Bestel v Astral Operations & others (LAC Case JA 37/08 Date of Judgment: 16 September 2010)

Principle:

An arbitrator's finding, on the facts, will be considered to be one that 'a reasonable decision-maker could not reach' if the finding is:

  1. unsupported by any evidence;

  2. based on speculation by the commissioner;

  3. entirely disconnected from the evidence;

  4. supported by evidence that is insufficiently reasonable to justify the decision; or

  5. made in ignorance of evidence that was not contradicted.

Facts:

Appellant had been the managing director of the employer’s business known as ‘Meadow Feeds’.  In November 2004 he was charged with the offence of dishonesty, in that he had instructed a subordinate to procure a false report that a sample of a product tested positive for salmonella.  He was found guilty, after an internal disciplinary enquiry, and dismissed.  He challenged the dismissal at the CCMA, where the arbitrator concluded that the dismissal had been substantively unfair and reinstated the appellant.

The employer then applied to the Labour Court to review the award in terms of section 145 of the LRA.  Pillay J set aside the award and replaced it with an award setting aside the CCMA’s determination, which had the effect of reinstating appellant’s dismissal.  The Appellant then appealed to the LAC.

Extract from the judgment:

  1. The applicable test for a review of a decision in terms of section 145 of the LRA has been definitively settled by the Constitutional Court in Sidumo and Another v The Rustenburg Platinum Mines Ltd 2008(2) SA 24(CC) at para 110:

  2. 'To summarise, Carephone held that s 145 of the LRA was suffused by the then constitutional standard that the outcome of an administrative decision should be justifiable in relation to the reasons given for it. The better approach is that s 145 is now suffused by the constitutional standard of reasonableness. That standard is the one explained in Bato Star: Is the decision reached by the commissioner one that a reasonable decision-maker could not reach? Applying it will give effect not only to the constitutional right to fair labour practices, but also to the right to administrative action which is lawful, reasonable and procedurally fair.'

  3. T2) Conscious of the limited scope possessed by the court a quo to review third respondent's award, Mr. Pretorius, who appeared on behalf of first respondent, referred to an article by Anton Myburgh dealing with the scope of the Sidumo test. See A Myburgh 'Sidumo v Rusplats: How the Courts deal with it' (2009) 30 ILJ 1.

  4. Myburgh contends that a commissioner's finding, on the facts, will be considered to be unreasonable if the finding is:

    1. unsupported by any evidence;

    2. based on speculation by the commissioner;

    3. entirely disconnected from the evidence;

    4. supported by evidence that is insufficiently reasonable to justify the decision; or

    5. made in ignorance of evidence that was not contradicted.

  5. In coming to this conclusion, Myburgh cites a dictum of Van Niekerk AJ in Sil Farming CC t/a Wigwam v CCMA (unreported LC Judgment cited by Myburgh at 13):  ‘A commissioner arrives at a decision which no reasonable decision maker could reach if the decision is unsupported by any evidence, or by evidence that is insufficient to reasonably justify the decision arrived at or where the decision maker ignores uncontradicted evidence.

  1. Schwartz Lions over the Throne (1987) at 133 explains that, in the context of a review, a court deals with a test of ‘reasonableness, not the rightness of agency findings of fact.  The question under it is whether the evidence is such that the reasonable person acting reasonably could have reached the decision from the evidence and the inferences’. 

  2. Although the judgment in Sidumo supra superceded the test for review as contained in the decision of this Court in Carephone (Pty) Ltd v Marcus 1999 (3) SA 384 (LAC) at para 37 , the following dictum in the latter judgment is helpful in order to illustrate the nature of the test: 'Is there a rational objective basis justifying the conclusion made by the administrative decision-maker between the material properly available to him and the conclusion he or she eventually arrived at'.

  3. It is important to emphasise, as is exemplified from Carephone, and in Schwartz, supra, that the ultimate principle upon which a review is based is justification for the decision as opposed to it being considered to be correct by the reviewing court; that is whatever this Court might consider to be a better decision is irrelevant to review proceedings as opposed to an appeal. Thus, great care must be taken to ensure that this distinction, however difficult it is to always maintain, is respected.

  4. In the present dispute, Mr. Pretorius submitted that the finding of third respondent was not supported by evidence that could reasonably justify the decision or, alternatively, that the finding was made in ignorance of evidence that remained uncontradicted. In particular, Mr. Pretorius submitted that in his plea and statement the appellant had stated as follows:

  5. 'On Monday, the 1st November 2004 I received a telephone call from Moosa who advised me that there appeared to be a problem with the positive report that we had sent him and that it appeared to have been altered and that I was to confirm that what I sent him was the correct report. I approached Bradford and advised him that Moosa had indicated that we had the wrong report. He confirmed that he had provided me with the wrong report and I advised him to send the correct report to Moosa immediately.'

  6. Accordingly, as at 1st November 2004, appellant knew that the report had been altered.  Notwithstanding appellant’s testimony about when he became aware of the false report, he was forced to concede that his plea statement accurately reflected the time when he gained knowledge of the altered report. 

  7. In Mr. Pretorius view, third respondent had ignored this fact in his decision when he accepted the incorrect evidence of appellant.  In particular, in his evidence in chief, appellant  claimed  that Moosa had never told him what was wrong with the report, whereas under cross-examination Mr. Moosa was asked whether he had indicated to appellant that there was a wrong report and he said ‘I said it is strange a plus has turned to a minus same dates etc’.

  8. On the basis of Bradford’s testimony, together with that of Moosa, Mr Pretorius submitted that it was clear at least by 1 November 2004, that appellant knew that a ‘negative’ had been turned into a ‘positive’ to the detriment of Willowton.  Appellant, on his own version, did not appear to question the nature of the report.  Given testimony that he was a micro manager, this was particularly surprising.  Mr Pretorius submitted that this omission was not surprising when Bradford’s evidence was taken into account.  In his view, it was clear that appellant had told Bradford to find a ‘positive’, after having been told there was no such evidence.  Appellant must have known that Bradford had falsified a ‘positive’, from the ‘negative’ because he had informed appellant accordingly.

  9. In short, third respondent was confronted with two conflicting versions of events as given by Bradford and appellant.  True, there was evidence of Moosa which indicated that appellant knew about the incorrect report as at 1 November 2004.  It does not appear that any inquiry was generated by appellant as to the cause of the incorrect report.  But there is no single reason which can be derived from the record as to why appellant had not immediately questioned the basis of the incorrect report.  Further, there was no compelling evidence as to the commercial justification for generating an incorrect report : in particular  in order to resile from a contract with Willowton.  Yet, that was the only additional evidence which could be produced by Mr Pretorius in order to assail the justification for third respondent’s determination.

  10. This speculation is insufficient to justify a conclusion that third respondent’s findings, on facts supported by the evidence was insufficiently reasonable to justify his decision or made in ignorance of uncontradicted  evidence.  On the Sidumo test for review as I have outlined it, there was no basis by which third respondent’s award should have been set aside.