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Not reportable

THE LABOUR COURT OF SOUTH AFRICA, HELD AT CAPE TOWN

Case no: C951/2015

In the matter between:

SYLVAIN MATUNGA KALOMBO	Applicant
And
STRAND STEEL AND ROOFING CC	First Respondent
COMMISSIONER URSULA BULBRING (N.O.)	Second Respondent
COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION	Third Respondent

 

Date of Set Down: 6 August 2020 (on papers)

Date of Judgment: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 15h30 on 25 February 2021

Summary: (Review – Review application lapsed in terms of Labour Court Practice Manual – in the alternative, but obiter, review application ought to be dismissed)

JUDGMENT

LAGRANGE J

Introduction

[1]       This is an opposed review application, which the parties agreed could be determined on the papers and without a court appearance or a videoconference hearing, in view of the prevailing panmic at the time. The applicant, Mr S M Kalombo, (‘Kolombo’) filed the founding and supplementary papers himself, but had appointed an attorney by the time the matter was enrolled, who filed heads of argument on his behalf.

[2]       The arbitrator found that Kalombo’s dismissal by the respondent (‘Strand Steel’) was substantively and procedurally fair. Kalombo had been dismissed after being found guilty of: being absent from work without permission from 31 March to 6 April 2015; being absent without contacting the employer from 1 April to 6 April 2015; leaving work without permission on 9 and 10 April 2015 and thereafter being absent without leave until 15 April 2015. Certain developments, which are discussed below took place at the disciplinary inquiry, which the company viewed as aggravating factors. On the basis of being found guilty of those charges and what transpired at the inquiry, the employer formed the view that the employment relationship had broken down.

[3]       Apart from claiming that his dismissal was unfair, Kalombo also raised a number of other issues for determination relating to: alleged unpaid leave pay; payment of wages from another firm at the same premises (‘Fescon’), which he claimed he had worked for while working for Strand Steel; alleged short payment of his salary for April 2015; various unemployment related claims and a letter of reference from the company. Although the arbitrator found that Kalombo’s dismissal was procedurally and substantively fair, she found that the company owed him R6,922.01 in outstanding sick leave pay, which she ordered it to pay him.

[4]       The applicant filed the review application timeously on 13 November 2015. Although there appeared to be more than one service of the application effected on Strand Steel, it acknowledged receipt of the application and filed a notice of opposition a few days later. It was only on 9 July 2018 that Kalombo filed his supplementary notice confirming that he stood by his original submissions. Strand Steel in turn filed its opposing affidavit some three months later, whereas it should have been filed 10 days after it received the notice in terms of Rule 7A (8) of the labour court rules. Simultaneously with filing its opposing affidavit, Strand Steel applied for condonation for the late filing thereof. In the course of its condonation application, though this was not something mentioned in its heads of argument it raised a question whether or not the review application had not lapsed in terms of the provisions of the Labour Court Practice Manual. In the light of the discussion below, it is apparent that by the time Strand Steel filed its answering affidavit, the review application had already lapsed so it is not necessary to consider the merits of the condonation application.

[5]       The manual contains a number of provisions which deal with the lapsing or deemed withdrawal of review applications. Clause 11.2.2 of the manual read with clause 11.2.3 provides that if the record of an arbitration is not filed within 60 days of the applicant being advised by the registrar that the record has been received, it will be deemed to have been withdrawn unless an extension of time has been granted for the purpose of filing the record. In this instance, the court file contains a notice in terms of rule 7A (5) from the registrar dated 24 November 2015 advising the parties that the record had been received from the CCMA. Consequently, the record should have been filed by Kalombo by late February 2016. It appears that the transcript had been completed by 3 February 2016 and was filed with the labour court on 2 March 2016. There was also a letter from Kalombo to the court requesting an extension of time of 45 days to file the record, owing to the volume of the record and financial challenges, which I assume was a reference to Kalombo’s difficulty of paying the transcriber’s fees. In any event, he was able to file the transcript within a month of making that request. What is not clear is when the record was served on Strand Steel’s attorneys of record, but there is no reason why it would not have been served on them around the same time. Up to that stage it would appear that of the review application in the proceeding reasonably expeditiously.

