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[2020] ZALAC 28
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WBHO Construction (Pty) Ltd v Hlatshwayo N.O and Others (JA66/2018) [2020] ZALAC 28; (2020) 41 ILJ 2144 (LAC); [2020] 12 BLLR 1238 (LAC) (29 May 2020)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA66/2018
In the matter between
:
WBHO CONSTRUCTION
(PTY) LTD Appellant
and
THEMBA HLATSHWAYO
N.O.
First Respondent
COMMISSIONER FOR
CONCILIATION, MEDIATION
AND ARBITRATION
Second
Respondent
NUM obo MVELASE &
OTHERS
Third
Respondent
Heard:
5 March 2020
Delivered:
29 May 2020
Summary:
Coram: Davis JA,
Sutherland JA and Murphy AJA
______________________________________________________________________
JUDGMENT
SUTHERLAND JA
Introduction
[1]
The appellant, WBHO, a construction business, dismissed 41 of its
workers, the respondents,
on a charge of:
‘
Intimidation
of subcontractors and Management and/or engaging in undesirable
activities leading to the shut-down of the site on
14 September
2013.’
[1]
[2]
The workers referred a dispute about the fairness of the dismissal to
the Commission
for Conciliation, Mediation and Arbitration (CCMA). A
very poorly conducted hearing endured for 12 days. More shall be said
about
that hereafter. The Commissioner concluded that no case of
intimidation
was proven. Upon that premise, the relief ordered
was reinstatement with full retrospectivity to the date of
dismissal.
[3]
The appellant sought to review the award. The Labour Court concluded
that the Commissioner
had committed irregularities in the evaluation
of the evidence of such a magnitude that the there was a distorting
effect on the
outcome, applying the dictum in
Head
of Department of Education v Mofokeng & others
[2]
per
Murphy AJA at [32] - [33]
[3]
.
The award was therefore unreasonable, in the sense contemplated by
Sidumo,
[4]
and
it was set aside.
[4]
The Labour Court took the view that a case of intimidation had indeed
been proven,
albeit on a lesser scale than that alleged by the
appellant. Axiomatically, this finding turned the award on its head:
whereas
an exoneration of the workers on the charge of misconduct
meant there was no question of a sanction arising for consideration
by
the Commissioner, on a finding of guilt, the Labour Court was
obliged to consider what an appropriate sanction should be. Upon an
examination of the surrounding circumstances, the Labour Court
concluded that there were mitigating factors present that, in its
view, excluded dismissal as an appropriate sanction. As a result, the
order made by the Labour Court was reinstatement from the
date of the
award. This outcome meant,
de facto
, a forfeiture of about one
year’s wages.
[5]
There is no cross-appeal.
[6]
The issues that arise in the appeal are these:
6.1
Ought the finding of the scale of
misconduct by the workers have been broader than that held by the
Labour Court;
6.2
On either the narrower factual basis as
held by the Labour Court, or on the broader basis as alleged by the
appellant, is the sanction
of:
6.2.1
dismissal appropriate, or
6.2.2
is a lesser sanction appropriate, eg: no
back pay (for the period between the date of the dismissal and the
date of the Award: 12
months).
[7]
It is useful at the outset of this judgment to foreshadow certain
aspects which are
addressed hereafter:
7.1
Both the Commissioner and the Labour Court
overlooked in their analysis of the evidence the scope of the charge
which formed the
rationale for the dismissal. The charge, as cited,
is not limited to intimidation
per se
,
but extends to conduct which brought the site to a standstill, a
common cause fact. In this regard, the Commissioner asked the
wrong
question and the Labour Court has not held the Commissioner
accountable for that irregularity.
7.2
The inquiry into mitigating circumstances
conducted by the Labour Court is, in my view, flawed in three
respects: first, the consequences
to the appellant are completely
ignored and thus no balance of interests was undertaken; second, the
gravity of the misconduct
of which the workers are guilty was
inappropriately appreciated and inadequate weight attached thereto,
and third, the factors
said by the Labour Court to be mitigating are
either unconvincing on their own terms or are premised on factual
findings by the
Commissioner which were wrongly held by the Labour
Court not to have been unreasonable.
The relevant facts
[8]
This account traces chronologically the events that the evidence
discloses. Much of
the critical evidence was not challenged in
cross-examination. Where facts are in dispute that is indicated. It
is also necessary
to allude to the deficiencies of the record. Some
evidence was missing from the transcript and not all was
reconstructed. The notes
of the Commissioner of some evidence were
included in the record. In certain respects, the only account of the
evidence was in
the award itself. The Labour Court correctly took a
pragmatic approach and dealt with the review on the incomplete record
with
the endorsement of both parties to do so.
[9]
A three-week protected construction industry strike ended on Thursday
12 September
2013. The strike was not peaceful. The appellant had
needed to procure an interdict against interference by the strikers
with ongoing
work at the site situated at Lynnwood Bridge, Pretoria.
Attempts to continue work during the strike were hampered by
sub-contractors
being intimidated to leave the site. As a result,
work proceeded intermittently. Ordinarily, in the undertaking of a
construction
project, the appellant deployed its own workforce
directly on the structural aspects of the construction; in the main,
the other
aspects of the project were subcontracted to specialist
artisans: eg, brickwork, plastering etc. Because of the strike,
certain
subcontractors were engaged to do some structural work too, a
category of work usually undertaken by the WBHO workers.
[10]
Kotze, the site manager, was informed only on the morning of Friday
13 September 2013 that the
strike had ended. No evidence was adduced
about the terms upon which the strike was ended.
[11]
The striking workers returned to the site about midday on that
Friday. The reason why the workers
did not arrive at the usual time
of 07h00 is explained by their transport arrangements. The workers
all lived in a WBHO hostel
in Germiston; the site was in Menlyn,
Pretoria some 50 km or so distant. They were bussed to and from the
site in company transport.
However, during the strike, the busses had
been removed from the vicinity of the hostel and the drivers were, of
necessity, obliged
to fetch the busses and then proceed to the hostel
to collect them.
[12]
On site were numerous subcontractors who had worked or attempted to
work throughout the strike.
Their number was estimated, variously, to
be between 50 – 110 persons employed by several firms. (Exactly
how many individuals
were on the site early on the crucial Saturday
morning, before the site was closed down by the workers, is unclear.)
