IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR1403/16
In the matter between:
AMCU obo KELEBOGILE VALERIE BOTSHELENG Applicant
And
MOTHUSI MAJE, N.O. First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
ASSMANG IRON ORE (KHUMANI MINE) Third Respondent
Heard: 01 March 2023
Delivered: 09 January 2024
JUDGMENT
VOYI, AJ
[1] This is an application , by AMCU acting on behalf of Ms Kelebogile Valerie
Botsheleng (Botsheleng), to review and set aside an arbitration award issued
by the first respondent, Commissioner Mothusi Maje (Commissioner) on 01
June 2016 under case number NC2730-15.
2
[2] The application for review is launched in terms of section 145 of the Labour
Relations Act 1 (the LRA). It is opposed only by the third respondent, being
Assmang Iron Ore (Khumani Mine) (Assmang). The Commissioner and the
second respondent, being the Commission for Conciliation, Mediation and
Arbitration (CCMA) elected to abide by the decision of this court.
[3] Botsheleng was dismissed by Assmang for misconduct on 19 August 2015.
The charges of misconduct for which she was found guilty and ultimately
dismissed were two, namely: (a) failure to follow company safety policy and
procedure by putting the safety of yourself and other employees at risk on 24
May 2015, and (b) dishonesty by giving incorrect accident information during
the investigation by claiming that she had a blackout at the time of the
accident.
[4] After her dismissal and w ith the assistance of AMCU, Botsheleng referred an
unfair dismissal dispute to the CCMA. Conciliation failed and the dispute
proceeded to arbitration.
[5] The unfair dismissal dispute was arbitrated by the Commissioner on 06 April
2016 and the proceedings became part -heard, only to be concluded on 25
May 2016. Shortly thereafter, the Commissioner issued the arbitration award
which is the subject of the present review proceedings.
[6] In the arbitration award being challenged in these review proceedings, the
Commissioner took the decision that the dismissal of Botsheleng by Assmang
for the aforesaid charges of misconduct was both substantively and
procedurally fair.
[7] In support of the decision he took, the Commissioner reasoned as follows:
’65. I have accepted [Assmang’s] reasons for establishing the rule and
prescribing the penalty for breach of the rule. It is not up to me to set
aside [Assmang’s] disciplinary standards merely because I would
1 No. 66 of 1995, as amended.
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have preferred different standards. I further respect the fact that
[Assmang] has a greater knowledge of the demands of the business
than I do.
66. I have taken into account not what the sanction should have been, but
whether [Assmang’s] decision to dismiss was fair. It was the evidence
of [Assmang’s] witnesses that the company’s disciplinary code
prescribes dismissal as a penalty for the alleged transgression and
that the company had in the past dismissed employees found to have
committed the same misconduct.
67. In this instance, I believe dismissal to be appropriate, and I find
[Botsheleng’s] dismissal to be procedurally and substantively fair.’
[8] Prior to commencement of the arbitration proceedings on 06 April 2016,
AMCU and Assmang convened a pre -arbitration meeting and thereafter
signed a minute of the said meeting. In the minute, it was agreed between the
parties that the procedural fairness of Botsheleng’s dismissal is not in dispute
and will therefore not be challenged. With regard to substantive fairness, the
following is recorded in the signed minute:
‘3. Substantive fairness
3.1 Was there a workplace rule in place?
Yes
3.2 Was the rule standard / valid or reasonable?
Yes
3.3 Was the employee aware of the rule or could reasonably be
expected to have been aware of the rule?
Yes
3.4 Is the rule or standard consistently applied?
No – Inconsistency exist
3.5 whether dismissal was an appropriate sanction?
No it was not.’
[9] In the arbitration award, the Commissioner identified the issues in dispute as
follows:
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‘9. [Botsheleng] submitted that she challenges the inconsistent
application of the rule in the workplace and the appropriateness of the
action, as a dismissal.’
[10] In making a determination on the inconsistency challenge, the Commissioner
arrived at the following findings:
’63. I therefore conclude that even where the issue of consistency is
considered, by having regard to the record of evidence; [Botsheleng]
has not established any case of inconsistency on the facts of this
matter, or in terms of the relevant principles of law. Any other issue of
inconsistency thus cannot affect the outcome in this matter and cannot
serve as substantiation in this matter.
64. [Botsheleng] did not lead any evidence including the records existed
of any disciplinary action on the charges similar to the preferred
charges against her and employees concerned who were disciplined
for the same or similar misconduct.’
[11] In the founding affidavit in support of the application for review, AMCU asserts
that the Commissioner simply accepted, “… without any evidence to support
the allegation that there was an element of dishonesty from [Botsheleng’s]
side, alternatively without evidence sufficient to satisfy a balance of
probabilities, that [Botsheleng] was dishonest in any way .”2 For this and other
reasons stated in the said affidavit, it is contended by AMCU that the
Commissioner’s award is susceptible to review.
[12] When the matter was argued before me, the crisp issue that was brought to
the fore was whether the Commissioner was bound by the minute of the pre -
arbitration meeting with regard to what he had to determine. According to
Assmang, AMCU did not dispute that Botsheleng was guilty of the misconduct
which resulted in her dismissal. Assmang therefore argued that the
2 At para 8.4 of the founding affidavit.
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Commissioner was, in view of the signed minute, not required to determine
whether Botsheleng had committed the misconduct . The position taken by
Assmang is that AMCU did not dispute, during the arbitration proceedings,
that Botsheleng had committed the misconduct which resulted in her
dismissal.