[6]       What is mysterious and unexplained is why Kalombo only filed his Rule 7A

(8) notice in July 2018, nearly two and half years later. Assuming he had filed the record at the beginning of March 2016, he ought to have filed this notice a couple of weeks later in terms of Rule 7A (8) (a). Clause 11.2.7 of the practice manual prescribes that all the necessary papers must be filed within 12 months of the launch of the application, which means that the review application should have been ripe for hearing by mid November 2016. In the absence of the Rule 7A (8) been complied with by then clause

11.2.7 requires the application to be archived and be regarded as lapsed “unless good cause is shown why the application should not be archived or be removed from the archive.” There is no evidence that Kalombo has provided any explanation for not finalizing the application within a year and according the review application must be regarded as having lapsed, in the absence of him having shown good cause for its upliftment from its archived status. In this regard it is also noteworthy that section 145(5) of the LRA states:

‘(5) Subject to the rules of the Labour Court, a party who brings an application under subsection (1) must apply for a date for the matter to be heard within six months of delivery of the application, and the Labour Court may, on good cause shown, condone a late application for a date for the matter to be heard.’

[7]       Despite the status of the application it was enrolled for hearing on 23 October 2019, when it was adjourned sine die on account of Kalombo seeking legal representation. Clearly the lapsed status of the application was not raised by Strand Steel’s representatives at that stage. It also appears to been a matter which neither party addressed in the course of the heads of argument and submissions made when the matter was re-enrolled on 6 August 2020 and the parties had agreed to have it decided on the papers.

[8]       Strictly speaking, the application has lapsed and remains lapsed in the absence of an application by Kalombo to show that there was good cause for the extremely long delay between the transcript being filed at the labour court. However, even if I am wrong about the status of the application, the application ought to be dismissed in my view for the reasons set out below. As a matter of law though these reasons are obiter.

Summary of the narrative

[9]       I do not intend to provide a complete summary of the evidence but to highlight aspects thereof. There were a number of areas of disputes of fact.

[10]    Kalombo started working at the premises of the business either in 2004 or 2006, though nothing much turns on this, other than the obvious fact that he had worked for the firm for some time. At the time of his dismissal on 6 April 2015, he worked as an administrative salesperson. The evidence of the owner of Strand Steel, Mr S Hector (‘Hector’), was that Strand Steel sold roof sheeting and related products and employed nine employees. Fescon was the first entity, which sold second-hand roof sheeting to low income earners. Eventually the business grew and started producing its own roofing material. At that stage Fescon used to trade under the name of Strand Steel, but for tax reasons, it made sense to separate the two businesses. Fescon is covered by a bargaining council agreement, whereas Strand Steel, which is engaged in wholesale and retail sales, is not. Hector confirmed that when he was first employed before the two businesses were split Kalombo worked for Fescon. There was still was some overlap between the work performed by employees in both businesses, which occurred when one business was short of work, but generally any work done by Kalombo for Fescon did not amount to more than about 15 minutes a day.

[11]    The final charges he faced were stated thus:

‘1. Absence from work without permission from 31 March 2015 to 6 April

2015.

2.  Absence from work without contacting your employer from 1 April 2015 to 6 April 2015.

3.  Leaving the work premises without permission on 9 and 10 April 2015 and subsequently being AWOL until 15 April 2015.

4.  As a result of the above the company believes there has been a breach of trust and breakdown of the employer relationship. ‘

The internal disciplinary inquiry was chaired by an external chairperson, who found Kalombo was guilty of the first three charges. After considering the evidence, the chairperson concluded that the most probable reason for Kalombo being absent from work was owing to stress he felt because the employer had not dealt with his grievances. However, that did not excuse him from coming to work and he also could not explain why he came to the workplace on two days only to obtain an IRP5 certificate and without working. Given that Kalombo made it clear that he would not return to work until his concerns were only addressed and would not return on the basis that they would be addressed once he was back at work, the chairperson felt it was evident that the employment relationship had broken down and despite Kalombo’s length of service dismissal was appropriate.

