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[2024] ZALCJHB 75
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NUMSA obo Mapomav v Videx Mining Products (Pty) Ltd (JR2341-19) [2024] ZALCJHB 75 (21 February 2024)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
No: JR 2341/19
In
the matter between
NUMSA
OBO LUNGI MAPOMA
Applicant
and
VIDEX
MINING PRODUCTS PTY LTD
First Respondent
THE
METAL AND ENGINEERING INDUSTRY
BARGAINING
COUNCIL
Second Respondent
T.S
MNISI N.O
Third Respondent
Heard:
04 July 2023
Delivered:
21 February 2024
JUDGMENT
MAKOPO, AJ
Introduction
[1]
This is an opposed review application. There are two main grounds
submitted by the Applicant for review:
1.1
That the rule was not consistently complied with by the First
Respondent.
1.2
That the sanction of dismissal was not appropriate.
Background
[2]
Mr Mapoma was dismissed in November 2018, following the
charges of assault levelled against him, wherein he assaulted his
manager
Mr Komane.
[3]
Mr Tumisho Manasoe, an attorney appeared on behalf of the
Applicant and Advocate Pienaar appeared on behalf of the Respondent.
[4]
Mr Mapoma commenced employment with the Respondent on the 26
th
of January 2011. At the time of his dismissal, he was employed as a
welder, earning R 2 580.08 per week. He was charged with the
following offence:
4.1
Assault, causing or attempting to cause grievous/ bodily harm to the
Manager, Mr B Komane on the 28
th
of September 2018, in the
production office.
[5]
The arbitrator heard evidence of all the
witnesses, the Third Respondent led evidence of 3 witnesses and Mr
Mapoma was the only
witness to testify in support of his case.
[6]
The essence of the dispute arose when Mr
Mapoma refused to sign a training sheet.
6.1
Mr Nyembe then reported Mr Mapoma to Mr
Komane (Production Manager).
6.2
Mr Komane informed Mr Mapoma that refusing to sign a training sheet
and the importance of signing the training sheet.
6.3
Mr Mapoma asked Mr Komane not to point his finger at him, Mr Komane
then apologised to Mr Mapoma for using his hands to communicate
with
him.
6.4
Mr Mapoma despite Mr Komane apologising for pointing his finger at
him, he then stood up and punched him on his face, when Komane
asked
why he was punching him, he assaulted him again, and sustained
injuries as a result of the assault.
6.5
The version of Mr Komane was corroborated by Mr Nyembe.
[7]
Mr Mapoma testified that he was provoked by
Mr Komane and that this is the reason he assaulted him.
[8]
Mr Mapoma clearly assaulted a Senior
Manager without any justification for his conduct.
[9]
The Arbitrator found:
9.1
The dismissal of the Applicant (Mapoma
Lungi) is substantively fair.
[10]
It is not in dispute that Mr Mapoma admits
to assaulting Mr Komane, but alleged that he had been provoked by Mr
Komane.
Analysis and the law
[11]
It was accepted that like any misconduct in
the workplace, dismissal is not the only solution and that every case
must be decided
on its own facts.
[12]
The Arbitrator found on the evidence
presented to him that there was no assault on Mr Mapoma by Mr Komane
and therefore, found the
Respondent was consistent in applying its
rule relating to assault.
[13]
The Arbitrator also had regard to
appropriateness of the sanction imposed, and the dismissal that was
fair.
[14]
In
Lonmin
Mine v Commission for Conciliation, Mediation and Arbitration and
others
[1]
,
the inconsistency and principles of the law were discussed by Deane
AJ.
14.1
It is not in dispute that Mr Mapoma by assaulting Mr Komane broke the
rule, what is in dispute is that Mr Komane also broke the
rule.
[15]
The legal principles are clear that where
there is an allegation of discipline being applied inconsistently by
an employee, it is
incumbent on the employee alleging the
inconsistency to lay a credible basis for this claim and not a mere
unsubstantiated allegation.
[16]
Mr Mapoma did not discharge the evidentiary
burden that rested on him to provide at least
prima
facie
evidence to show the existence of
the inconsistency, in the proceedings before the Commissioner, and
which would have put the duty
on the Applicant to answer the same,
simply put, Mr Mapoma did make out a case of inconsistency in law.
[17]
In arriving at a decision on whether or not
the dismissal is fair, a Commissioner must exercise a value
judgement.
17.1
In exercising the value judgement, the
Commissioner needs to take into account all the circumstances of the
case, including the
importance of the rule that was breached and the
reasons why the employer imposed the sanction of the dismissal.
[18]
Mr Mapoma committed a serious misconduct by
assaulting his Manager, Mr Komane
.
[19]
I am of the view that the Third Respondent
took into account the seriousness of the misconduct and reconciled
that with the sanction
imposed.
[20]
In the premises, I make the following
order:
Order
1.
The application for review is dismissed.
2.
There is no order as to costs
N Makopo
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Mr Tumisho Manasoe
of Letsholo Manasoe
Attorneys
For
the Respondent:
Adv
Morne Pienaar
Instructed
by:
Kruger
Wilkens Attorneys
[1]
[2022] JOL 52944
(LC).