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IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

 

Case No: D 692/19

Not Reportable

 

In the matter between:

 

TOYOTA SOUTH AFRICA MOTORS (PTY) LTD       Applicant

 

And

 

NUMSA obo NJILO, LUNGANI                                 First Respondent

 

CCMA                                                                        Second Respondent

 

N DUBAZANE N.O.                                                   Third Respondent

 

Application heard: 1 June 2022

Delivered: 14 July 2022 (Electronically)

 

JUDGMENT

 

WHITCHER J

 

Introduction

 

[1]             This is a review application brought in terms of section 145 of the Labour Relations Act, 1995, seeking that the arbitration award[1] be set aside and that the first respondent’s dismissal be declared substantively fair. The applicant also seeks condonation for the late filing of the review and the record, which I deal with first. Given the detailed reasons for and the nature of the delays and the subject matter of this case, condonation is hereby granted.

[2]             The applicant has a written leave policy which provides inter alia for compassionate leave in respect of the death of “immediate family” members, defined in the policy as “husband, wife, grandparents, father, mother, father-in-law, mother-in-law, sister, brother, brother-in-law, sister-in-law, child, grandchildren”. The employee “must provide a copy of the death certificate of that family member, and in certain cases, an employee may be required to provide an affidavit indicating the relationship between the employee and the deceased person”.

[3]             Mr Njilo was dismissed from the employ of the applicant on a charge of misconduct, specifically:

”Dishonesty in that during May 2013, July 2014 and February 2015 you provided false information about your relationship to the deceased which resulted in you receiving compassionate leave payments for which you did not qualify”.

[4]             The leave forms in 2013 and 2014 reflect the deceased as “mother” and the one in 2015 as “son”. Explained in western terms and that of the policy, the “son” was Mr Njilo’s late brother’s son and the “mother/s” had been his late father’s second wife and his aunt.

[5]             The matter went to arbitration whereupon an award was issued in favour of Mr Njilo.

[6]             The arbitrator accepted Mr Njilo’s version, which in broad terms is that he just knew, from a colleague, that one can apply for leave when a family member dies. He had been unaware of the intricacies of the compassionate leave policy; particularly that it did not cover people he regarded in Zulu culture as his “immediate family”, “mother” and “son”. He said in Zulu culture, a man assumes responsibility for his deceased father’s wives and the children of his deceased brother. In any event, he had not hidden the relationship between him and the deceased when he approached his (Zulu speaking) group leaders to apply for leave. He was traditional and would have used cultural names to describe the relationships; e.g. “mamncane” for his father’s wife and so on.

[7]             It bears mention here that it appears from the record that, at least in respect of production line employees such as Mr Njilo, the practice is that the employee approaches his group leader to ask for leave who in turn completes the application form and forwards it to HR for approval, together with the supporting death certificate.

[8]             In summary, the arbitrator found no dishonest intent on the part of Mr Njilo.

[9]             The arbitrator further found that in any event the sanction of dismissal was grossly inappropriate “given the unique circumstances of the case”, Mr Njilo’s length of service at the time (17 years) and his unblemished disciplinary record. There was further no evidence of a genuine breakdown in the trust relationship.

The review

[10]         I find it necessary in this application to reiterate the narrow standard of review. In this regard, the Supreme Court of Appeal, in Herholdt v Nedbank Limited (2013) 34 ILJ 2795 (SCA), has defined with greater clarity, the standard of review:

(i)           It must be established, either that the arbitrator has misconceived the nature of the enquiry, or that he or she arrived at an unreasonable result.

(ii)         For an award to be unreasonable, the arbitrator’s conclusion must be one that a reasonable decision-maker could not reach on the material that was before the arbitrator.

(iii)        Material errors of fact, including errors concerning the weight and relevance to be attached to certain facts, are only of consequence if their effect is to render the outcome unreasonable.

(iv)       If the arbitrator’s reasons provide a reasonable “route” leading towards the conclusions, it must follow that the decision is one that could have been reached (and in fact was) made by a reasonable decision-maker. A review application would, in such circumstances, not succeed.