[13]
The workers did not actually commence any work until 12h45, i.e.
after the lunch break. What
work they actually did, if any, was
unexplored in the evidence. They left at 16h30. This was an early
departure; a routine daily
overtime period to 17h00 was supposed to
have been worked by the workers. At least some subcontractors, if not
all, were forced
to vacate the site at that time too. In particular,
Faria, a plastering subcontractor was told by his crewmen that the
workers
had said that they were not wanted there. Some subcontractors
returned to the workplace after the workers left the site. These
events of Friday formed no part of the charges
per se
, but,
plainly, are pertinent to divining the state of mind of the
workforce, an aspect addressed hereafter.
[14]
Kotze was absent from the site when the workers arrived. He had to
attend a meeting in Bryanston,
Johannesburg. While travelling to
Bryanston, by cellphone, he called two engineers on-site, Nel and
Welman, and a foreman, Williams.
He instructed them to convey to the
workers that there would be no work the next day, as was the custom.
Saturdays were regarded
as overtime.
[5]
The rationale for the decision, which was taken, not by Kotze, but by
Du Plessis, the project manager, who was not based on-site,
was that
there was no time to plan overtime work for the Saturday. It is also
apparent from Kotze’s evidence that what had
been planned for
the Saturday was work for the subcontractors and that the appellant,
having done so, was financially committed
to the execution of those
tasks and a rearrangement would have been disadvantageous and
logistically challenging. This aspect is
significant and is addressed
hereafter in relation to critical findings made by the Commissioner,
which as shall be shown, shaped
his perspective of the entire saga.
[15]
Nel did not testify. Welman did testify, but was not asked about what
he did, if anything, to
relay this message.
[6]
Kotze says that Nel and Welman reported to him that they conveyed the
message as instructed. Williams said he relayed to his two
crewmen
the message from Kotze that they “were not allowed to work the
next day”. The crewmen immediately protested
and said they
would come anyway. Precisely what time this encounter occurred is
unclear. Williams did not at the time of the discussion
with his
crewmen, know the reason why there would be no overtime worked. He
learnt the reason from Kotze late in the day. A point
of importance
is that Williams was the only foreman out of six foremen who worked
on the site, who was scheduled to be on-site
that Saturday. His
mandate for Saturday was to oversee subcontractors and had no work
planned with his own crew, who had last been
on site, other than that
Friday, three weeks earlier, before the commencement of the strike.
It can usefully be noted at this stage,
that even if it was proper to
disregard Kotze’s hearsay about Nel and Welman conveying the
message, the evidence of Williams
stood unchallenged. This is
important because it is relevant to a probability finding that the
message was indeed disseminated,
whilst on-site, in the course of
that Friday afternoon.
[16]
Kotze returned to the site at about 15h00. According to him,
Motsatse, the shop steward was waiting
for him at the site office.
According to Kotze, they conversed during the period 15h00 to about
15h45. The content and the time
of the exchange is in dispute. Kotze
says he repeated the message that the decision had been taken that
there would be no overtime
on Saturday and asked Motsatse to convey
it to everyone. Kotze says that he stated that the reason for no
overtime being worked
was that no work had been planned for the
workers. Significantly, according to Kotze, Motsatse pointedly asked
why subcontractors
were working while he and his fellow workers were
not working. Kotze says that he explained the role of the
subcontractors and
that their work programme was not organised
according to conventional working hours arrangements which applied to
the appellant’s
workforce. Motsatse says they met very late in
the day, at about 16h45. This time, given by Motsatse, is important
in relation
to his assertion that it was too late to convey any
information to the workforce after he had been given the message.
Motsatse
disputes that any reasons were given by Kotze.
[7]
He says he was simply told: “listen – no work
tomorrow”.
[8]
It must be
inferred from Motsatse’s evidence, that on his version, he did
not press Kotze for an explanation. This episode
is addressed
hereafter in relation to its significance in several respects.
[17]
According to Kotze, after the bus left to return the workers to the
hostel, he had a phone call
from the bus driver. The bus driver is
alleged to have said that he had been told that despite the
instruction that there would
be no work the next day, he was
instructed by the workers to collect them and take them to the site.
Kotze says he told the driver,
who claimed to be afraid to defy the
workers’ demand, to acquiesce in the demand rather than risk
his life. The driver was
not called to testify by either party;
however, Motsatse’s evidence corroborates the fact that the
driver had been enlisted
to defy the management’s decision that
the workers were not needed at the site on Saturday by conveying the
workers to the
site the next day.
[18]
Motsatse gave an account that when the bus left the site, he
addressed the workers, this being,
on his version, his first chance
to convey Kotze’s instruction. According to him, they ridiculed
him for conveying such an
instruction because it was not his role to
do so; rather, such instructions had to emanate from the crew
foremen. The consensus
was that they would go to work the next day,
regardless of what Motsatse said. This stance formed a major element
in the case presented
by the workers: ie. the illegitimacy of the
work-instruction channelled through a shop steward, thereby
justifying them going on-site
the next day.
[9]
[19]
The conduct of the workers on Friday at 16h30 must be considered
together with the events alleged
to have taken place on the bus. Two
possibilities exist.
19.1
First, it must be inferred that their
conduct on Friday at 16h30 - getting the subcontractors off the site
- was precipitated by
an oral communication about the absence of
overtime work on Saturday, which is a powerful indication that the
unhappiness about
the workers not working overtime when the
subcontractors were working, was communicated to them earlier than
during the bus trip.
This inference is also one that is consistent
with Williams’ evidence about the reaction he got when he
conveyed the message
to his crewmen. It is also consistent with
Kotze’s evidence about Nel and Welman passing on the message,
about a rationale
for Motsatse waiting for him at the site office and
the time he had a discussion with Motsatse.
19.2
Second, the alternative inference is that
the workers spontaneously chose on Friday to forbid the
subcontractors to work at any
time they were not working. In my view,
the former inference is probable, the latter improbable.
[20]
One of the workers called to testify, Moagi, a crane driver, claimed
to have been personally
instructed by Kotze to come to work on
Saturday. This version was never put to Kotze. He also denied any
intimidation occurred,
emphasising that the absence of anyone being
injured was conclusive proof of that fact
.
The absence of any physical injuries was a
point much emphasised by worker witnesses as a basis to deny any
intimidation. Self-evidently
this is a wrong premise.
[21]
On Saturday, the workers turned up at about 06h40 and almost at once
left the site to take up
a stand at the gate, locking it and denying
all access. The subcontractors who were on site prior to their
arrival, having started
work from about 06h00, walked off the site
with them. Work on the site was at a standstill. What was observed by
Kotze, Welman
and Williams, according to their evidence, was shouting
and screaming coming from the appellant’s workers, who having
briefly
entered the site, were walking behind a throng of
subcontractors through a relatively narrow passage towards the gate.
