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[2024] ZALCJHB 71
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Rocla (Pty) Ltd - Virginia Branch v Commission for Conciliation, Mediation and Arbitration (JR2305-17) [2024] ZALCJHB 71 (21 February 2024)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
No:
JR2305/17
In
the matter between:
ROCLA (PTY) LTD –
VIRGINIA BRANCH
Applicant
and
COMMISSION FOR
CONCILIATION MEDIATION
AND
ARBITRATION (CCMA)
First Respondent
COMMISSIONER
DIPHOKO, S
Second Respondent
ASSOCIATION
OF MINEWORKERS AND
CONSTRUCTION
UNION (AMCU) obo T.M DINGINDLELA Third Respondent
THEMBIKHAYA MAX
DINGINDLELA
Fourth Respondent
Heard
:
6 July 2023
Delivered
:
21 February 2024
JUDGMENT
MAKOPO, AJ
Introduction
[1]
This is an
application brought in terms of Section 145 of the Labour Relations
Act
[1]
(the LRA). Rocla (Pty)
Ltd – Virginia Branch (the Applicant) is seeking to review and
set aside an arbitration award (the
Arbitration Award) issued by
Commissioner Diphoko S. (N.O) (Diphoko) on 2 September 2017.
1.1
Diphoko awarded the reinstatement for the Fourth Respondent–
Thembikhanya Max Dingindlela (the Employee).
1.2
Diphoko ordered the company to back-pay the Employee in the
amount of R 31 387.56.
1.3
This application is duly opposed by the Association Union of
Mineworkers and Construction Union (AMCU) (Third Respondent)
and
Thembikhanya Max Dingindlela (Fourth Respondent).
1.4
The Applicant did not appear at the hearing of the matter when
the matter was called at 10h00.
1.5
I allowed the matter to stand down for the Third and Fourth
Respondents’ Attorney to call the Applicant’s
representatives as they had filed all the required documents. At
11h05 when the matter was called again, there was still no appearance
for the Applicant, and no explanation or any indulgence sought from
the court for the non-appearance.
1.5
Advocate Cook, counsel for the Third and Fourth Respondents
presented his argument on behalf of the Respondents.
Background
facts
[2]
The facts pertaining to the present dispute are to a large degree,
common cause. Mr Dingindlela was employed by the Applicant
as a
welder from 11 August 2014. He earned R15.00 per hour and worked 45
hours per week.
2.1 He was
notified to attend a disciplinary hearing on the 15
th
of
August 2016 in respect of the following charges:
2.1.1 Gross
insolence in that on Friday the 29
th
of July 2016, you
acted disrespectfully by disrupting a meeting held by Management with
the workforce regarding wages.
2.1.2 Gross
insolence and/or gross misconduct in that on Friday, the 29
th
of July 2016, you incited a co-employee to follow you when you left
the meeting held by Management, whilst management was still
busy with
the meeting.
2.1.3 Gross
insolence in that on Friday the 29
th
of July 2016, you
acted disrespectfully, arrogantly and aggressively towards Management
when you were called to be handed a Notice
of Suspension by shouting,
using an aggressive tone of voice, waving your arms and pointing at
Management.
2.1.4 Gross
insolence in that on Friday, the 29
th
of July 2016, you
acted arrogantly when you threatened Management that you would take
them to the CCMA.
2.1.5 At the
disciplinary hearing the Fourth Respondent was found guilty as
charged. He was dismissed on the 16
th
of August 2016.
[3]
The Employee referred his unfair dismissal dispute to the CCMA for
Adjudication. The award was issued on the 2
nd
of September
2017. The Commissioner found in paragraph 79 of the award based on
the submissions before me, I find that the Respondent
discharged his
onus that the Applicant’s dismissal was procedurally fair.
3.1
The Commissioner in paragraph 104 of the Award, made the
following order: “
I am satisfied that the dismissal of the
Applicant was both procedurally and substantially unfair”
.
Grounds
of review
[4]
The Applicant contends that Diphoko failed to properly apply her mind
and there were gross irregularities (as she failed
to consider the
evidence before her and came to a conclusion which no reasonable
decision-maker could have made in reinstating
the Employee).
Evaluation
[5]
Advocate Cook submitted that the arbitration hearing is a
de novo
hearing, and new evidence can and often is brought in at this stage.
He submitted that whilst there is an apparent contradiction
in the
award (i.e., paragraphs 79 and 104 of the award) it does not render
the award unreasonable or reviewable. He submitted that
the Applicant
is nit picking at each and every piece of evidence that was led.
5.1 It is clear
from the record of the proceedings that the Fourth Respondent is not
the person who first said that they
should leave the meeting and in
fact was not the first person to leave the meeting, it is apparent
that Mr Combrink did not take
kindly to being challenged/questioned
by the Fourth Respondent and refused to address the concerns raised
by the workers, and some
hours later he issued a disciplinary letter
to the Fourth Respondent who then asked why he was given a suspension
letter.
5.2 Mr Cook
submitted that the court is called to find whether the decision
rendered by the Commissioner is a reasonable
decision that a
decision-maker could have made.
5.3 It is trite
law that the review court must consider when called upon to review
and set aside an arbitration award in
terms of Section 145 of the
LRA.
[6]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[2]
,
the court held “
A
review court must ascertain whether the arbitrator considered the
principal issue before him/her, evaluated the facts at the hearing
and came to a conclusion which was reasonable to justify the
decisions he or she arrived at”
.
[7]
In
Makuleni
v Standard Bank of South Africa Ltd and Others
[3]
,
the test for review and setting aside an award of the CCMA is based
upon the decision reached by the Commissioner, is one that
no
reasonable person could have reached.
[8]
The Arbitrator listened to voice recordings submitted by the parties
and accepted the evidence led in respect of those
recordings, I pause
to note that those recordings were not before me and were never
discovered by the Applicant.
[9]
The two critical issues to be decided by the Commissioner were
credibility and the reliability of the evidence presented
before her.
She accepted on the evidence of the recordings, that the Fourth
Respondent was not the person who uttered the words
“
Let’s
rather leave”
first, but there was a voice of a person who
said “
Let’s rather leave”
after Mr Combrink
stated he was not going to answer questions related to the workers’
salary adjustment.
[10]
The Commissioner was conscious that the onus rested on the Applicant
(the Company) to prove its case.
Costs
[11]
Advocate Cook argued that the Applicant given their conduct and the
nature of the papers filed, I should order that they
should pay the
costs of this application in the event I find in the Respondents’
favour.
[12]
In my view, I am satisfied that the award is unassailable on the
grounds in Section 145 of the LRA.
[13]
In the result, I make the following order:
Order
1.
The application for review is dismissed with costs.
N. Makopo
Acting
Judge of the Labour Court of South Africa
Appearances
For the
Applicant:
No appearance
For the 3
rd
and 4
th
Respondent: Advocate A. Cook
Instructed
by:
LDA Inc. Attorneys
[1]
Act
66 of 1995, as amended.
[2]
[2013]
ZALAC 28
;
(2014)
35 ILJ (LA
C
)
at para 16.
[3]
[2023]
ZALAC 4
;
[2023]
4 BLLR 283
(LAC) at para 2.