[12]    There was no dispute that Kalombo was absent from work from 1 to 6 April 2015. The period included the Easter weekend, and Friday 3 April and Monday 6 April public holidays. Hector said that the only communication he received from Kalombo was an SMS on 31 March saying that he was not well and would not be coming to work. Kalombo claimed he was at work but had gone to take photos of trusses in Phillipi and seen a client in Athlone that day. Hector disputed that saying that happened on the previous day, 30 March. However, as mentioned below, Kalombo’s letter of complaint presented of 22 April supports Hector’s version that Kalombo did not come to work on 31 March. Kalombo said he sent SMS messages on 1 and 2 April to say he was sick. His doctor said he was fatigued, stressed and needed to rest. He had backache too. Hector denied receiving the SMSs and no copies of those messages were produced at the arbitration hearing. He also disputed confirming that he had received them when Kalombo asked him.

[13]    On Tuesday 7 April at 17h30, Kalombo sent an email to Hector attaching a doctor’s note stating that he had a “medical” illness and was booked off work for 7 and 8 April. Kalombo said his wife had taken him to hospital for his backache. He was booked off for two days. When Kalombo return to work on 9 April, Hector queried why no medical certificate had been provided for his absence prior to 6 April. Kalombo respondent that he was not well, he was stressed as a result of something that had happened at work, which he would not be specific about. Kalombo had also complained that he got no time off since his employment with the company and a lot was expected of him. He asked for his IRP 5 and salary slip. Kalombo claimed he had asked for these because he wanted to check his salary deductions. Hector reminded Kalombo that he reduced his workload and hours of work without reducing his salary and paid him commission even though there was no written record of the sales he made. He reminded Kalombo that he had ask for a sales report, but Kalombo merely repeated his request for his IRP 5. Kalombo said that he told Hector he was unwell and could not stand for long and Hector gave him the choice of staying or leaving, so he left.

[14]    Hector said Kalombo came to work the next day (10 April) at 08H00 and asked for his IRP5. When he was told it was not yet available he left. He had not even put his bag down or gone to his workdesk, and Hector clearly believed that Kalombo had not intended to report for work. A note was received from Scorpion legal advisors on Monday 13 April stating that they were acting for Kalombo. Kalombo did not report for work that day either. Subsequently Kalombo submitted a medical certificate booking him off for

13 and 14 April. On 15 April Kalombo neither reported for work nor contacted Hector, but late on 15 April Kalombo sent a medical certificate by email, which was issued by another doctor booking Kalombo off from 16 April to 21 April. Kalombo said the doctor made the same diagnosis as the previous one.

[15]    On 22 April, Kalombo came to work and handed in a lengthy letter of complaints. His letter was dated the previous day. It referred back to the fact that August 2014 Kalombo had previously resigned. He had resigned on that occasion because a number of unresolved grievances, which he claimed he had raised with management more than once. In his resignation letter he said that despite employed with the company since 2004 he did not see himself dying anyway and had been promised positions in accordance with his skill and experience but nothing came of those promises. Hector disputed this, testifying that the firm had agreed to adjust his working conditions, which would have entailed a change in his duties and a reduction in his working hours, but the amount of commission still had to be discussed and agreed upon.

[16]    The detailed letter of complaint presented at work on 22 April 2015 referred back to his previous resignation letter noting that during his notice period discussions had been held and recommendations made to address his concerns but eight months later there was still no progress. Some of the concerns he referred to specifically were: an alleged promise of commission for work he did with the subcontractor in 2009; he was reprimanded for using his cell phone at work whereas other staff use theirs; his job description still require clarification and was only in a draft form; his commission payments were in adequate, and more recently on 30 March 2015, the receptionist refused to cooperate with him in putting him through to a customer to finalize a quotation and he heard a manager leaving the office and saying goodbye to other staff but not him. He felt humiliated and after handing in a report waited until it was time to go home. In the concluding paragraphs of his letter of complaint, Kalombo stated:

‘I could not stand it anymore and the next day I was sick, stressful and was obliged to see the doctor because those [matters related in the letter] affect me physically and spiritually.

Finally, I discovered myself going nowhere and asking myself must I live only under promises!

To resolve these matters I have some requirements:

·         a written contract backdated since the time I started working;

·         in that contract or my responsibilities to be defined clearly;

·         all my commissions regarding businesses, sales brought in to be defined and not deduction

·         I need to be fixed about my leave!! Because it is my rights”

He concluded with a demand to be advised if he was registered with any bargaining Council.