Some persons
were seen carrying, variously, a reinforced iron rod, or
pipes or sticks. Williams, in particular, testified that the body
language
of the workers was aggressive. Welman said he was told by a
worker that if the workers did not work, nobody would work. The
impression
on all three men was that the subcontractors were being
shepherded off the site by force. There was a dispute about whether,
largely
with reference to video footage taken by Welman, the images
showed the subcontractors in front and the workers at the rear or
showed
then intermingled. The images were inconclusive in the
resolution of that dispute of fact. Of no little significance was the
unchallenged
evidence of Welman that he was threateningly told to
delete footage off the camera, which he did to avoid the risk of
violence.
In addition, in the presence of the managers, the drafting
clerk, Aphina, an employee of the appellant, was approached in the
site
office by a group of workers and told to leave, which she
promptly did.
[22]
The bare fact of the workers coming onto the site, and almost at
once, everyone, including the
subcontractors vacating the site to
stand at the gate which was then locked and re-entry prevented by the
workers, is common cause.
Also, common cause, is that no attempt
whatsoever was made by anyone on behalf of the workers to approach
Kotze or any other member
of management to present a grievance or
solicit a discussion about the workers’ dissatisfaction. There
was no attempt to
tender to work. What is in dispute is that the
workers intimidated the subcontractors to leave. The workers’
case that no
intimidation occurred relies heavily on the fact that
the subcontractors walked calmly of the site, intermingling with the
workers,
and the fact that no one was assaulted and injured.
[23]
On Saturday morning, Kotze had posted notices at the gate and at the
clocking station saying
there was no work on the Saturday. The
notices were up when the workers arrived. Astonishingly, a copy of
the notice was not adduced
in evidence; as a result, the content of
the text was disputed and a resolution of the dispute over the
message it articulated
was impaired. Predictably, there is a
controversy about how this notice was comprehended: i.e. was the “no
overtime’
instruction solely for Saturday or was all future
overtime work opportunity now precarious? Kotze himself was vague
about the text.
He said its text was to the effect that there would
be no work on Saturday 14 September for WBHO workers and Labour
Broker workers.
[10]
[24]
According to the subcontractor, Faria, on the Saturday morning, he
arrived to find the workers
blocking the gate and the security guards
absent from the vicinity. He did not read the notice. His experience,
whilst locked out
of the site, was that his crew were referred to as
“rats” and that there was a lot of chanting going on by a
throng
of workers whose body language was aggressive. Some of the
workers were carrying bricks. His crewmen relayed to him that the
stance
of the workers was that if they cannot work nor will anyone
else. He thereupon called Kotze for an explanation and understood
from
what Kotze said that overtime was suspended “until further
notice.” Faria says he incurred losses in respect of his
crew’s
wages and lost time to complete his assigned tasks.
[25]
As regards members of management being intimidated, the allegations
were premised on oral exchanges
between the workers and various
members of management and the demeanour of the workers collectively.
Williams and Nel were told
in a threatening tone that “it would
be better” if the managers stayed off the site. The
intimidatory character of
this communication was pooh-poohed in
cross-examination. There was evidence of discomfort by the managers
who expressed their fears
for their safety and who complied with the
workers’ desire that they too vacate the site. In Kotze’s
words: “We
were intimidated to carry out the instructions from
the workers.”
[11]
Welman, who was filming the events, was approached by some workers
who demanded he deletes the footage. He complied out of fear
for his
safety. Kotze called the SAPS who suggested a pragmatic response to
the incident to preserve calm and advised them to acquiesce
in the
workers demand to remain off the site until they had bussed back to
the hostel. The workers’ case to refute the intimidation
claims
was premised on the fact that the managers were physically unhurt by
anyone despite being in close proximity to the workers.
[26]
There were several other reports of other acts of intimidation which
axiomatically are always
difficult to assess both for credibility and
for objective reliability. The upshot is that the site was cleared,
and no work was
possible that day. Understandably subcontractors left
the vicinity and did not return. Faria’s crew of
subcontractors, which
had been denied access, asked permission of the
workers to collect their overalls from the site before leaving. They
were then
escorted by the workers to the change facilities to collect
their kit.
[27]
The financial loss to the appellant for the day’s lost
production was estimated by Kotze
to about R80 - 90,000. The
financial loss to the subcontractors was not estimated.
[28]
On the following Monday, 17
September, the workers
arrived, as did the subcontractors. A routine working day proceeded
until 16h30 when the workers again refused
to work the routine
half-hour of overtime and the subcontractors again were subjected to
demands to leave too. The subcontractors
did as demanded and returned
to the site after the workers’ bus had left for the hostel.
[29]
The following day, the disciplinary process began with the suspension
of the workers. The workers
who are cited as the respondents in the
appeal were all identified from the clocking process on the Saturday
morning. There is
no dispute as to their presence and participation
in the relevant events of that morning.
Evaluation
The Award
[30]
What did the arbitrator make of this body of evidence?
[31]
The natural first point of reference would be the video footage.
Having viewed it, the Commissioner
concluded that it was not helpful
in illustrating the veracity of the allegations made against the
workers in respect of intimidatory
behaviour. In this regard, he is
not to be faulted.
[12]
But he
was indeed in error, as found by the Labour Court, of exaggerating
the absence of illustrated intimidation, and not giving
due weight to
other evidence of intimidation, in reaching his conclusion that there
was no intimidation.
[32]
The Commissioner correctly accepted that it was novel to relay work
instructions via a shop steward.
By inference, he concluded that, by
implication, it was legitimate to defy the instruction, although no
analysis was undertaken
of why that could be a sound proposition,
even if it was correct that the channel of instruction was novel.
This too is a failure
of analysis having a distorting effect on the
outcome of the enquiry.
[33]
A major finding by the Commissioner was that Kotze “wanted to
short-change” the workers
[13]
.
He disbelieved Kotze that the work needed to be planned. This finding
was in part inspired by the finding that no planning was
needed for
the workers to work during the two and a half hours on Friday
afternoon. Moreover, the Commissioner drew support from
an
inappropriate reliance on Moagi’s evidence that Kotze
instructed him to work, which claim had not been put to Kotze,
[14]
and an inappropriate reliance of Faria’s “understanding”
that the decision not to work overtime was “until
further
notice”.
[15]
No analysis
of the evidence that might offer plausible support for the need to
plan work was undertaken nor of the probabilities
relevant thereto.
[34]
The Commissioner concluded that the episode on Saturday was one of
confusion “reigning
supreme” but no real substance is
offered to support this conclusion.
[16]
Moreover, no attempt to synthesise the evidence in its totality was
undertaken which could have contextualised several episodes
that
suggested a contrary perspective: i.e. a concerted defiance of the
management, hatched as early as Friday.
