of the late PAYE schedule by Ms Nkosi.

[67]        The question that this Court must ask on review is whether any of the issues raised by the Applicant in respect of which he alleged that the arbitrator misdirected himself, were material to the determination of the question whether the Applicant’s dismissal was substantively fair and whether the arbitrator’s failure to consider those facts or accepting them, distorted his ultimate decision.

[68]        In Head of the Department of Education v Mofokeng[8] 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’. (My emphasis)

[69]        In my view, the arbitrator did not misdirect himself and the factors raised by the Applicant did not have a distorting effect upon his conception of the enquiry, the issues to be determined or the arbitrator’s ultimate decision. Even if the arbitrator misdirected himself, none of the issues raised by the Applicant were material and of such a nature that they distorted the outcome of the arbitration.

[70]        In casu, the arbitrator had to determine whether the Applicant’s dismissal was substantively fair. The arbitrator found that his dismissal was substantively fair as the Respondent was able to prove, on a balance of probabilities that there was a fair reason for his dismissal. In my view this did not constitute a misdirection that is to be reviewed.

Conclusion

[71]        I have to consider 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 ultimate question is whether holistically viewed, the decision taken by the arbitrator was reasonable based on the evidence placed before her.

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

[73]        In Bestel v Astral Operations Ltd and Others[9] 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 the 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.’

[74]        I must ascertain whether the arbitrator considered the principal issue before him, evaluated the facts presented and came to a conclusion that is reasonable.

[75]        I have considered this question after perusal of the transcribed record, the arbitration award and the grounds for review raised by the Applicant. Considering the evidence before the arbitrator holistically, the arbitrator’s findings are not disconnected from the evidence, but in fact, are based on the evidence presented.

[76]        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. The arbitrator did not misconceive the enquiry but indeed determined the principal issue which he was required to determine.

[77]        This Court has a wide discretion in respect of costs. In my view this is a case where a cost order would be justified, but since the Respondent was not represented by attorneys but was self-represented, a cost order would serve no purpose.

[78]        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

Representatives:

Applicant:                              Mogwerane & Letsoalo Attorneys

Third Respondent:               Self represented

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