REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Not reportable
Case no D840/2013
In the matter between:
KING’S REST CONTAINER PARK				Applicant
and
P. NONDALA							First Respondent
COMMISSION FOR CONCILIATION MEDIATION AND
ARBITRATION							Second Respondent
S. T. MABASO							Third Respondent
Heard:		22 January 2015
Delivered:		7 May 2015
Summary:	– Review of arbitration award. Commissioner misconstruing evidence. In the result, the award is one that a reasonable decision-maker would not make. 
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JUDGMENT
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PATHER AJ
Introduction 
[1]	This is an unopposed application to review and set aside the arbitration award issued by the First Respondent as a commissioner of the Second Respondent. She had found that the dismissal of the Third Respondent was substantively unfair although procedurally fair. The Commissioner ordered that the Third Respondent be re-instated with effect from 4 October 2012 and that the Applicant pay to him, the Third Respondent the sum of R22 154-10 within 14 days of receiving the award.
[2]	At the arbitration hearing held on 25 January 2013, in limine, the Applicant’s then representative, Mr Friel, applied for the First Respondent’s recusal on the grounds that a previous Award of hers had been taken on review and was at the time pending in the Labour Court.
[3]	The Applicant has also applied for the late filing of the Review Application to be condoned. The Applicant became aware of the arbitration award on 25 February 2013. The Review Application to the Labour Court ought therefore to have been submitted by 8 April 2013. However, the Review Application having being filed on 30 October 2013, was some 200 days late.
[4]	The Applicant’s explanation for the delay is that following advice from the CCMA, it applied for a rescission of what was regarded as being a ‘default award’ issued by the Commissioner in its absence on 25 January 2013. A ruling refusing a rescission of the award was issued on 23 May 2013. The Applicant was notified of the ruling on 30 May 2013. The Applicant ‘later’ learnt that it had had a right to apply for a review of the award, rather than to have applied for rescission thereof. It also changed its attorneys twice during the period, resulting in further delays.
[5]	The period of delay is not insignificant. The papers do, however, bear evidence of several attorneys having had a hand in the Review Application. In weighing the period of delay against the prejudice which the Applicant may suffer if a proper ventilation of the dispute is not allowed to take place, considering the Court’s finding later in this judgment, the application for condonation of the late filing of the Review Application is granted.
Background facts 
[6]	The Applicant is Kings Rest Container Park (Pty) Limited (“Applicant”).
[7]	The First Respondent is Commissioner P Nondala, (“Commissioner”), as commissioner of the Second Respondent.
[8]	The Second Respondent is the Commission for Conciliation, Mediation and Arbitration, (“CCMA”).
[9]	The Third Respondent is Mr S T Mabaso, who had been employed as an artisan by the Applicant since August 2008 and earned some R6 000,00 per month. 
[10]	On 4 October 2012, the Third Respondent appeared before a disciplinary enquiry having been charged on 1 October 2012, with misconduct relating to abuse of sick leave and failing to ‘timeously report his absence including his intended period of absence’ for the period 25 September 2012 to 28 September 2012. A survey of the evidence led at the arbitration hearing indicates that he could not recall the details and dates of his absence.
[11]	The Applicant’s evidence is that as at April 2012, the Third Respondent had taken 53 days of sick leave since the date of his engagement. One of his complaints was lumbago for which the Applicant had, on the advice of the Third Respondent’s chiropractor, Dr A Docrat, purchased a lumbar belt which he, the Third Respondent was required to wear at all times. The cost of the lumbar belt had been deducted from the Third Respondent’s salary over time. The lumbar belt would enable the wearer, the Third Respondent to maintain a straight back while using it, presumably so as to minimise pain to the lumbar region caused by bending the back.
[12]	The Third Respondent was absent between 25 and 26 September 2012 for which period he had submitted a medical certificate. He did not return to work as expected on Thursday 27 September 2012, instead returning on Monday 1 October 2012. A medical certificate covering the additional days of his absence, namely 27 and 28 September 2012 was submitted on his return to work. The Third Respondent stated that one of the reasons for his extended absence was his back problem. He had not however, been wearing the lumbar belt. He had also failed to comply with the Applicant’s rule that it be informed of his absence and the date of his expected return so that it could plan its business accordingly. He had simply stayed away, not having informed the Applicant on the day that he was expected to return, that is 27 September 2012, of the need for any further absence. The breach of the Applicant’s rule was regarded as a dismissible offence in view of the Third Respondent’s position as an artisan. The Third Respondent was dismissed, as stated on 4 October 2012.
