Bongi Errol Mthimunye v The Education Labour Relations Council and Others

The Applicant, a lecturer employed by Central Johannesburg TVET College since April 2011, discovered in January 2021 that he had not been paid Integrated Quality Management System (IQMS) benefits since 2013, despite other employees receiving them. The IQMS is a performance management and development appraisal system established by Collective Agreement No. 5 of 2005 that provides for salary and grade progression for educators who comply with specified processes. The Applicant submitted claims for outstanding IQMS benefits from 2013 onwards as directed by the employer in November 2021. The Respondent refused payment, alleging the Applicant failed to comply with the required processes under the Collective Agreement. The Applicant referred an unfair labour practice dispute to the Education Labour Relations Council (ELRC). The Commissioner dismissed the dispute, finding that the Applicant had not submitted the required applications and documentation for the relevant years. The Applicant then launched this review application, alleging multiple gross irregularities in the arbitration proceedings.

• Whether the Commissioner committed gross irregularities in the conduct of the arbitration proceedings warranting review under sections 145 and/or 158(1)(g) of the Labour Relations Act
• Whether the Commissioner failed to apply his mind to material facts and evidence presented
• Whether the Commissioner properly resolved disputes of fact between the parties
• Whether the Commissioner properly conducted an enquiry into whether the Respondent committed an unfair labour practice in terms of section 186(2)(a) of the LRA relating to the provision of benefits
• Whether the Commissioner properly assessed the credibility and reliability of witnesses and the probabilities of competing versions

The arbitration award issued by the Second Respondent (Commissioner Mark Hawyes) dated 10 February 2022 under case number ELRC647/20/21GP was reviewed and set aside. The matter was referred back to the Education Labour Relations Council for a hearing de novo before another commissioner. There was no order as to costs.

A commissioner conducting an arbitration under the LRA commits a gross irregularity warranting review where the commissioner: (1) fails to assess the credibility and reliability of witnesses and the inherent probabilities of competing versions when faced with disputes of fact; (2) fails to have regard to material facts placed before them; (3) adopts inconsistent reasoning by declining to assess whether an employer complied with governing processes while simultaneously finding against an employee for alleged non-compliance; and (4) fails to properly evaluate the conduct of the employer when determining whether an unfair labour practice has been committed under section 186(2)(a) of the LRA. Where the award may have been different had the commissioner properly acquitted themselves, the irregularity is sufficiently material to warrant setting aside the award. The test is whether the result may (not would) have been different - this applies to process-related unreasonableness that equates to latent gross irregularity.

The Court observed that the deficiencies in the award under review - comprising a detailed summary of evidence followed by truncated analysis with gratuitous remarks and a conclusion bearing no logical relationship to what preceded it - "permeate many of the awards that are the subject of review proceedings" in the Labour Court. The Court noted that commissioners appear "wholly incapable of dealing with disputes of fact" and that such awards lack "the essential ingredients of an assessment of the credibility of the witnesses, a consideration of the inherent probability or improbability of the version that is proffered by the witnesses, and an assessment of the probabilities of the irreconcilable versions." The Court emphasized that while the LRA requires commissioners to conduct arbitrations in a manner they deem appropriate to determine disputes fairly and quickly, this does not exempt them from properly resolving disputes of fact. The judgment also highlights practical difficulties created when arbitration transcripts are incomplete, placing review courts in a difficult position to assess the merits even where they might otherwise be inclined to substitute an award.

This judgment reinforces the fundamental obligations of commissioners conducting arbitrations in labour disputes, particularly in unfair labour practice matters involving benefits. It emphasizes that commissioners must properly assess witness credibility and reliability, resolve disputes of fact, and consider all material evidence - particularly the conduct of the employer when determining whether an unfair labour practice has been committed under section 186(2)(a) of the LRA. The judgment confirms that failure to properly analyze evidence and resolve factual disputes constitutes a gross irregularity warranting review under section 145 of the LRA, applying the principles from Sasol Mining v Nqgeleni. It demonstrates that commissioners cannot avoid addressing whether an employer complied with applicable collective agreements while simultaneously faulting employees for non-compliance. The case also illustrates the review courts' approach when records are incomplete - remittal rather than substitution is appropriate where credibility findings and proper factual analysis were not undertaken.