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[2024] ZALCJHB 224
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Association Of Mineworkers And Construction Workers Union obo Bosman v Commission for Conciliation, Mediation and Arbitration and Others (JR 1078/21) [2024] ZALCJHB 224 (16 February 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
No: JR 1078/21
In
the matter between:
ASSOCIATION
OF MINEWORKERS AND
CONSTRUCTION
WORKERS UNION (“AMCU”)
OBO
BOSMAN, B.H.
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
HENDRICK
OLIPHANT N.O.
Second Respondent
G4S
SECURE SOLUTION
Third Respondent
Heard:
11 January 2024
Delivered
:
16 February 2024 (This judgment was handed down
electronically by circulation to the parties’ legal
representatives by email,
publication on the Labour Court website and
release to SAFLII. The date and time for handing-down is deemed to be
10h00 on 16 February
2024.)
Summary: Review
proceedings – Application to review and set aside the
arbitration award made by the Second Respondent on 26
April 2021 in
which the Second Respondent found that the dismissal of the
Applicant, [Mr B.H. Bosman], was fair. Held – that
the Second
Respondent committed a gross irregularity when he failed to weigh all
the relevant evidence and the probabilities to
draw inferences and
made findings not justified on the evidence. Matter referred back to
the CCMA for determination afresh by a
commissioner other than the
Second Respondent
Held
– The Second Respondent misinterpreted the facts placed before
him and therefore did not
draw the correct inference.
The misconduct committed did not suit the punishment. Matter referred
back to the CCMA.
JUDGEMENT
SWANEPOEL, AJ
Introduction
[1]
This is an application to:
1.1
Review and set aside the arbitration award issued by the
Second Respondent dated 26 April 2021 under case number NC 2081/20.
1.2
Directing that the matter be referred back to the CCMA for
arbitration before a commissioner other than the Second Respondent.
1.3
Directing that such of the Respondents who oppose the relief
sought herein be ordered to pay the costs of the application
jointly
and severally, the one paying the other(s) to be absolved.
1.4
Granting the Applicants further or alternative relief.
[2]
The Third Respondent opposed the relief sought and requested that the
matter be dismissed.
The
facts
Applicant’s
submissions
[3]
The Applicant’s member, Mr B.H. Bosman was employed as a
security officer by the Third Respondent on 1 November
2019. At the
date of his dismissal on 17 August 2020, Bosman earned R 4 500,60 per
month.
[4]
On 3 July 2020, Bosman felt unwell as a result of a gastrointestinal
virus, however, he reported for duty as a result
of a shortage in
staff. Bosman requested that his supervisor bring him water, which
his supervisor failed to do.
[5]
Bosman was stationed at the red boom gate – some 2,5 km from
the main gate.
[6]
He did not have water with him and asked his supervisor to bring him
water. The supervisor collected him after some time
and took him to
the old farmhouse some 4 km away to get water.
[7]
When he was dropped off at his post, the supervisor left with the
water and his radio.
[8]
He contacted his supervisor but was told that he was busy.
[9]
He opted to go to the main gate rather than remain on duty at the
place where he was posted to perform his duties.
[10]
The customer informed the Third Respondent about this. Bosman was
charged with desertion and dismissed.
[11]
Aggrieved by his dismissal, the Applicants referred an unfair
dismissal dispute to the First Respondent. The matter was
set down
for a conciliation/arbitration (con/arb) process, neither party
objected to the process and after conciliation failed,
the Second
Respondent continued with the arbitration hearing.
[12]
The Second Respondent found the dismissal procedurally and
substantively fair, despite the procedure not having been
placed in
dispute.
[13]
The Applicant then approached this Court claiming that the Second
Respondent had neglected his duty as a reasonable commissioner
in
that he made serious errors in the assessment and application of the
evidence. The Second Respondent should have arrived at
a different
conclusion in favour of the Applicant.
Grounds
for review
[14]
The hearsay evidence – since this ground for appeal was
abandoned during argument of the matter, I do not intend
to deal with
that specific ground in this judgement.
[15]
The commissioner failed to consider and properly understand the
content of the evidence presented at the arbitration.
[16]
The commissioner failed to consider consistency in discipline. This
ground was amended in the supplementary affidavit
to read that the
commissioner failed to consider a less punitive sanction to that of
dismissal.
[17]
The commissioner failed to consider the mitigating factors prior to
the imposition of a sanction.
[18]
The award was on the whole unreasonable.
[19]
Therefore, the Second Respondent committed a serious transgression in
considering the law of evidence and no other reasonable
decision
maker would have come to the same or similar conclusion that the
Second Respondent reached.
The
Third Respondent’s contentions
[20]
The Third Respondent filed its answering affidavit, and its main
contention was that the application was nothing more
than an attempt
to argue that the Second Respondent’s findings were incorrect
given the Applicant’s construction of
the evidence and thus an
attempt at an appeal. It also contended that the Applicant had not
demonstrated a reviewable irregularity.