[35]
No credibility findings are made about the evidence of Faria, Welman,
Williams or Kotze about
what they observed, or about the impact the
events made on them. By contrast, a credibility finding in favour of
Moagi was made
without that version being put to Kotze.
The judgment a quo
[36]
The Labour Court, in a meticulous survey of the evidence and of the
findings of the Commissioner
concluded as follows; it is necessary to
set out the conclusions in full to facilitate a critique:
‘
An
assessment of the reasonableness of the award
[45] In the portion
of the
ratio
of the award quoted in paragraphs 34 – 36
above, the Commissioner makes three main findings (which I paraphrase
and then
expand on) in favour of the individual respondents that
serve to contextualise (or mitigate) their conduct on the Saturday.
a) Firstly, Mr
Kotze went wrong in issuing the instruction to Mr Motsatse that the
Saturday overtime shift would not be worked.
The reasoning (or
sub-findings) being that: it was inappropriate and unprecedented for
Mr Kotze to have required instruction to
the individual respondents;
in any event, Mr Motsatse was not afforded a proper opportunity to
address the workforce having regard
to the time constraints; in these
circumstances, and given the controversial / contentious nature of
the instruction, the communication
thereof was bound to be
unsuccessful; and the manner in which the instruction was issued
(i.e. to Mr Motsatse) was bound to cause
confusion.
b) Secondly, the
alleged rationale for the instruction – i.e. that management
did not have time to plan – was
without merit. The reasoning
(or sub-findings) being that: the relationship was strained in the
light of the strike; the individual
respondents had returned to work
and had worked on the Friday without any planning on the part of
management; this supported their
case that planning was not required
for the Saturday overtime shift; three other things also supported
their case, namely what
occurred in relation to Mr Moagi (i.e.
Samuel), Mr Faria’s evidence that Mr Kotze had told him that
overtime would not be
worked “
until further notice”
,
and Mr Williams’ evidence that he (as a foreman) was not even
told of the rationale for the instruction; and accepting that
there
was no need to plan work; it followed that Mr Kotze was “
malicious”
in refusing the individual respondents to work, and “
denied
(them) the right to earn a living”
on the Saturday.
c) Thirdly, “
confusion
reigned supreme”
on the Saturday. The reasoning (or
sub-findings) being that: the notice posted on the gate and notice
board (which was not produced
by the company during the arbitration)
advised of the stopping of overtime; the notice made no distinction
between WBHO workers
and subcontractors; those subcontractors who
intermingled with the WBHO workers might have considered the notice
as applying to
them; and (as already mentioned above) the manner in
which the instruction was issued (i.e. to Mr Motsatse) contributed to
the
confusion.
[46]
Insofar as the company attacks the reasonableness of these three
findings, I do not consider
any of them to constitute a finding that
a reasonable decision-maker could not arrive at.
a) Regarding the
first finding, the evidence produced a dispute about the propriety of
issuing a work-related (overtime) instruction
to a shop steward
(instead of foremen) – it being Mr Kotze’s evidence that
this had been done before, and Mr Motsatse’s
evidence that it
was unprecedented. The Commissioner’s finding in favour of Mr
Motsatse’s version was by no means unreasonable.
And as for the
balance of the Commissioner’s sub-findings, the reasonableness
thereof is borne out by the fact that it was
the evidence of both
Messrs Mvelase and Motsatse that workers on board the bus effectively
laughed off Mr Motsatse’s attempt
to convey a work-related
instruction to them – this because it was abnormal for him to
do so.
b) Regarding the
second finding, in circumstances where it was properly supported by
at least three of the four factors relied
on by the Commissioner, it
is justifiable and thus reasonable. (I disregard what occurred with
Mr Moagi in the absence of his version
having been put to Mr Kotze
under cross-examination). The same applies to the inference that the
Commissioner then drew from the
finding that the need for planning
was not actually the rationale for cancelling the shift, namely that
the decision was, in effect,
mala fide
. Indeed, Mr Faria’s
evidence alone served as a plausible and justifiable basis for this
finding – the company had decided
to stop overtime
indefinitely, for reasons that I chose not to explain. The
Commissioner may well have been wrong in finding
mala fides
,
but the finding is supported by material evidence, and is thus not
unreasonable.
c) Regarding the
third finding, in failing to produce the notice at the arbitration,
the company paved the way for the Commissioner
to accept the evidence
of NUM’s witnesses about what it said, and about how the
subcontractors may have interpreted it –
it having been Mr
Moagi’s evidence that they could have assumed that it also
applied to them. And as already found above,
the relaying of the
instruction to the shop steward – which was rejected out of
hand by the workers – also contributed
to the confusion on the
Saturday. In these circumstances, the Commissioner’s finding
was by no means unreasonable.
[47] The upholding
of the reasonableness of the three findings analysed above has
important consequences for the review of
the balance of the award –
it being accepted (because the findings are unreasonable, not
necessarily right) that it was inappropriate
for the instruction to
have been issued to the shop steward and that it was bound to
miscarry; that the rationale for the instruction
was without merit
and that the decision to cancel the Saturday overtime shift was
mala
fide,
and that confusion reigned supreme on the Saturday. This
then is the background against which the ensuing events and the
Commissioner’s
findings in relation thereto, stand to be
analysed.
[48] Turning then to the
reasonableness or otherwise of the Commissioner’s findings
quoted in paragraph 37 above to the effect
that there was no
intimidation on the Saturday, my assessment of the findings is as
follows:
a) All the quoted
paragraphs from the award (save for paragraphs 5.50, 5.55, 5.56 and
5.62, which I deal with separately below)
deal by and large with
video 1 – and the commentary thereon provided by Mr Welman and
NUM witnesses. Having evaluated video
1 (see paragraph 26(a) above),
I am of the view that the Commissioner’s conclusion that it
does not establish that the WBHO
workers marched out (or chased out,
as the company’s witnesses put it) the subcontractors from the
site or intimidated them
in the process, is reasonable. The same
applies to the Commissioner’s reasoning and each of his
sub-findings, which are all
supported by plausible, material
evidence. In truth, video 1 did little to advance the company’s
case.
b) In relation to
paragraph 5.50 of the award, the Commissioner incorrectly records Mr
Williams’ version. He did not
testify that he felt threatened
in the tunnel / passage, but rather that he felt threatened later on
when he went to the entrance
gate with Mr Nel (when some workers were
carrying bricks). But in itself, this error is not material).
c) In relation to
paragraphs 5.55 and 5.56 of the award, the findings accord with the
Commissioner’s rendition of Mr Welman’s
re-examination
(not contained in the transcript) reproduced in paragraph 25 above.