[17]    Kalombo was asked to wait and at 08H35 was presented with a notice of suspension and the first notice of the disciplinary inquiry. At that stage, the charges were the following:

17.1     Unreliability due to his frequent and continuous absenteeism for 12 days from 9 February until 14 April 2015.

17.2     Abuse of sick leave.

17.3     Bringing the good name of the employer into disrepute poor client relationship.

17.4     Left the workplace or absconded during working hours without permission on 9 and 10 April.

17.5     Failing or refusing an instruction to sign the attendance register, which was characterized as gross insubordination and,

17.6     Making discriminatory remarks against the female dispatch manager, Ms A Smith.

A revised notice was issued on 29 April, in which the charges were confined to ones relating to Kalombo’s absences from work. Hector testified that it was decided that it was Kalombo’s behaviour pattern he wanted to focus on. He dropped the charge concerning Smith, because that was an ongoing problem and he wanted to see if it continued. Furthermore, the woman concerned had been through a lot and actually cried when she was told that Kalombo was no longer employed by the company.

[18]    The hearing was chaired by the CEO of an employer’s organization, a Mr G Wright (‘Wright’), assisted by a secretary who took notes of the hearing.

[19]    At the arbitration, the company accepted that the medical certificates provided by Kalombo for 13 and 14 April excused his absence on those days. The representative also acknowledged receiving a medical certificate for the period 16 to 21 April.

[20]    At the commencement of the arbitration hearing when Kalombo was passed what remedy he sought for his unfair dismissal he made it clear that he wanted reinstatement if his conditions were met. In short, his conditions were: a claim for salary for the prior 10 years he claimed to have worked for Fescon; leave pay he claimed he had not received since 2008; pay whilst on suspension from 22 April until he was dismissed on 6 may; a copy of the employer’s monthly UI 19 declaration, and a couple of other items.

[21]    Wright testified that the Kalombo had raised for his grievances at the inquiry and at the end of the inquiry in the asked him whether he was willing to come back to work, but Kalombo said he would not until his grievances were resolved. He explained to him that he would make sure that his grievances were attended to but he should return to work while that was being done and could not hold the employer ‘to ransom’ by refusing to work until his demands were met. Kalombo refused to make a commitment to return to work, even though Wright explained to him that it would influence the decision of where the employment relationship would go, especially as the firm felt that there was a question mark over the trust relationship and the feasibility of continuing the employment relationship. Kalombo eventually said that he was not prepared to return to work while his grievances were addressed. Kalombo did not dispute that he had said that Wright had asked him if he would come back to work and that he had told him he wanted his grievances resolved which Wright had undertaken to do.

[22]    In making the decision to dismiss Kalombo, he also took into account the fact there was evidence at the inquiry that there had been complaints from two female employees about his conduct towards them and that one of them had referred a constructive dismissal complaint to the CCMA, resulting from Kalombo’s alleged denigrating treatment of her at work. Kalombo did not dispute that teamwork in the department had become ‘unstable’ after Smith began working there, but implied that was owing to her. He claims he raised this with Hector. He also mentioned that people would not greet him in return when he greeted them. From the evidence it seems that Smith did resign, but returned to work for the company. Kalombo disputed that her resignation had anything to do with him but in fact arose because another employee resigned and Hector had told Kalombo that that was the reason at the time.

[23]    Hector also testified that Kalombo once came into his office and flapped the document under his nose in an aggressive way, which made him lose his temper. In retrospect, he felt he should not have tolerated such behaviour, but Kalombo did apologize when he spoke to him about it the following day.

[24]    Another incidental issue concerned after instructing Kalombo not to use his cell phone at work after observing Kalombo talking to client on his phone. Kalombo felt that he was being singled out because other people use their cell phones during working hours and was told that, in the case of Smith, she had a small child. Kalombo pointed out that everybody had children and he felt he was being unfairly treated. Hector had also testified that Kalombo’s predecessor had been dismissed after it was discovered that he was moonlighting for their main competitor. This apparently explained Hector’s sensitivity about the use of private cell phones to communicate with clients.