The Third Respondent
contended that the award was a correct finding of the facts before
the Second Respondent and was a reasonable
award.
[21]
Mr Beckenstrate argued, amongst others, that the Applicant altered
the basis of its first challenge as it no longer contended
that the
Second Respondent erred in taking hearsay evidence into account, and
for the first time in its argument introduced the
definition of
desertion of post as contained in the Code of Conduct of the Third
Respondent, and then contended that the Second
Respondent would have
concluded that the Applicant had a valid reason to leave his post.
[22]
He argued that this completely new basis for the Applicant’s
case was impermissible and should be dismissed. He
added that an
Applicant in a review application must make its case out in the
Founding and Supplementary Affidavit and that the
reviewing Court is
limited to deciding issues that are raised in the Applicant’s
affidavits.
The
arbitration process and award
[23]
The Second Respondent drafted an award containing a scant recital of
the evidence presented before him. In his analysis
of the facts, he
found that:
‘
1.
Afrika presented clear and concise evidence and that Bosman deserted
his post.
2.
He added that Africa conceded that it would not be safe to work
without a radio, and that;
3.
Bosman had told the client that he left because of the weather
conditions.’
[24]
He stated that it was contrary to Bosman’s version that he felt
sick, and that Bosman was responsible for his uniform.
[25]
He found that Bosman was not consistent and clear in his evidence
basing it on the fact that:
‘
1.
The Applicant’s representative did not disprove Africa’s
version that Bosman did not tell Afrika that he did
not feel well,
2.
That Bosman changed his defence to [one of] Kula taking the water and
the radio,
3.
That he left his post because he felt unsafe,
4.
That he regarded the above as contradictory to the original defence
and an afterthought to fabricate a defence.
5.
That Bosman ran three kilometres to the main gate which showed that
he deserted his post, drawing from this an inference
that Bosman
deliberately left his post and raised three defences to hide the
truth.’
Evaluation
[26]
The review
test by now is trite
[1]
.
The question to be asked by the review Court is whether the decision
reached by an arbitrator is one that no other reasonable
decision-maker may reach. Differently put, the decision falls outside
the bands of reasonableness. It is not about the correctness
of the
decision.
[27]
Mr Cook, on behalf of the Applicant, argued that the various factors
submitted by the Applicant in his evidence should
not have been
regarded as new defences raised but as factors listed to demonstrate
why the Applicant left his post and that there
was a difference
between leaving his post and deserting his post. He argued that the
Second Respondent never bothered to properly
comprehend whether the
individual had justification for leaving his post.
[28]
Mr Beckenstrate argued that the Applicant altered the basis of its
first challenge as it no longer contended that the
Second Respondent
erred in taking hearsay evidence into account, and for the first time
in its argument introduced the definition
of desertion of post as
contained in the Code of Conduct of the Third Respondent and then
contended that the Second Respondent
would have concluded that the
Applicant had a valid reason to leave his post.
[29]
It was his argument that this completely new basis for the
Applicant’s case was impermissible and should be dismissed.
He
added that an Applicant in a review application must make its case
out in the Founding and Supplementary Affidavit and that
the
reviewing Court is limited to deciding issues that are raised in the
Applicant’s affidavits.
[30]
I do take note that the definition of desertion was not part of the
Applicant’s stated grounds for review. However,
when
considering the content of the pleadings filed on behalf of the
Applicant, the evidence of the Applicant, which the Second
Respondent
took issue with was recorded in it.
[31]
The test
was defined by the LAC in
Gold
Fields Mining SA (Pty) Ltd v CCMA
[2]
,
where the Court formulated the following questions to determine
whether an award made by a commissioner was reviewable as follows:
31.1
In terms of his or her duty to deal with the matter with the
minimum of legal formalities, did the process that the
arbitrator
employed to give the parties a full opportunity to have their say in
respect of the dispute?
31.2
Did the arbitrator identify the dispute he was required to
arbitrate (this may only become clear after both parties
have led
their evidence)?
31.3
Did the arbitrator understand the nature of the dispute he or
she was required to arbitrate?
31.4
Did he or she deal with the substantial merits of the dispute,
and
31.5
Is the arbitrator’s decision one that another
decision-maker could reasonably have arrived at based on the evidence
presented?
[32]
The crisp question to be determined therefore is whether the Second
Respondent committed a gross irregularity when he
failed to weigh all
the relevant evidence and the probabilities of drawing inferences and
making findings not justified by the
evidence.
[33]
Tip AJ, in
Standard
Bank of SA Ltd v CCMA & Others
[3]
(1998) 19 ILJ 903 (LC) held that relief by way of review would be
available:
'[24]
Where a commissioner sitting as arbitrator has misconstrued oral or
documentary evidence, or has ignored or misapplied
relevant legal
principle, to an extent that is inappropriate or unreasonable, then
such commissioner has failed in the task under
the Act.’
