Fraser Alexander (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others

Fraser Alexander (Pty) Ltd employed Mr Mndeni Dubazane and Mr Titano Shashape as general workers since 2018. Their duties included deposition of tailings on the dam, opening and closing valves, guarding slime deposition, operating barges, and fastening/loosening pipes. They worked in shifts - day shift (6am to 3pm) or night shift (3pm to 6am). On 26 August 2020, during their night shift, a spillage occurred. On 11 September 2020, both employees were charged with gross negligence for neglecting the deposition point while at work. Both employees pleaded guilty at the disciplinary hearing and were dismissed. They then referred an unfair dismissal claim to the CCMA. In May 2020, a CCMA Commissioner found the dismissal substantively unfair and ordered reinstatement. The employer then launched this review application.

• Whether the CCMA Commissioner's arbitration award was reasonable in finding that the dismissal was substantively unfair
• Whether the Commissioner correctly applied his mind to the evidence before him
• Whether the Commissioner misconceived the nature of the rule that was allegedly breached
• Whether the Commissioner ignored material evidence in reaching his decision
• Whether the threshold test in Sidumo for reviewing arbitration awards was met

The review application was upheld. The arbitration award dated 21 May 2021 issued under case number NC2538-20 was reviewed and set aside. The award was substituted with a decision that the dismissal of Messrs. Mndeni Dubazane and Titano Shashape by Fraser Alexander (Pty) Ltd was substantively fair. There was no order as to costs.

A CCMA arbitration award will be unreasonable and subject to review where the Commissioner: (1) misconceives the nature of the rule alleged to have been breached, causing him to focus on irrelevant considerations while ignoring material evidence; (2) fails to properly consider admissions and material evidence presented by the parties; and (3) arrives at a finding that no reasonable decision-maker could reach on the totality of the evidence. Errors of fact by a Commissioner that rise to the level established in Mofokeng - being of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision-maker could reach - will vitiate an arbitration award. The time at which consequences of misconduct manifest is not determinative where the employees were aware of and failed to address the problem during their shift.

The Court reiterated the principle from Zungu v Premier of Province of KwaZulu-Natal that the rule that costs follow the result does not apply in Labour Court matters. Instead, costs orders in the Labour Court must be made in accordance with section 162 of the LRA, with due regard to legal requirements and fairness. The norm is that costs orders should not be made unless specific requirements are met, as the Court should strike a fair balance between not unduly discouraging parties from approaching the Labour Court while also not allowing frivolous cases. The Court also noted procedural irregularity in that the Third Respondent's answering affidavit was filed prematurely before delivery of the Applicant's supplementary affidavit, but nonetheless considered the matter as opposed given legal representation.

This case demonstrates the application of the Sidumo reasonableness test in reviewing CCMA arbitration awards. It illustrates that while mere errors of fact or law may not be sufficient to set aside an award, errors that demonstrate a failure to apply the mind, reliance on irrelevant considerations, or ignoring material factors can render an award unreasonable. The case emphasizes that commissioners must properly conceive the nature of workplace rules and consider all material evidence before them. It also confirms that when the record is complete, the Labour Court can substitute its own decision rather than remitting matters for rehearing. The judgment reinforces the principle from Zungu that costs do not automatically follow the result in labour matters, with costs orders only being made in accordance with the requirements of law and fairness.