In the circumstances, the findings are not unreasonable.
d) In relation to
paragraph 5.62 (dealing with videos 2 and 3), while it is so that Mr
Welman may be accused of having posed
the equivalent of leading
questions, the Commissioner may well have misdirected himself in
ignoring what the interviewees said
on this basis alone. But, again,
this is not material because, in the absence of the interviewees
having given evidence for the
company at the arbitration and been
subjected to cross-examination, the Commissioner could, in any event,
have reasonably disregarded
what they said in the videos (which is
what he did).
[49] The above
notwithstanding, it does seem to me that the manner in which the
Commissioner determined the issue of whether
the individual
respondents engaged in intimidation on the Saturday is open to
criticism in three main respects:
a) Firstly, the
Commissioner focused extensively on video 1, to the exclusion of the
eyewitness testimony of Messrs Kotze,
Williams and Welman, who all
testified that the WBHO workers chased the subcontractors out of the
site (this also appears from
paragraph 5.75 of the award quoted in
paragraph 39 above.)
b) Secondly, the
Commissioner focused extensively on whether the subcontractors were
intimidated, to the exclusion of an inquiry
(or a proper one) into
whether management was intimidated (this also being evident from
paragraph 6.1 of the award quoted in paragraph
39 above). Of the
members of management who testified, Mr Kotze did not contend that he
was intimidated; Mr Williams contended
that he was threatened at the
time of being told by Mr Madudijabe to leave the site and upon doing
so together with Messrs Kotze
and Nel; and Mr Welman appears to have
contended in re-examination that he was threatened.
c) Thirdly, the
Commissioner did not consider the events at the entrance gate after
the WBHO workers and the subcontractors
had left the site, which
required as assessment of, in particular, the evidence of Mr Faria.
[50] While it can fairly
be said that the Commissioner misdirected himself in these three
respects, as the authorities make clear,
the question is whether –
despite such misdirections – the conclusion reached by the
Commissioner that the dismissal
of the individual respondents was
substantively unfair is, nevertheless capable of reasonable
justification. Put differently, is
the distorting effect of the
misdirections the production of an unreasonable outcome, or is the
outcome reasonable, despite the
misdirections? In addressing this
question, I deal with each of the three misdirections in turn below.
[51] In relation to
the first misdirection, while the Commissioner did not consider this
particular evidence, given that it
is materially at odds with video
1, it could thus reasonable have been rejected.
[52] In relation to the
second misdirection, as dealt with above, the Commissioner’s
rejection of Mr Welman’s evidence
of intimidation given under
re-examination was not unreasonable. That leaves the evidence of Mr
Williams. The first leg of his
evidence about feeling intimidated at
the time of being told by Mr Madudijabe to leave the site, could
reasonably be rejected insofar
as he sought to attribute this to all
of the individual respondents. Likewise, the second leg of Mr
Williams’ evidence about
being intimidated upon leaving the
site together with Messrs Kotze and Nel, could reasonably be rejected
on the basis that it is
entirely in conflict with the evidence of Mr
Kotze, who made no mention of any intimidation at this point.
[53] The third
misdirection is, however, more problematic.
a) On the evidence
presented, WBHO workers gathered outside the entrance gate for at
least some two hours (from after 07h10
to about 09h00, on Mr
Motsatse’s version). For at least a portion of this time, WBHO
workers blocked the entrance and thus
prohibited subcontractors from
entering the site. In the process, WBHO workers carried what I
loosely refer to as weapons, and
chanted words to the effect that
they “
do not want rats”
. This was clearly
intimidatory, and struck fear into at least Mr Faria and his work
crew. At the time, restraint was demonstrated
by WBHO workers who (in
close proximity) allowed three of Mr Faria’s employees to
access the site to collect overalls, and
three of the company’s
managers (Messrs Kotze, Nel and Williams) to egress the site –
all of this without incident.
And by the time the SAPS arrived, calm
had been restored, with WBHO workers cooperating with the SAPS –
entering the site
and then leaving on the bus without delay.
b) During the
arbitration, NUM did little to rebut the adverse facts traversed
above, with it seemingly having put its eggs
in the basket of the
company having been unable to identify who exactly participated in
the intimidation of subcontractors at the
entrance gate. To my mind,
this is misconceived. In the peculiar circumstances of this matter,
the company establish at least a
prima facie
case that all the
individual respondents were present outside the entrance gate at the
material times and were party to the events
that occurred there. If
any of the individual respondents wished to contest this, it was up
to them to do so. None of them did
so. Instead, it was accepted that
the evidence of NUM’s witnesses (Messrs Moagi, Mvelase and
Motsatse) would stand as the
evidence of all the individual
respondents, with none of NUM’s witnesses having disputed their
presence and participation
in the events at the gate.
c) In these
circumstances, a reasonable Commissioner would, in my view, have
found that the individual respondents were guilty
of having
intimidated subcontractors outside the entrance gate. It follows that
I consider the Commissioner’s award that
“
the WBHO
workers did not intimidate the subcontractors”
(see
paragraph 6.1 of the award quoted in paragraph 39 above) to be
unreasonable.
d) But, as dealt
with above, this, in itself, does not render the Commissioner’s
conclusion that the dismissal was substantively
unfair and award of
reinstatement reviewable. In order to succeed with a reasonableness
review, the company must go further and
establish that, if the
Commissioner had found the individual respondents guilty as he ought
to have, he could not reasonably have
avoided finding that the
sanction of dismissal was fair and appropriate. Because if he could
have, then the outcome of the award
– a finding substantive
unfairness and reinstatement – is reasonable, and thus not
reviewable.
e) The question
then is this – had the Commissioner found the individual
respondents guilty in the terms described above,
could he reasonably
have found that dismissal was not warranted? To my mind, the answer
is in the affirmative. Although the misconduct
of the individual
respondents was serious, there are material mitigating factors in
their favour. To begin with, as reasonably
(not necessarily
correctly) found by the commissioner: (i) it was inappropriate for
the shift cancelling instruction to have been
issued to the shop
steward and it was bound to miscarry; (ii) the rationale for the
instruction was without merit and the decision
to cancel the shift
was
mala fide
; and (iii) confusion reigned supreme on the
Saturday. Each of these factors is compelling. In addition, the
individual respondents
had just returned from a protracted protected
strike and were, no doubt, suffering the financial consequence
thereof, with the
cancellation of the overtime shift being a blow.