[25]    An additional factor the chairperson considered was that there was no acknowledgment by Kalombo that he had done anything wrong and needed to amend his behaviour. In fact, the way he had come to the workplace demanded papers and then left indicated he had an arrogant attitude.

[26]    Wright denied that Kalombo had said that he would come to work if undertakings to deal with his grievances were put in writing. In relation to Kalombo’s complaint that he was not advised of a right to appeal, Wright agreed but said that was because Kalombo was not willing to come back to work.

[27]    When Hector testified, and was asked about the prospect of Kalombo returning to the company’s response was that a lot of damage had already been caused and since Kalombo’s departure former customers had returned saying they were willing to do business with the firm again knowing that Kalombo had left. Kalombo challenged this evidence claiming that in fact customers were put off by Hector’s rudeness. Hector conceded that Kalombo could be charming, but customer loyalty was dictated mainly by the price of their products. He conceded that different customers might have had different experiences with Kalombo.

The arbitrator’s award

[28]    the arbitrator identified the substantive and procedural fairness as issues for determination as well as the following remunerative claims:

28.1     holiday and leave pay allegedly unpaid for 10 years;

28.2     salary for the same period that he claims he worked for Fescon;

28.3     unpaid salary for April 2015 during the time he claims he was ill, which the employer did not recognize because it did not accept the medical certificates.

The question of unpaid suspension was resolved as the company furnished proof of payment thereof and the company agreed to send him IRP5 and UI 19 forms. He had also sought a reference from the company.

[29]    The arbitrator found that Kalombo had sufficient time to prepare his case, given that the inquiry had already been postponed once, and he had a fair opportunity to present his case. The chairperson had no prior knowledge of the matter and Kalombo did not object to him chairing the inquiry and was happy for the matter to be conducted in English. Kalombo was aware of his rights as representation and declined to call to additional witnesses. Kalombo claimed that he was not satisfied that Wright had properly identified himself and his secretary. This appears to have arisen from the fact that Wright was reluctant to give him his business card, though he did explain his background and experience.

[30]    In relation to the merits, the arbitrator summarised Wright’s findings and considered the discussion at the end of the inquiry about Kalombo’s willingness to return to work without first waiting for his grievances to be resolved. She considered Wright’s determination of an appropriate sanction, noting his observations about Kalombo not having an unblemished record, not showing any remorse and his unwillingness to return to work and giving Wright an opportunity to resolve his grievances if he did so. She noted that Wright had the impression that Kalombo felt he done nothing wrong and his attitude was something that could not be remedied, nor was Kalombo willing to return to work.

[31]    The arbitrator then proceeded to summarise the evidence, some of which has been mentioned above.

[32]    Her evaluation of the evidence and argument may be stated briefly as follows:

32.1     The arbitrator concluded that given that Kalombo’s own letter of complaint mentioned that he had been at the Athlone and Phillipi sites on 30 March rather than 31 March, that was decisive of the dispute about whether he was working on 31 March or not. She noted that this example illustrated a trend in the arbitration in which Kalombo insisted on one version and then the company was able to prove the opposite. His claim that he had not been paid wage increases over 10 years was similar.

32.2     The arbitrator found that Hector was ‘reasonable, level headed and sincere’, whereas Kalombo made sweeping allegations he could not substantiate.

32.3     She concluded that Kalombo was not at work on 31 March, nor on 1 or 2 April 2015 and that he neither saw a doctor nor contacted the company. Consequently, he was guilty of the first charge been absent without permission during the period 31 March to 6 April 2015. She believed that Kalombo had insisted that he was at work on 31 March to avoid an inference been drawn that he would have been deemed to have deserted if he was absent for three days without leave.

32.4     In relation to the related charge of not contacting the company from 1 April to 6 April 2015 she did not accept Kalombo’s evidence that he had sent SMS messages on 1 and 2 April. She noted that it was common cause at the disciplinary inquiry that he did not personally contact the company on those days either. The evidence showed that he only saw a doctor on 7 April. She concluded that he was guilty of the second charge as well.