[13]	The Third Respondent, aggrieved at the outcome of the disciplinary enquiry, referred an unfair dismissal dispute to the CCMA. At the subsequent arbitration hearing, the Commissioner refused the application for recusal. The record reflects that after handing down her ruling in respect of the application for her recusal, the Commissioner requested Friel to leave the arbitration. She cited as her reasons that he did not have the necessary locus standi to represent the Applicant as he, Friel was a labour consultant and that the Applicant, having received the Notice of Arbitration more than two months prior to the arbitration hearing on 25 January 2013, had had ample opportunity to have objected to her appointment as Commissioner. 
[14]	Rule 25 of the CCMA Rules provides that:
(b)	In any arbitration proceedings, a party to the dispute may appear in person or be represented only by: 
1)	a legal practitioner ; 
2)	a director or employee of that party and if a close corporation also a member thereof; or 
3)	any member , office bearer or official of that party's registered trade union or registered employer's organisation. 
[15]	Having ruled that Friel did not fall within one of the categories allowed in terms of the Rules, to represent a party at arbitration, the Commissioner requested that he leave the arbitration hearing. Before withdrawing from the proceedings and following the Commissioner’s further ruling, Friel, clearly addressing a member of the Applicant party, presumably Ms T E Morrison, had the following to say:
‘I’ve been excused. I don’t know whether you want to carry on, Tony, or whether we go back to the Labour Court and take this on review again.’
The Arbitration proceedings 
[16]	The record reflects that following a disrespectful and unfair attack on the Commissioner’s integrity, the Applicant party withdrew from the arbitration proceedings. This despite the Commissioner’s statement that she would proceed with the matter in their absence. 
[17]	The Third Respondent was therefore the only witness at the arbitration hearing. He testified that he was dismissed after the Applicant had accused him of having abused his sick leave. The Applicant had tried to contact him. He had had a doctor’s note covering his illness. Furthermore, the Applicant had been aware of his ‘illness’. He could not however, recall how many days he had been absent from work. The medical certificate or sick note was not in his possession as it had previously been handed to the Applicant. The Third Respondent testified further that he had been booked off sick on two previous occasions, and had submitted medical certificates for those days. He was not aware however, of the Applicant’s policy on sick leave or the abuse of it.
[18]	The Third Respondent denied that he had abused the sick leave. At this point, his Union representative, Mr van Rooyen submitted a bundle of documents. Responding to the Commissioner’s questions regarding the procedure that was followed before the dismissal, the Third Respondent repeated that the Applicant had been aware of his condition, that he always had a problem with his back, presumably, the lumbago, and that each time he took sick leave, he had submitted a medical certificate. 
Grounds of Review 
[19]	These are set out at paragraph 22 of the Founding Affidavit of Mr M F S Sadeck, the Applicant’s Depot Manager. In addition, according to the Applicant’s Heads of Argument, the three issues that needed to be determined in this review are:
(a)	whether the Commissioner when she refused to recuse herself;
(b)	whether her refusal to allow Friel, a member of an employers’ organisation, to represent the Applicant;
(c)	whether her failure to advise the Applicants of their rights after the ruling to exclude Friel,
constituted misconduct which is unreasonable.
[20]	Mr Prior on behalf of the Applicant argued that in respect of the first issue, the Commissioner had entered the fray. It was submitted that in the unreported case of Kings Rest Container Park (Pty) Ltd v Phumla Nondla N O & Others, Case No. D773/12, the court found that after the Commissioner had ruled that Friel was not able to represent the Applicant, the Commissioner was obliged to allow the Applicant time to cool off and to advise it of its rights. Given the previous award which the Labour Court had overturned, the Applicant’s apprehension of bias was reasonable argued Mr Prior.