[34]
This
approach was echoed in
Carephone
v Marcus NO & Others
[4]
(1998) 19 ILJ 1425 (LAC) where the test in this regard was succinctly
stated as follows:
'[24]
… is there a rational objective basis justifying the
connection made by the administrative decision maker between
the
material properly available to him and the conclusion he or she
eventually arrived at?'
[35]
Based on the above, and taking into account that which is about to
follow, it is clear that the Second Respondent did
not apply his mind
properly to the real facts placed before him.
[36]
The facts were as follows:
36.1
The Applicant went to work not feeling well and informed his
superior, Mr Zweli Kula that he was unwell,
36.2
He alerted Mr Kula that he had a runny stomach and that he
would not be able to stay alone, to which Mr Kula stated
that he
would not have to stay alone and that he would bring him water,
36.3
At approximately 23:50 he called Mr Kula enquiring where the
water was, Mr Kula fetched him and took him to the farmhouse
to get
water,
36.4
Upon their return to the boom gate, Mr Kula left him there and
drove off with his water and radio,
36.5
When he called Mr Kula, he was told that Mr Kula was busy
doing his work,
36.6
He decided that it was not safe for him and that he would go
to a safe place, and opted to go to the main gate,
36.7
Mr Kula followed the Applicant, drove past him, and went to
write a statement,
36.8
He had asked for water since 18:00,
36.9
It was dark and he worked without a proper uniform, wearing
his own clothes in the heart of winter.
[37]
The fact that the Second Respondent ignored these pertinent aspects
and regarded it as an indication that the Applicant
had not been
consistent and clear in his evidence and that the fact that he
contradicted his initial defence with the defence being
an
afterthought or fabrication demonstrated that the Second Respondent
committed a gross irregularity therein that he failed to
weigh all
the relevant evidence presented, the probabilities when drawing his
inferences and that his findings were not justified
by the evidence
presented.
[38]
Therefore, I hold that the Applicant’s second ground of review
must succeed.
[39]
The third ground of review, namely that the Second Respondent failed
to consider a less punitive sanction to dismissal
follows from the
finding on the second ground of review. It also resonated with the
fourth ground of review, ergo that the Second
Respondent failed to
consider the mitigating factors.
[40]
I interpose here to state that I do not agree with the way in which
the fourth ground of review was formulated. It is
never the duty of
the arbitrator to impose a sanction; it is the duty of the arbitrator
to consider whether the sanction imposed
was reasonable and suitable.
[41]
In the
Sidumo
matter referred to above, the Constitutional
Court (CC) held that the following pertinent factors should be
equally considered
(and weighed against each other) in determining an
appropriate sanction for the misconduct:
41.1
The nature and seriousness of the charge the employee found
guilty of.
41.2
Whether progressive discipline can be utilised to transform
the incorrect conduct.
41.3
The harm or potential harm caused by the employee’s
conduct.
41.4
The effect of dismissal on the employee.
41.5
Whether additional training and instruction may result in the
employee not repeating the misconduct.
41.6
The employee’s disciplinary record and length of
service.
41.7
The presence or absence of dishonesty in the employee’s
conduct.
41.8
Whether the employee admitted the misconduct or disputed it
and, if the employee disputed it, whether the employee behaved
dishonestly or inappropriately in doing so.
41.9
Whether the misconduct is serious and makes a continued
employment relationship intolerable; however,
41.10
This list is not exhaustive.
[42]
Hence, it was the role of the arbitrator to weigh the above-mentioned
factors in deciding whether the sanction imposed
met the criteria.
[43]
The Second Respondent misinterpreted the facts placed before him. The
Second Respondent subsequently did not draw the
necessary inferences
that the misconduct did not suit the punishment meted out. The
particular circumstances that led to the Applicant
abandoning his
post played a vital role in his decision to not remain at the gate
where he had been posted, and that should have
been taken into
account. The Applicant is not entirely blameless, but a sanction
short of dismissal would have sufficed.
[44]
For the reasons set out above, I believe that the award must be set
aside.
[45]
Accordingly, I make the following order:
Order
1.
The arbitration award of the Second Respondent is reviewed and set
aside.
2.
The matter is referred back to the CCMA for arbitration before a
commissioner other than the Second Respondent.
3.
I make no order as to costs.
A.H.
Swanepoel
Acting
Judge in the Labour Court of South Africa
Appearances
For
the Applicant:
Adv A.L. Cook
Instructed
by:
Larry Dave Incorporated Attorneys
For
the Third Respondent:
Mr C. Beckenstrate
Instructed
by:
Moodie and Robertson Attorneys
[1]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] ZACC 22
; (2007) 28 ILJ 2405 (CC).
[2]
[2014] 1 BLLR 20
(LAC);
[2013] ZALAC 28
at para 14.
[3]
(1998)
19 ILJ 903 (LC) at para 24.
[4]
(1998) 19 ILJ 1425 (LAC);
[1998] ZALAC 11.