32.5     In relation to the third charge, the arbitrator accepted that it was common cause he saw a doctor on 7 April and was booked off work for 7 and 8 April, which he communicated to the employer. However, the arbitrator found that even if he felt weak, he did not treat Hector with respect when he simply left the workplace without asking for permission on both days. That attitude was also reflected in him advising Hector that he was ‘not around’ to collect the notice of the inquiry. He was also absent without leave on 15 April. Consequently, the arbitrator concluded that Kalombo was guilty of the third charge as well.

32.6     On the question of the appropriate sanction, the arbitrator found that she believed that despite being very busy Hector had attempted to deal with the issues which Kalombo had raised relating to his employment and had tried to resolve conflicts between Kalombo and other employees informally. She noted that Wright felt that even though Kalombo was guilty of the charges that dismissal was not appropriate in relation to the charges. The arbitrator concluded “given that despite there being unauthorised and uncommunicated absence was over one period of time and it does appear from the sick certificates that Kalombo was genuinely sick (although there are uncommunicated days with no sick certificates too)”. She then considered the new development at the inquiry when Wright asked Kalombo if he return to work and Kalombo declined unless his concerns were first resolved.

32.7     The arbitrator considered what probably would have happened if Kalombo had not been dismissed. She found it most likely that the cycle of absenteeism would resume because Kalombo was adamant he would not return to work unless his issues were resolved. Given that Kalombo could not expect to stay away from work if he remained employed, she felt Wright had little alternative but to impose a sanction of dismissal. She also felt that even if Kalombo had resigned because of the company’s failure to resolve his problems he would have struggled to establish that his resignation amounted to a constructive dismissal in circumstances where he did not give the company a chance to resolve his grievances some of which, such as his claim for 10 years’ remuneration from Fescon, were unsubstantiated. She also accepted that the relationship had deteriorated to a point beyond repair.

32.8     The arbitrator also accepted that the chairperson of the inquiry had been independent, objective and had acted rationally and maturely. Kalombo had had sufficient time to consider the charges and the reduced charges were not entirely different as Kalombo claimed. The inquiry was not one-sided and Kalombo had sufficient opportunity to present his case, which was reflected in Wright’s report on the inquiry. She accepted that it was a procedural irregularity that Kalombo did not receive the notification of dismissal in writing but that did not make the procedure unfair. As regards the right of appeal, that was not a material oversight as the Labour Relations Act, 66 of 1995 (‘the LRA’) does not provide such a right. Consequently, the dismissal was procedurally fair.

32.9     The arbitrator then found that Kalombo was entitled to sick leave pay for the period from 1 to 22 April 2015, despite the absence of medical certificates for a number of the work days in that time.

Grounds of review

[33]    It is now well established that a party that wishes to review an arbitration award on the basis of unreasonableness or some other misdirection by the arbitrator in the assessment of evidence must satisfy the following test:

‘[31] ... Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the enquiry or undertake the enquiry in a misconceived manner. There must be a fair trial of the issues.

[32]  However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted s 145 of the LRA, F confining review to 'defects' as defined in s 145(2) being misconduct, gross irregularity, exceeding powers and improperly obtaining the award. Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her.

^[33]      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 enquiry. 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 enquiry, 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.’ [1]

(emphasis added)

[34]    Accordingly, a party reviewing an arbitration award on grounds of reasonableness must satisfy the stringent requirements of the test as it has been developed by the LAC. Furthermore, the grounds of review must be set out in the founding papers and new grounds may not be advanced in heads of argument.[2] Consequently, regard is only had to those grounds raised in the founding papers, which were also pursued in the heads of argument. The grounds relate principally to the reasonableness of the arbitrator’s findings on each act of misconduct.

