Minister of Home Affairs v Public Service Association obo GR Ngobeni

Mr Gilbert Ngobeni was employed by the Department of Home Affairs at its Refugee Office in Marabastad, Pretoria, initially as a Refugee Reception Officer, then promoted to Refugee Status Determination Officer, and ultimately acting as Refugee Reception Manager for more than five years. He was dismissed for two counts of gross negligence: extending the asylum seeker temporary permits of Mr Geofrey Iga and Mr Temesgen Adebo despite the Refugee Appeal Board (RAB) having rejected their asylum applications several months prior. In respect of Mr Iga, the RAB rejected asylum on 13 January 2014, but Mr Ngobeni extended his temporary permit on 22 May 2014. In respect of Mr Adebo, the RAB rejected asylum on 13 February 2015, but Mr Ngobeni extended his temporary permit on 6 May 2015. The employer alleged that the National Immigration Information System (NIIS) reflected that the RAB had rendered decisions, and that file instructions from Ms Sarie Brits (Head of Administration) indicated the RAB decisions had been made. The employer contended Mr Ngobeni improperly deactivated these file instructions. Mr Ngobeni's defense was that he received stamped notes from the appeals clerk instructing him to extend the permits, that these notes were routinely destroyed, and that the NIIS system was problematic and did not always reflect file instructions properly. Following a disciplinary hearing and dismissal, Mr Ngobeni referred an unfair dismissal dispute to arbitration.

• Whether the commissioner properly applied his mind to all material evidence before him
• Whether the commissioner's evaluation of contradictory witness testimony was reasonable
• Whether the commissioner properly assessed the credibility, reliability and probabilities of the evidence
• Whether the arbitration award was one that no reasonable decision-maker could reach on the evidence
• Whether procedural irregularities in the arbitration rendered the outcome unreasonable
• Whether the commissioner's reliance on seniority of witnesses rather than proper evaluation criteria constituted a material misdirection

The arbitration award issued by the third respondent on 1 October 2018 under case reference GPBC1349/2017 was reviewed and set aside. The unfair dismissal dispute was remitted back to the General Public Services Sector Bargaining Council for rehearing de novo before a different commissioner. The applicant was ordered to pay the costs relating to its condonation application. No costs order was made in respect of the review application itself.

A commissioner must apply proper tests of credibility, reliability and probabilities when evaluating conflicting evidence, and cannot resolve disputes by simply accepting the evidence of more senior witnesses over junior witnesses. Failure to apply one's mind to material evidence, particularly where a party does not actively dispute key facts (such as the existence of file instructions), constitutes a failure to afford parties a fair trial and renders the outcome unreasonable under the Sidumo test. Where a commissioner relies on an improper basis for resolving factual disputes (such as seniority rather than proper evidentiary evaluation), and this has a distorting effect on the outcome, the award will be set aside as one no reasonable decision-maker could reach. An arbitrator must consider all material issues, including whether a party's version is probable in the circumstances, and whether the evidence supports the ultimate finding.

The Court made observations about the challenges of determining review matters on incomplete records, noting that large portions of witness testimony were inaudible, one witness's testimony ended at the start of cross-examination, and another witness's testimony was completely absent from the record despite the commissioner relying heavily on it. The Court also commented on the delay in finalizing the matter, noting it had taken more than six years partly due to the applicant's late filing of the review application some five weeks out of time. The Court observed that such delays are antithetical to the expeditious resolution of labour disputes, which is one of the primary objects of the Labour Relations Act. The Court also noted, without deciding, that the physical separation of the RAB and Refugee Office locations, and the testimony about the routing of clients, may have impacted the probabilities but this was not explored during cross-examination.

This case reinforces fundamental principles governing review of arbitration awards in South African labour law. It emphasizes that commissioners must apply their minds to all material evidence and cannot resolve credibility disputes by simply accepting evidence of more senior witnesses without proper evaluation based on credibility, reliability and probabilities. The case demonstrates that failure to apply proper evidentiary evaluation methods constitutes a material misdirection with a distorting effect on the outcome. It illustrates the continued application of the Sidumo reasonableness test and the principles from Tao Ying that failure to apply one's mind to material issues denies parties a fair trial and renders an outcome unreasonable. The judgment also highlights the practical difficulties of conducting reviews on incomplete records and the importance of complete transcripts. On costs, it applies the Constitutional Court's guidance in Zungu regarding the exercise of discretion in costs orders in labour matters, balancing access to justice against discouraging unmeritorious litigation.