The fact that subcontractors were allowed to work – some of
whom were performing
the work of the individual respondents –
and that overtime might have been perceived as having put on hold
indefinitely,
would also have understandably perturbed the individual
respondents. Also mitigatory is the fact that the individual
respondents
exercised restraint in allowing some entry to and egress
from the site, and cooperated with the SAPS. There was also no
evidence
of a prior disciplinary record. When all these mitigating
factors (some being unique and peculiar) are balanced up against the
severity of the misconduct, it seems to me that a reasonable
decision-maker could readily have come to the conclusion that the
sanction of dismissal was too harsh, and accordingly that the
dismissal was substantively unfair. And for as long as that is the
case, the Commissioner’s finding of substantive unfairness and
award of reinstatement (albeit for different reasons) was
not
unreasonable, and thus not reviewable.
f) That said, if
they had been found guilty of the intimidation of subcontractors (as
they ought to have been), I do not believe
that a reasonable
Commissioner would have reinstated the individual respondents
retrospectively to their dismissal, i.e. with full
back-pay. Instead,
as a mark of his disapproval of the individual respondents’
misconduct, a reasonable Commissioner would
have reinstated them
without back-pay.’
[37]
There are several aspects to this analysis. Certain findings are, in
my view, unduly generous
to the Commissioner, others are inconsistent
with the evidence adduced and what reasonable inferences could be
drawn. I address
these aspects in turn.
[38]
The examination of a Commissioner’s reasons to determine
whether a distorting effect on
the outcome has ensued to produce an
outcome that no reasonable arbitrator could have reached is a
delicate exercise. It is plain
that the Labour Court appreciated this
dimension. Under what circumstances is it proper for a Court of
Appeal to disturb such findings
of a Review Court? There must be a
margin of toleration for the evaluations of the court
a quo
.
Thus, in my view, it is proper to undo such findings only when
clearly wrong. This is an outcome which can plainly be demonstrated
when the Court of Appeal can point to errors of fact. In
second-guessing evaluative conclusions, this is less simply
demonstrable.
In my view, that threshold is breached when the
conclusion reached by the Review Court is untenable.
[39]
The Labour Court identified three main findings by the Commissioner:
(1) that Kotze was wrong
to instruct Motsatse to convey a work order,
(2) that the rationale for the order was without merit and (3) that
the consequences
caused material confusion on the part of the
workers. The Labour Court held that all three findings were in their
material respects,
not unreasonable, even if not right. These
findings are, of course, delineated distinctly only for the purposes
of analysis, and
do not have separate objective self-standing status.
I disagree with the conclusions that the Commissioner’s
findings were
not unreasonable. I deal with these aspects
holistically.
[40]
The finding that it was novel for a work-order to be channelled
through a shop steward is, itself,
unassailable. The reasons for that
finding are several. In addition to the reasons mentioned in the
judgment
a quo
are the following which I mention because they
have implications for other aspects of the overall analysis.
40.1
First, it is plain common sense that
work-related orders go through the chain of command. Shop stewards
are not in that loop.
40.2
Second, the protestations by Kotze that
this channel was used in the past for work instructions are wrong, on
his own version. His
attempt to contend that relaying work
instructions via a shop steward had precedent rises to a high point
that it happened when
the workforce wanted to vary work programmes or
exceptional circumstances arose causing the management to want to
disturb the usual
routine. In such circumstances, the shop stewards
would be consulted. This practice does not address the controversy at
issue;
such exchanges under those types of circumstances are proper
Management/Union engagements, not work instructions. It is not
sensible
to conflate these two very different types of encounters.
[41]
However, what was not properly appreciated was that this work-order
conveyed to Motsatse on Friday
was not issued under routine
circumstances. The failure to evaluate the actual event in its proper
context is a failure of analysis.
Looming large by its absence is an
appreciation of the following:
41.1
The site management was told of the end of
the strike only on Friday morning, allowing no real opportunity to
reintegrate the returning
strikers into the work programme;
41.2
Kotze, the site manager, was absent from
the site until after 15h00 and was impaired thereby from addressing
the reintegration,
the imminence of which he had had no prior notice;
41.3
Kotze had been instructed by the Project
Manager, Du Plessis, not to marshal the workers on Saturday;
41.4
The rationale for that decision was that
plans to cater for the work programme for Saturday were already in
place and that (for
the self-evident reason that no-one could predict
the exact moment of the end of the strike) plans would either have to
be changed
or the workers not be deployed on Saturday;
41.5
That construction is
ipso
facto
an orchestrated process requiring
coordination of resources and deployment of capacity, not a rote
process that can be activated
or ceased at the drop of a hat; and,
41.6
That, accordingly, the notion that planning
of work was necessary is both inherently plausible and credible. The
finding that Kotze
wished to short-change the workers is an egregious
slur wholly unjustified by the body of evidence.
[42]
As to the manner of conveying the fact of there being no work the
next day under these exceptional
circumstances, it was wholly
appropriate to engage the shop steward, because it was necessary to
manage the expectations of the
workers and a deviation from the work
routine. It cannot be overlooked that Kotze had also instructed the
line managers to cascade
down the instruction that there would be no
work the next day: the discussion with Motsatse did not occur in
isolation. It is indeed
plausible to conclude that Kotze’s
approach in this regard was not insightful. It is also plausible that
he was run off his
feet by the events of the day. In retrospect, a
proper meeting with Motsatse, minuted, and followed up by a proper
notice to the
workers would, in hindsight, have been appropriate
because what was called for was a discussion on the transition back
onto the
site, not a mere work instruction. Instead, by dealing with
the issue informally, and not appropriately appreciative of the
sentiments
likely to be harboured by the returning strikers, the
decision did nothing to assuage the resentment of the workers -
returning
strikers - towards the subcontractors earning while they
were not. However, Kotze’s lack of deftness in this regard
ought
not to be exaggerated nor exploited to try to rationalise that
his conduct caused the work stoppage on Saturday.
[43]
The idea that there was “confusion” on Saturday by the
workers and subcontractors
does not, in my view, stand up to
scrutiny. Such a conclusion is premised on taking the workers’
evidence at face value about
the communication to them without proper
analysis and ignoring the other evidence. Insofar as this conclusion
is founded on the
notion that it was Faria’s understanding that
overtime was indefinitely stopped until further notice, it is a
wholly incorrect
premise. There is not a shred of evidence that
anyone other than Faria himself had that understanding – and he
says he interpreted
Kotze to have said so, not because he read the
notice on the gate. Not unimportantly, no worker who testified quoted
the text.
The idea was floated that the notice was so worded as to
make no distinction between the appellant’s workers and the
subcontractors,
thereby facilitating the prospect that the
subcontractors might have reasonably thought it applied to them too –
a source
of confusion, The Commissioner thought that the
subcontractors saw themselves as victims of the appellant’s
capriciousness.