[35]       What should be plain is that the review test summarised above is nothing like an appeal. The court is not concerned with whether it agrees with the arbitrator’s decision or not. The court is only concerned with glaring deficiencies in the award arising from some irregularity in the proceedings or material flaws in the arbitrator’s reasoning which, if corrected, would have made it impossible for the arbitrator to have reached the conclusions they did. The court appreciates that the principles of review of arbitration awards under the LRA is often an extremely difficult concept for the lay litigants to grapple with, but the court cannot relax the principles simply because they are difficult to understand. It must also be stressed that the task of the court in this type of review is not to comb through every line of the award for every era of reasoning. The LAC has said in this regard:

“… [A] court must be careful not to parse an award by second respondent in the same fashion as one would an elegant judgment of the Supreme Court of Appeal or the Constitutional Court. These awards must be read for what they are, awards made by arbitrators who are not judges. When all of the evidence is taken into account, when there is no irregularity of a material kind in that evidence was ignored, or improperly rejected, or where there was not a full opportunity for an examination of all aspects of the case, then there is no gross irregularity….”[3]

[36]       In his founding affidavit, which he did not supplement, Kalombo set out a limited number of grounds of complaint about the arbitrator’s award, as his grounds of review. In short, these were:

36.1     The arbitrator failed to take account of the fact in terms of item 3 (4) of schedule 8 to the LRA, The Code of Good Practice: Dismissal, it is generally not considered appropriate to dismiss an employee for a first offense, and in his case where he had at least 10 years’ service with the company.

36.2     Contrary to the arbitrator’s conclusion, he was not absent from work from 1 April to 22 April 2015 without good cause because he was ill during that time, which is something, which the arbitrator herself paradoxically accepted.

36.3     The arbitrator failed to appreciate that, since 2006 he had only received leave in 2012 and 2013 amounting to three weeks in total.

36.4     He was still entitled to salary and commission for the time he worked for Fescon.

36.5     The arbitrator’s conclusions about his poor relationships with customers and colleagues ignored the fact that it was him who raised the issue of the bad atmosphere created when Smith joined the company.

36.6     He did not receive a letter of termination until the day of the arbitration hearing.

36.7     He also queried why another employee’s case at been heard at the bargaining Council, whereas in his case the bargaining Council at declined jurisdiction.

[37]       In the heads of arguments submitted by his attorney, apart from emphasizing some of the grounds of review raised in the founding affidavit, a host of completely new grounds were advanced contrary to the principles mentioned above relating to setting out grounds of review in the founding papers.

[38]       For the sake of completeness, the new grounds mentioned concerned:

38.1     the arbitrator’s alleged failure to consider the fact that Kalombo had accrued leave days, which Strand Steel could have used instead of dismissing Kalombo;

38.2     the arbitrator misconceived the distinction between procedural and substantive fairness in dismissal;

38.3     the arbitrator failed to consider whether the internal disciplinary hearing was properly constituted in terms of the LRA;

38.4     she failed to consider that Kalombo had an adequate explanation that his absence was beyond his control, owing to his illness, which was substantiated with medical certificates and in so far as the medical certificates did not cover every day he was absent he was still covered by the provisions of the Basic Conditions of Employment Act, 75 of 1997 (‘the BCEA’), which permitted him to the absent for a maximum of two days without providing a medical certificate;

38.5     the arbitrator failed to consider that Strand Steel was not entitled to dismiss Kalombo for a trifling absence which caused it little or no prejudice;

38.6     the arbitrator failed to consider that Strand Steel did not consider less formal measures short of dismissal;

38.7     there was no evidence that Strand Steel’s disciplinary code regulations compelled Kalombo to notify it immediately of the reason for his absence;

38.8     the arbitrator failed to consider Wright’s supposed concession that his decision disciplinary inquiry was ‘ill-conceived, erroneous and not based proven facts’[4];

38.9     the arbitrator failed to consider that Kalombo was not sufficiently notified of the charges in the language and form he could understand or to have an opportunity to prepare and state his response, and

38.10 the arbitrator ignored the fact that Kalombo was not notified of the reason for his dismissal only advised of his rights to referred the matter to the CCMA.

[39]       Apart from simply submitting that these alleged deficiencies demonstrated that these alleged omissions by the arbitrator may meant that her decision was so irregular no reasonable arbitrator could have reached those conclusions. What is lacking in respect of most of the complaints is an attempt to demonstrate that the alleged irregularity on the part of the arbitrator would necessarily have led to a different conclusion.

[40]       The crux of the substantial criticism of the award relates to whether the arbitrator could justifiably find fault with Kalombo for his prolonged absence from work in July 2015, given that he did provide medical certificates for substantial portions of that absence. The arbitrator concurred with the chairperson of the internal inquiry that even though Kalombo was guilty of the charges relating to unauthorised absence, if the inquiry had simply ended there, the dismissal probably would not have been justified.