[13] Much to my astonishment, it was argued before me, on behalf of AMCU, that
the Commissioner should have found that he was not bound by the minute of
the pre-arbitration meeting. In developing this argument, counsel for AMCU
contended that the Commissioner should have delved into whether or not
Botsheleng had committed the misconduct for which she was dismissed.
[14] When I consider the parties’ respective cases in this review, it becomes clear
to me that this matter brings into sharp focus the status of a minute of a pre -
arbitration meeting. It is crystal clear to me that the minute signed by the
parties prior to commencement of the arbitration proceedings limited the
issues for determination by the Commissioner to only the inconsistency
challenge and the appropriateness of the sanction of dismissal. The
Commissioner himself was alive to this fact. At the outset, he conveyed to the
parties his appreciation of the issues he had to determine by placing the
following on record:
‘What is placed in dispute here is the rule and standard was not consistently
applied and as well the dismissal was not an appropriate sanction. How I
would like to bring to your attention as well again that the only two issues
that are in dispute that I must determine on, is that the rule was not
consistently applied, and dismissal was not an appropriate sanction.’3
[15] In my considered view, the argument advanced on behalf of AMCU is
destitute of merit. It is axiomatic that a minute of a pre-arbitration meeting or a
pre-trial conference is binding on the parties. In National Union of
3 At pages 1 and 2 of the Transcript of the arbitration proceedings of 06 April 2016.
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Metalworkers of South Africa v Driveline Technologies (Pty) Ltd 4, Conradie JA
held thus:
‘It is true, of course, that a pre -trial agreement is a consensual document
which binds the parties thereto and obliges the court (in the same way as
the parties’ pleadings do) to decide only the issues set out therein. In
particular, a party who agrees to claim only limited relief would be bound by
his agreement…’
[16] On the crisp issue before me, it being whether the Commissioner was bound
by the minute of the pre -arbitration meeting, the law is therefore clear.5 I
accordingly have no hesitation in rejecting the argument advanced on behalf
of AMCU to the effect that the Commissioner committed a reviewable
irregularity in limiting the issues he had to determine to only those identified in
the minute of the pre -arbitration meeting. Quite to the contrary, what could, in
my considered view, amount to a reviewable irregularity would be for a CCMA
commissioner to disregard the content of a minute of a pre-arbitration meeting
and determine an issue the parties have excluded from the purview of his
consideration.
[17] It is therefore my judgment that the Commissioner did not commit any
reviewable irregularity in determining only the two issues that were identified
in the minute signed by the parties at arbitration. The following passage in
South African Breweries (Pty) Ltd v Louw 6 should make the point even more
abundantly clear:
‘The chief objective of the pre -trial conference is to agree on limiting the
issues that go to trial. Properly applied, a typical minute – cum – agreement
will shrink the scope of the issues to be advanced by the litigants. This
means, axiomatically, that a litigant cannot fall back on the broader terms of
the pleadings to evade the narrowing effect of the terms of a minute. A
4 2000 (4) SA 645 LAC) at para 16,
5 See: Putco Limited v Transport And Allied Workers Union of South Africa and Another (J 2578/10)
[2015] ZALCJHB 42 (18 February 2015) at para 26. See also Kunene v Sithole NO and Others
(JR879/18) [2021] ZALCJHB 196 (27 July 2021) at para 16.
6 (2018) 39 ILJ 189 (LAC) at para 8.
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minute, quite properly, may contradict the pleadings, by, for example, the
giving an admission which replaces an earlier denial. When, such as in the
typical retrenchment case, there are a potential plethora of facts, issues and
sub-issues, by the time the pre -trial conference is convened, counsel for the
respective litigants have to make choices about the ground upon which they
want to contest the case. There is no room for any sleight of hand, or clever
nuanced or contorted interpretations of the terms of the minute or of the
pleadings to sneak back in what has been excluded by the terms of a
minute. The trimmed down issues alone may be legitimately advanced.
Necessarily, therefore, the strategic choices made in a pre -trial conference
need to be carefully thought through, seriously made, and scrupulously
adhered to. It is not open to a court to undo the laces of the strait -jacket into
which the litigants have confined themselves.’
[18] The above being the view I also take on the matter, I equally find no fault with
the Commissioner’s decision with regard to the two issues he was called upon
to determine. The inconsistency challenge was not pursued in argument
before me. I therefore need not entertain this aspect of the matter. The test on
review is trite,7 so is the fact that the threshold is extremely high.
[19] The Commissioner’s finding that dismissal was an appropriate sanction for the
misconduct committed by Botsheleng is, in my considered view, reasonable.
The Commissioner’s reasoning in justifying the decision he arrived at is, to
me, eminently sound.
[20] Accordingly, it is my conclusion that the Commissioner’s decision with regard
to the substantive fairness of Botsheleng’s dismissal cannot be said to be one
that that a reasonable decision -maker could not reach. The present
application for review must therefore fail.
[21] As for the costs of this application, I find no reason warranting the dismissal of
the application with costs against AMCU. Accordingly, and in the exercise of
my discretion, I make no order as to costs.
7 Taguzu v Commission for Conciliation, Mediation and Arbitration and Others (JR1785/18) [2023]
ZALCJHB 197 (27 June 2023) at para 9. See also: Nyathikazi v Public Health and Social
Development Sectoral Bargaining Council and Others [2021] 8 BLLR 778 (LAC) at para 21.
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[22] Therefore the following order is made:
Order
1. The application for review is dismissed.
2. There is no order as to costs.
________________
N P Voyi
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Adv L Hollander
Instructed by: LDA Attorneys Incorporated
For the Third Respondent: Adv M van As
Instructed by: Cliffe Dekker Hofmeyr Inc.