[21]	At the time of the arbitration hearing, the subject of this review application on 25 January 2013, the case of D773/12 cited above was pending. Judgment in that case, namely D773/12 was handed down on 6 September 2013 – some 7 months after the arbitration hearing in casu, and that many months before the unfortunate and unprofessional argument which Friel had with the Commissioner. In my view, she cannot be held to a matter that had still to be decided. This is akin to expecting the Commissioner to be able to foretell the future. Therefore this argument, namely that in view of the previous case involving Friel on behalf of the same Applicant on the one hand and the Commissioner on the other, her failure to allow the Applicant party time to gather their thoughts and to advise it of its rights, gave rise to a reasonable apprehension of bias, is without merit. In any event, in her ruling refusing the application for her recusal, the Commission’s reasons clearly indicate that having applied her mind to Friel’s application she concluded that no justification for her recusal existed. Her reasoning and subsequent ruling on the issue was in my view, reasonable.
[22]	In respect of whether her exclusion of Friel constituted misconduct which was unreasonable, the record indicates that it was Friel who described himself as a labour consultant on the Attendance Register of the arbitration proceedings. At lines 8 and 9, page 2 of the record, Friel, addressing the Commissioner on the point in limine, had the following words to say:
‘In support of this, Ms Mandala has refused to allow me to represent the respondent who is a fellow member of an employers’ organisation simply because I am a labour law consultant’ (sic) (emphasis added) 
[23]	Even in her ruling, reflected on page 5 at lines 6 and 7, the Commissioner states once more,
‘It is common cause in this case as it has not been disputed that 
Mr J M Friel is a labour consultant… ‘
In the same paragraph of the record, lines 15 to 17, alluding to the previous case involving Friel on behalf of the same Applicant, the Commissioner concluded that no justification existed for the Applicant’s submission that she would be biased towards it if she were to preside over the matter. Further on, at page 6, lines 23 and 24, Friel stated:
‘You’re denying the respondent the representation by a fellow member of an employers’ organisation.’ (emphasis added)
It is noted that Friel did not use the word “registered” in relation to the employers’ organisation, neither did he during his submissions at the arbitration hearing, name the employers’ organisation to which he and the Applicant allegedly belonged.
[24]	In the absence of information regarding the employers’ organisation of which he was a member, and not having had it identified, the Commissioner cannot be said to have misconducted herself or acted unreasonably in excluding Friel. As she correctly pointed out, the Applicant had been notified of the details of the arbitration and the fact that she was appointed to arbitrate the dispute, some 2 months prior to the hearing. In view of the pending matter in the Labour Court, and to avoid a similar situation as had occurred then, such as having their representative excluded on the basis of his lack of locus standi, the Applicant ought to have been better prepared for that eventuality. Friel could have presented his credentials immediately the matter was called. That he failed to do so, but began his submissions with an application for the Commissioner’s recusal, can only mean that he did not have any form of proof of membership of a recognised employer’s organisation with him then. In the circumstances, I do not agree with Mr Prior’s submission that the Commissioner ought to have examined Friel’s right to represent the Applicant. Friel simply failed to establish a prima facie right to do so. The Commissioner correctly excluded him from representing the Applicant at the arbitration hearing. During argument in this court, Mr Prior was unable to advise what the acronym GDPEO, as vaguely referred to in the Founding Affidavit, signified.
[25]	Finally, did the Commissioner’s failure to advise the Applicant of its rights, after excluding Friel, amount to misconduct which is unreasonable? In this regard, as analysed earlier in this judgment, on page 7 of the record at lines 13 to 15, Friel states:
‘I’ve been excused. I don’t know whether you want to carry on Tony, or whether we go back to the Labour Court and take this on review again.’