[41]       The arbitrator did acknowledge that Kalombo could not be subject to disciplinary action for the days that his absence was covered by sick leave certificates. However, her findings in respect of the charges relating to specific days he was not at work, or did not report on his absence were not unreasonable ones to reach on what was before her. Even though Kalombo’s attorney’s submission that Kalombo was not obliged to provide a medical certificate for two or less days’ leave is correct, this was never raised in the arbitration. In any event, it was not disputed by Kalombo that he was supposed to contact the employer if he was absent, irrespective of the reason. He never claimed it was not required. On the contrary, his defence was that he had contacted Hector. On 9 and 10 April he went all the way to work just to collect a document, but just left when it was not available. No justification was provided why he had to get the document so urgently, that he went to the workplace despite being ill.

[42]       In any event, the arbitrator clearly also did not feel his dismissal was justified even if he was guilty of the charges. Hence the criticism of the arbitrator for not realising a lesser sanction might have been appropriate is misplaced. The difficulty regarding the imposition of a lesser sanction was created by Kalombo by placing the chairperson in a dilemma when he declared his unwillingness to work while his outstanding complaints were unresolved. It is noteworthy that it was some of these very issues which had apparently been the first cause of his his illness, because they made him stressed. It is also not insignificant that when Kalombo last reported at the workplace, his first step was to hand up a two-page letter setting out his complaints and that he had taken this step after consulting legal advisers during his sick leave. The demands all related to issues predating his absence from work. Even if he had not been well, he was intent on throwing down a gauntlet over his grievances.

[43]       Any sanction imposed on Kalombo less than dismissal implicitly would have meant his suspension would be uplifted and he would return to work. However, he made it crystal clear to the chairperson that he would defy the obligation to return to work until his grievances were resolved. Even when Wright sought to offer him a way of dealing with his grievances without refusing to return to work, Kalombo was unyielding. In the circumstances, it was hardly unreasonable to conclude that the upliftment of Kalombo’s suspension subject to a warning of some kind would not be possible to implement, because he would not accept the obligation to return to work. It was understandable that the chairperson felt that Kalombo’s defiant bargaining stance had narrowed the scope of his choice of sanction. It also demonstrated very vividly how degraded the employment relationship had become to the extent that Kalombo was willing to take unilateral action to pressurise Strand Steel to address his grievances, by refusing to perform an obligation to work which is fundamental to the employment relationship. I would not consider the arbitrator's decision to uphold the sanction to be one no reasonable arbitrator could arrive at in the circumstances. The argument advanced by Kalombo’s legal representatives to the effect that Kalombo’s alleged accrued leave days could be utilised as an alternative to dismissal, with respect was never suggested by Kalombo in either his internal enquiry or the arbitration, and the arbitrator can hardly be criticised for not considering that.

[44]       A number of the points raised by Kalombo’s heads of argument also raise issues never argued or placed in evidence before the arbitrator, such as those mentioned in paragraphs 39.1, 39.3, 39.4 (in respect of the BCEA issue), 39.7 and 39.9.

[45]       In relation to Kolombo’s remuneration claims going back years, it is questionable whether the arbitrator would have had jurisdiction to consider some of them because s 74(2) of the BCEA only allows an arbitrator to entertain claims for remuneration if they have not prescribed. In any event, the evidence tendered by Kalombo in support of those claims at the arbitration was very vague. Moreover, insofar as he had any claims against Fescon, Fescon was not joined in the arbitration proceedings as a respondent.

[46]       In conclusion, even if the review application had not lapsed I would not set aside the award on review for the reasons above.

Order

[1]       The review application has lapsed in terms of clause 11.2.7 of the Labour Court Practice manual and in the absence of good cause being shown for it being uplifted from the archives, there is no review application before the court to determine.

[2]       Accordingly, the application is struck off the roll.

[3]       No order is made as to costs.

Lagrange J Judge of the Labour Court of South Africa

Representatives (no appearances)
For the Applicant	Sharuh Attorneys
For the First Respondent	L E Bell of C&A Friedlander Inc

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