This idea is preposterous: the subcontractors, taking
instructions from their own employers and working to complete a task,
not
minding the clock, would not, plausibly, have thought a notice
about overtime could conceivably apply to them. Thus, the notion
that
their exodus was in response to confusion is untenable. As regards
the fact that the workers worked on Friday without any
planning being
a support for such a notion; not only it a
non-sequitur
, but
the issue was not meaningfully addressed in the evidence. The workers
arrived in time for the lunch-break. They began work
at 12h45 and
finished at 16h30. What they actually did is not described, an
omission that is much to be regretted. None of what
is known helps to
rebut the plausible proposition that the next day’s work had to
be planned. The last factor supposedly
relevant, in the view of the
Commissioner, was the strained relationship immediately after the
strike. In my view this is immaterial
to the enquiry as to the truth
of the rationale for no overtime to be worked on Saturday; rather it
feeds into a probability of
a belligerent sentiment on the part of
the workers. A more critical factor, again ignored, is the evidence
that no foreman, except
Williams, was scheduled to be on duty that
Saturday: thus, who was supposed to supervise the workers perform the
unplanned work?
[44]
Moreover, what is again fatal to the analysis is the ignoring of
important contextual evidence.
First, there was the sabotaging of the
half-hour overtime on Friday; second, the adamant responses of
Williams’ two crewmen
on Friday afternoon that they would come
to work anyway. This evidence went unchallenged. Similarly, the
sabotaging of the half-hour
of overtime on the following Monday was
ignored. These episodes strongly suggest that the workers had
collectively decided to react
to the fact that the subcontractors
were working overtime when they were not, a decision axiomatically
taken on Friday before the
bus left. Thus, at worst for the workers,
if Motsatse alone conveyed the message, it is more likely that Kotze
is correct that
he spoke to Motsatse about it at the latest between
15h00 and 15h45, rather than at 16h45, as suggested by Motsatse.
There was
time to do exactly what Kotze expected Motsatse to do.
Moreover, the events of the strike are pertinent to weigh, and they
were
wholly ignored. If during the strike these workers warned off
the subcontractors and an interdict was necessary, how implausible
could it be that they did the same on the Friday afternoon at 16h30,
and again on Saturday morning, and, again on Monday 17 September
at
16h30?
[45]
In the result, in my view, the Labour Court’s conclusions that
these findings, in the respects
addressed, are free from
unreasonableness, are incorrect.
[46]
I turn now to the Labour Court’s treatment of the findings of
the Commissioner on the question
of intimidation being proven.
[47]
The Labour Court concluded that the Commissioner was materially in
error because he failed to
appreciate that a solid case for
intimidation of the subcontractors at the gate was proven. This
conclusion is correct. However,
I cannot agree that no case was made
out in other respects as alleged.
[48]
The evidence of the management witnesses about their experiences make
out an unassailable case
for intimidation: Welman was forced to
delete footage; Williams gave an account of one worker, Philip,
telling him to convey to
management to leave the site – a
demand made in front of a rumbling crowd which made him afraid; Kotze
says he obeyed the
demand to leave because he was afraid. (In the
case of Kotze, the Labour Court has incorrectly noted his evidence:
Kotze unequivocally
expressed his fear) and lastly, Kotze and the
other managers remained off-site on the advice of the SAPS. They also
witnessed a
group come to the office to demand Aphina to leave; they
could not have thought that they too were not at risk of such a visit
if they too did not acquiesce. They all had experience of the
behaviour of the workers during the strike necessitating the
application
for an interdict. No sound reason exists to undervalue
this evidence. Yet, the Labour Court concluded that only the
intimidation
of the subcontractors at the gate is proven. In my view,
the unreasonableness of the award extends to a failure to appreciate
that
this evidence proves intimidation of the management too.
[49]
Lastly, the Commissioner’s finding that there was inconclusive
evidence of intimidation
of the subcontractors to leave the site is
untenable and the Labour Court’s conclusion that the finding
was not unreasonable
is incorrect. Again, there is no sound reason to
reject the eye - witness accounts of the managers. The inherent
probabilities
are also relevant. I have addressed above, the
implausibility of the subcontractors thinking the notice about no
overtime could
apply to them. Whether the workers and the
subcontractors intermingled on the way to the gate is unimportant.
The plain fact is
that the workers were the sole cause of the
departure of the subcontractors from the site. The subcontractors had
immediately before
then, either been working or in a state of
preparation to work: their self-interest was wholly at odds with
walking off site and
losing time, just as they had suffered during
the strike at the instance of these very workers. If the
subcontractors were intimidated
at the gate to stay out, the
overwhelming probabilities are that they were intimidated to get out
too. The fact that no-one was
injured is merely evidence of their
submission to the force that could be exerted by the workers. The
evidence of bricks, sticks,
pipes and robars being carried about
cannot be excluded from the mix of relevant facts.
[50]
The upshot is that the failure to find that the subcontractors and
the managers were intimidated
to get off the site was unreasonable,
and the Labour Court should have found that to be the case, in
addition to the intimidation
that occurred at the gate.
[51]
Over and above these considerations, as alluded to above, there was a
failure to take into account
the deliberate shutting down of the
site, part of the misconduct alleged by the appellant and an
undisputed proven fact. The Commissioner
and the Labour Court
focussed on too narrow an issue. The intimidation is itself serious
but it must be measured in the context
of its functionality –
to bring all work on the site to a halt; an action they had
previously engaged in during the recent
strike and had thereby
provoked the appellant to obtain an interdict.
[52]
To sum up, the Commissioner ought to have found the charge as framed
was proven and that the
misconduct extended to the intimidation of
management and subcontractors to leave the site, as well as the
blocking of the gate
to prevent any subcontractors gaining entry,
thereby illegitimately bringing work to a halt by the use of force.
The appropriate
sanction
[53]
I deal first with the factors the Labour Court deemed relevant to
mitigating the workers’
conduct.
[54]
In my view:
54.1
The fact that the workers allowed certain
subcontractors to collect their overalls under escort is not a
mitigating factor. It was
used to justify a finding that the workers
acted with “restraint”. In my view, this perspective is
wholly misconceived;
rather, it was a naked display of power over the
circumstances and the subcontractors. Moreover, it was a power
illegitimately
arrogated by the body of workers to itself and is an
illustration of the seriousness of their misconduct, not a factor to
ameliorate
their behaviour.