[26]	It is clear from the passage that not only Friel, but Morrison herself was aware of the Applicant’s right to remain and fully participate in the proceedings. Furthermore, it seems that neither had learnt any lesson from their previous encounter with the Commissioner who was simply doing what she had been trained to do, namely, apply the law, including observing the CCMA Rules for the Conduct of Proceedings. In her award, the Commissioner graphically describes the unfolding drama after she had handed down her ruling excluding Friel from representing the Applicant. Her words: ‘Both Ms Morrison and Mr Sadeck thereafter stormed out of the hearing room in tandem with Mr Friel thereby effectively abandoning the arbitration hearing as they did during the arbitration proceedings held in respect of the matter referred to in paragraph four above’. In my view, after what was clearly an attempt at undermining her integrity and their display of utter disrespect to her as Commissioner, it would be unreasonable to have expected her to explain their rights to them as the Applicant party – rights of which they were aware. If they had not been aware of the Applicant’s rights, it would not have been necessary for Friel to ask of Morrison whether she wanted to continue in his absence.
[27]	Mr Prior referred to the seminal judgments of the courts in his Heads of Argument. I will confine myself to one, namely, that of Gold Fields Mining SA (Pty) (Ltd) (Kloof Gold Mine) v CCMA and Others [2014] 1 BLLR 20 (LAC) at paragraph 16 in which the test for review was set out thus:
‘In short: A review 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 which was reasonable to justify the decisions he or she arrived at.’
[28]	In applying this test to the Commissioner’s conduct of the arbitration proceedings, no misconduct in respect of any of the three issues identified in paragraph [19] have been found. Based on Friel’s arguments presented on that day, the Commissioner acted properly and her decisions were reasonable.
[29]	But what of her final decision in finding that the Third Respondent had been unfairly dismissed? A survey of the evidence before the Commissioner reveals that no medical certificate by a properly qualified medical practitioner had been placed before her. She was at pains to warn the Third Respondent of the importance for him to be truthful. Perhaps the Third Respondent was not aware of the difference, but the only documents pertaining to his condition are a letter dated 10 December 2011 from Dr A Docrat, and what is clearly a follow-up mail from Morrison reporting on her discussion with the ‘doctor’ and suggestions for the management of the Third Respondent’s condition while at work. 
[30]	In her award the Commissioner, at paragraph 14, summarises the Third Respondent’s evidence as being that he ‘went back to his physician’ on September 28. While this may have been a consequence of the Zulu/English translation during the arbitration hearing, it would not be unreasonable to surmise that the ‘physician’ to whom the Third Respondent returned was Dr Docrat, as his absence from work was occasioned by the usual ‘back problem’ with which he apparently suffered, and it was this health professional who had been treating the condition since 2006. According to The New Shorter Oxford English Dictionary, Vol 2, 1993 (Oxford University Press) a physician is ‘1. A person who practices medicine, esp non-surgical medicine; a specialist in medical diagnosis and treatment; specialist one with a legal qualification to practise.’ An examination of Dr Docrat’s qualifications on his letterhead, impressive as they are, do not indicate the existence of an MB ChB qualification necessary for practice as a medical officer in this country. There is no indication that Dr Docrat was authorised as an alternate or traditional healer to issue medical certificates. The practice is that only medical officers and certain classes of traditional healers, duly registered, may book an employee off work on the grounds of illness. In my view, Dr Docrat’s advice to the Applicant that the Third Respondent was not allowed to do certain duties at work, coupled with his recommendation that he, the Third Respondent wear some form of support, is insufficient to lead to a change in working conditions. Only a full and proper medical examination by qualified medical officers can, in my view, determine whether an employee should be released from his normal duties and be assigned light duties. Although she had considered the principal issue before her, in evaluating the evidence, the Commissioner clearly held the view that Dr Docrat was qualified as a medical officer to issue certificates confirming an employee’s medical condition which prevented him from attending work. This in turn led to the Commissioner’s final decision being one which in my view a reasonable decision-maker could not have reached, given the incorrect evidentiary weight attached to the correspondence about the Third Respondent’s alleged condition.
Order
[31]	The Commissioner’s decision being one which a reasonable decision-maker could not reach, it is ordered that her award is set aside and the matter is referred back to the CCMA to be heard by another Commissioner other than the First Respondent.
[32]	In the interests of fairness and equity, there is no order as to costs. 

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S Pather
Acting judge of the Labour Court of South Africa

APPEARANCES: 
For the Applicant:		Mr A J Prior (Prior and Prior Attorneys)
For the Respondents:	No appearances