The Applicant, South African Airways (SOC) Ltd (hereinafter referred to as “SAA”), the employer of the Third Respondent Matebogo Thipe (hereinafter referred to as “Thipe”) sought a review of an arbitration award granted by the Commission for Conciliation, Mediation and Arbitration (the “CCMA”) in favour of Thipe in 2014.
Thipe had been dismissed by SAA in or during 2014 based on the following charges:
- Poor timekeeping for the period 23 December 2013 to 28 January 2014 and not working her official hours, missing some 25 out of 36 days during her working cycle over this period;
- being absent for 3 days in January 2014 without pre-approved leave;
- fraudulent timekeeping for indicating that she was at work when she was not;
- failing to obey an instruction to populate an induction register; and
- failing to follow an instruction to issue invitations for an induction program.
At no stage was Thipe issued a verbal or written warning in respect of her alleged misconduct.
Thipe referred her dismissal to the CCMA, alleging that same was unfair. The arbitrator subsequently determined that SAA had failed to prove charges 2 to 5 as listed above, whilst charge 1 was only “partially” proved. Accordingly, an arbitral award was granted in Thipe’s favour whereby it was held that her conduct did not warrant a dismissal in terms of SAA’s code, or in general, and was, therefore, substantively unfair; resulting in her reinstatement within the company’s (SAA’s) employ. The arbitrator additionally stated that Thipe be issued with a verbal warning in respect of charge 1.
Basis of the Review
SAA referred the arbitrator’s ruling to the Labour Court (the “Court”) for review in terms of section 145 of the Labour Relations Act 66 of 1995 (the “LRA”), contending that the arbitrator had conducted himself unreasonably in determining his findings.
SAA’s Main Grounds of Review
SAA sought review in regards to the arbitrator’s failure to consider, what it contended to be, glaringly obvious evidence which exposed Thipe’s poor timekeeping as well as her absenteeism, that being turnstile records as well as her timesheet which was seemingly signed off by her supervisor.
The Court considered the test for reasonableness in this regard according to judicial precedent from the cases of Herholdt and Gold Fields Mining, wherein the Supreme Court of Appeal (in the former matter) emphasised that an arbitral award “will only be unreasonable if it is one that a reasonable arbitrator could not reach” based on the material facts before him or her. Similarly, the Labour Appeal Court in the Gold Fields Mining case expressed that the test for reasonableness pivots on “whether the decision that the arbitrator arrived at is one that falls in a band of decisions to which a reasonable decision-maker could come on the available material.”
Further, for a defect in the conduct of proceedings to have amounted to a gross irregularity as contemplated by section 145(2)(a)(ii) of the LRA, the arbitrator must have misconstrued the nature of the enquiry or arrived at an unreasonable result.
 Herholdt v Nedbank Ltd (701/2012) ZASCA.
 Gold Fields Mining South Africa (Pty) Ltd v Commission for Conciliation Mediation and Arbitration (JA2/2012) ZALAC.
In respect of charge 1 above, the Court held that the Arbitrator had failed to adequately consider incontrovertible evidence demonstrating Thipe’s dissatisfactory attendance record, being documentation accurately reflecting the number of working days Thipe had been absent. However, the remaining grounds upon which SAA dismissed Thipe, whilst contended by SAA to be sufficient for the purposes of termination, were merely presented to the arbitrator without actual or sufficient evidential substantiation therefor.
The Court held further that, despite Thipe’s attendance record for December 2013 and January 2014 being far from exemplary; it would not be unreasonable for an arbitrator to conclude that SAA’s code of conduct enjoined the employer to warn an employee before resorting to more serious disciplinary action. Furthermore, even if the arbitrator had regarded Thipe’s actual record of attendance in the more serious light it deserved, a reasonable arbitrator might still have concluded that it did not warrant dismissal in the absence of any prior warnings.
In light of the above, the Court held that, notwithstanding the existence of flaws in the arbitrator’s reasoning in certain instances when determining his award, and even if some of his conclusions required adjustments, his ultimate conclusion that dismissal was not an appropriate sanction did not constitute an award that a reasonable arbitrator would not have arrived at based on the evidence presented.
This case highlights the manner in which reviews of arbitral awards in terms of section 145 of the LRA are conducted. Even in instances where an arbitrator fails to apply his/her mind in a satisfactory manner, such failure must be considered in conjunction with whether or not the arbitrator has undertaken an erroneous enquiry, alternatively, undertaken the enquiry in the wrong manner or, further alternatively, arrived at an unreasonable conclusion in light of the evidence presented before him or her in order to determine whether an arbitrator has acted unreasonably.
Written by Divina Naidoo, Candidate Attorney and supervised by Jarryd Spargo, Candidate Attorney.