54.2
The inappropriate routing of a work-related
instruction via a shop steward which was “bound to miscarry”
is said to
be a mitigating factor. This is premised on a wrong
finding of fact. The manner of the instruction was exploited by the
workers
to afford a platform to vent their resentment that the
subcontractors were working when they were not. No grievance was
lodged
which is what Motsatse could have done if he thought he had a
proper case.
54.3
The notion that the instruction by Kotze
was
mala fide
is premised on a wrong finding of fact, as addressed above. Moreover,
as the probabilities show, the instruction to Motsatse was
not the
only communication of the instruction.
54.4
The notion that confusion reigned supreme
is premised on a wrong finding of fact, as addressed above; on the
contrary, on the probabilities,
there could be no confusion.
54.5
The possible belief that overtime was on
hold indefinitely is premised on a wrong finding of fact, as
addressed above; it relied
on a personal belief of Faria which belief
had not been communicated to the workforce.
[55]
One factor, the perception, however subjective, that the absence of
overtime work on Saturday
could affect the workers financially is
mitigatory. What however is absent is evidence that this was the
belief held and that it
actuated their conduct. Their case was
different: ie, that Kotze had no authority to say there would be no
work on Saturday. However,
even if this factor is to be naturally
inferred, what needs to be weighed is the absence of any effort to
take up the grievance
in an orderly manner in accordance with sound
labour relations norms.
[56]
The Labour Court acknowledged that the misconduct, even on the lesser
scale that it held, was
serious. However, an order of reinstatement
does not reflect the weight to be given to that perspective. Naked
displays of power,
bereft of respect for labour relations norms,
ought not to be rewarded. To do so, achieves no more than to
exacerbate the decline
of respect for those norms. The Courts have
repeatedly held that the resort to mob-power to ventilate grievances
is utterly unacceptable.
Only a zero-tolerance stance by the courts
can bring such conduct to an end.
[57]
The appropriate sanction is dismissal.
The costs
[58]
In view of the ongoing relationship between the union and management
and the fact that it was
appropriate for the union to seek to resist
the appeal and defend the review judgment in its favour, there shall
be no costs order.
The order
(1)
The appeal is upheld.
(2)
The order of the Labour Court is set aside.
(3)
The award of the Commissioner is set aside.
(4)
The dismissal of the respondents is not
unfair.
______________________________
Sutherland JA
Davis JA and Murphy AJA
Concur
APPEARANCES:
FOR THE APPELLANT:
Adv M Snider SC,
Instructed by Fluxmans.
FOR THE RESPONDENTS:
Adv S Beukes
Instructed by Mohale Inc.
[1]
The
workers had also been charged with defying an instruction not to
turn up to undertake overtime work on that day and for their
disruptive behaviour in the disciplinary process, but the internal
disciplinary enquiry had not found them guilty on those charges.
Perversely, a lot of the time at arbitration hearing was devoted to
rehashing details irrelevant to the sole charge on which
they had
been dismissed.
[2]
(2015)
36 ILJ 2802 (LAC).
[3]
(2015)
36 ILJ 2902 (LAC)
at
[32]
- [33]:
“
[32]
However, sight may not be lost of the intention of the legislature
to restrict the scope of review when it enacted s 145
of the
LRA, confining review to 'defects' as defined in s 145(2) being
misconduct, gross irregularity, exceeding powers
and improperly
obtaining the award. Review is not permissible on the same grounds
that apply under PAJA. Mere errors of fact
or law may not be enough
to vitiate the award. Something more is required. To repeat: flaws
in the reasoning of the arbitrator,
evidenced in the failure to
apply the mind, reliance on irrelevant considerations or the
ignoring of material factors etc must
be assessed with the purpose
of establishing whether the arbitrator has undertaken the wrong
enquiry, undertaken the enquiry
in the wrong manner or arrived at an
unreasonable result. Lapses in lawfulness, latent or patent
irregularities and instances
of dialectical unreasonableness should
be of such an order (singularly or cumulatively) as to result in a
misconceived enquiry
or a decision which no reasonable decision
maker could reach on all the material that was before him or her.
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an unreasonable outcome or
provide
a compelling indication that the arbitrator misconceived the
enquiry. In the final analysis, it will depend on the materiality
of
the error or irregularity and its relation to the result.
Whether the irregularity or error is material must be assessed
and
determined with reference to the distorting effect it may or may not
have had upon the arbitrator's conception of the enquiry,
the
delimitation of the issues to be determined and the ultimate
outcome. If but for an error or irregularity a different outcome
would have resulted, it will ex hypothesi be material to the
determination of the dispute. A material error of this order would
point to at least a prima facie unreasonable result. The reviewing
judge must then have regard to the general nature of the decision
in
issue; the range of relevant factors informing the decision;
the nature of the competing interests impacted upon by the
decision;
and then ask whether a reasonable equilibrium has been struck in
accordance with the objects of the LRA. Provided the
right question
was asked and answered by the arbitrator, a wrong answer will not
necessarily be unreasonable. By the same token,
an irregularity
or error material to the determination of the dispute may constitute
a misconception of the nature of the
enquiry so as to lead to no
fair trial of the issues, with the result that the award may be set
aside on that ground alone. The
arbitrator however must be shown to
have diverted from the correct path in the conduct of
the arbitration and as a result
failed to address the question
raised for determination.” (Footnotes omitted).
[4]
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
(2007)
28 ILJ 2405 (CC).
[5]
There
was a dispute about whether Saturday overtime was compulsory;
resolving that dispute is unimportant in the circumstances
There was
a dispute about whether Saturday overtime was compulsory; resolving
that dispute is unimportant in the circumstances.
[6]
The
Evidence of Welman available is his evidence in chief. The cross
examination is missing. In the Award pp29-30) in the treatment
of
Welman’s testimony, the commissioner states no evidence
adduced from Welman about the events of Friday.
[7]
The
evidence given in chief by Motsatse’s is missing from the
record: the only account is that of the summary of the commissioner
in his award. The summary makes no reference to this
discussion; it must be assumed that Motsatse did not address it. It
was extensively addressed in cross examination, for which a
transcript does exist.
[8]
Record:
Motsatse Vol 11/p1102/ L25.
[9]
Record:
Vol11/p1103/L14-15: - “He [Kotze] has no right to come to me
and tell me that Motsatse you do not come to work.
He must liaise
with the foreman as the foreman is the one who get authority over
me.” (sic).
[10]
Record:
Kotze- p775/ L25.
[11]
Record:
Vol 8; p789/ L12-22.
[12]
Award:
p 33, para 5.6
[13]
Award,
p 34 Para 5.40
[14]
Award:
p 35 para 5.33.
[15]
Award:
p34 para 5.27 – 5.31.
[16]
Award:
p35/para 5.37.