(v)         Even if there are flaws in the arbitrator’s reasons, a review must still consider whether apart from the arbitrator’s reasons, “the result is one that a reasonable decision-maker could reach in light of the issues and the evidence.

(vi)       A review court is required to examine the merits “in the round” only.

[11]         The Constitutional Court recently reiterated that a review court is not at large to consider and decide the issues afresh. To do so, would constitute a fatal error. [2] A review court considers the record of material that was presented in the arbitration, not for the purpose of determining its own conclusions, but to answer the following questions: Did the arbitrator make any error that represents a departure from the conduct of a reasonable decision-maker? Is any such error “consequential” in the manner described in Herholdt so as to render the outcome unreasonable? Is the ultimate conclusion (that the dismissal was fair) one that could not have been reached by a reasonable decision-maker?

[12]         It bears emphasis in this case that the factual findings of a decision-maker, particularly where these are based on credibility assessments, are, in the absence of demonstrable material misdirection, presumed to be correct.[3] This is more so in a review application.

[13]         The applicant contends that the arbitrator “based her award on matters that occurred to her when she was writing the award, but that the parties had no opportunity to address, in respect of her view on isiZulu cultural norms and beliefs”. This claim has no merit. The matter of cultural norms, as described earlier on, was pertinently raised by Mr Njilo during the leading of evidence. Yes, it seems the arbitrator did expand on the matter in her award, but there is no show in this application (and the award to my eye) that the outcome of the award turned on that. A basic rule in a review application is that it must be demonstrated that the alleged error materially impacted on the arbitrator’s decision; that, but for the error, the outcome would have been different.  

[14]         The next ground of review concerns the arbitrator’s factual findings regarding Mr Njilo’s knowledge of the leave policy and his relationship with his nephew. Here again, other than the bald claim that the arbitrator misdirected herself in assessing the evidence, there is no demonstration of a material misdirection. The award discloses the reasoning of the arbitrator on these matters, the reasoning clearly takes into account the conflicting versions that served before the arbitrator and I see nothing overtly illogical or irrational in the reasoning. In other words, the arbitrator’s reasons provide a reasonable “route” leading towards the conclusion, and it must follow that the decision is one that could have been reached (and in fact was) made by a reasonable decision-maker.

[15]         In any event, the applicant’s case that Mr Njolo was au fait with its compassionate leave policy was based on the weak premise that he had applied for compassionate leave numerous times and a vague suggestion by one witness that he may have seen a copy of the policy on a notice board.

[16]         The leave policy in question comprises some 35 pages, with compassionate leave situated in an obscure section in smaller writing. Not one of the applicant’s four witnesses averred that in some work session or personally Mr Njilo was given a copy of the policy or that its contents were properly explained to him (or employees in general). Given the common knowledge[4] that there are cultural differences where it comes to who is viewed as family, one would have thought that the policy on compassionate leave would have been better published and explained.

[17]         The final ground of review challenges the arbitrator’s finding that the sanction was inappropriate.

[18]         Adjudicating the severity of the misconduct in context and the fairness of the sanction is a power conferred on the arbitrator. It is partly, at least, a value judgment. The choice made by the arbitrator must stand unless it is demonstrable that no reasonable arbitrator could have reached that conclusion.[5]

[19]         In my view, another arbitrator could easily have found that the sanction of dismissal was unfair given the position Mr Njilo occupied (he was not a senior employee), his long service of 17 years and his unblemished disciplinary record and the fact that the evidence did not demonstrate a contrived and indeed devious manipulation by Mr Njilo to achieve compassionate leave. There was also no evidence that objectively the trust relationship was destroyed by Mr Njilo’s conduct.

[20]         In conclusion, it cannot be said on the totality of the evidence that the arbitrator committed any reviewable irregularity in her assessment of the evidence or her conduct of the proceedings, and the award should stand.

Order

[1]         The application is dismissed.

 

B Whitcher

Judge of the Labour Court of South Africa

 

APPEARANCES     

 

FOR APPLICANT:                       Mr S Hansjee of Cox Yeats Attorneys

 

FOR FIRST RESPONDENT:        Mr N Mncube of NUMSA 

 

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