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[2024] ZALCJHB 186
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Exxaro Coal Mpumalanga (Pty) Ltd (Malta Coal) v Commission for Conciliation, Mediation and Arbitration and Others (JR1288/21) [2024] ZALCJHB 186 (29 April 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR1288/21
In
the matter between:
EXXARO
COAL MPUMALANGA (PTY) LTD
(MATLA
COAL)
Applicant
And
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
NKGOENG
W.N.
N.O.
Second
Respondent
MOKGWABONE,
A
Third
Respondent
Heard:
25 April 2024
Delivered:
29 April 2024
This
judgment was handed down electronically by circulation to the parties
and legal representatives by email. The date and time
for hand-down
is deemed to be 29 April 2024.
JUDGMENT
MAKHURA,
J
Introduction
[1]
Exxaro Mine
Mpumalanga (Pty) Ltd (company) launched this application in terms of
section 145 of the Labour Relations Act
[1]
(LRA) to review and set aside the arbitration award (award) issued by
the second respondent (commissioner) on 19 May 2021. In terms
of the
award, the commissioner found the dismissal of the third respondent
(employee) to be substantively unfair and ordered reinstatement,
without back pay..
[2]
The application is opposed by the employee. The employee’s
answering affidavit was delivered three months late. He seeks
condonation for the late delivery of his answering affidavit.
[3]
In terms of
item 11.4.2 of the Practice Manual
[2]
,
where the applicant does not object to the late delivery of the
answering affidavit within 10 days of receipt of the answering
affidavit, it is not necessary for the respondent to apply for
condonation. The applicant did not object to the late delivery of
the
answering affidavit. Therefore, there was no need for the employee to
apply for condonation.
Material
facts
[4]
The facts leading to the dismissal of the employee are
largely
uncontested. The employee was employed by the company as a Plumber
Artisan. He reported to Ferdinand Malcolm Pieterse (Pieterse),
the
Maintenance Foreman. He was charged with one allegation of misconduct
– unauthorised possession of company property in
that on 22
April 2019, he removed the company’s items without permission.
[5]
It is common cause that on 22 April 2019, the employee
was seen by
Caiphus Mbedzi (Mbedzi) loading 12.5 kg of sugar, a box of Five Roses
Tea and powdered milk on a golf cart. Mbedzi
was going to the store
room when he saw the employee. The employee, so Mbedzi testified, was
with another colleague, Lucia Riba.
After loading the items, they
drove off. The employee was operating the golf cart.
[6]
Mbedzi did not speak to the employees and proceeded to
the store
room. In the store room, he found Fortune Maimela (Maimela). Maimela
was employed as a spray painter. Mbedzi asked Maimela
about the items
that were being loaded on the golf cart and where the employee and
Riba were taking them to. Maimela was allegedly
aggressive and
essentially told him that he did not know. Mbedzi left Maimela and
continued with his duties.
[7]
On 23 April 2019, Mbedzi reported the incident to his
line manager.
The line manager then called Mbedzi and Maimela to explain the
incident. Maimela apologised to Mbedzi for the manner
in which he
spoke to him the previous day and informed Mbedzi and his line
manager that the items that were loaded by the employee
belonged to
him.
[8]
Mbedzi’s evidence was that he did not know where
the items came
from and where they were delivered. He however testified that when
items are moved from one area to another, there
must be permission in
writing signed by the senior or manager.
[9]
The second witness for the company was Pieterse. He testified
that he
was the complainant during the disciplinary hearing and that he was
the employee’s direct supervisor. He was not
at work on 22
April 2019 and therefore could not testify about the incident.
[10]
Pieterse’s evidence of his relationship with the employee was
as follows:
‘
APPLICANT
REP:
Your
understanding and relation of him, is he a good employee, a bad
employee?
MR
PIETERSE:
He
is a good employee.
APPLICANT
REP:
Did
these actions ruin the trust relationship between you to a point
that you can never trust him again?
PIETERSE:
No.
APPLICANT
REP:
So
you still trust him as an employee, he is still a capable
employee.
PIETERSE:
Yes
I do.
APPLICANT
REP:
Still
trustworthy, you would still trust his word if he spoke to you and
he said maybe I am sick today, I cannot come to work
today,
because I am sick, would you trust it?
PIETERSE:
Yes.’
[11]
Later on in his evidence, Pieterse was asked about his view should
the employee
be found to have removed the items without permission
again, even if he was not aware that there was no permission granted
to move
the items. His response was that this would ruin the
relationship and he would not trust the employee.
[12]
The employee’s evidence was that he worked for the company for
about
15 years. On 22 April 2019, whilst driving past the central
engineering section where Maimela worked, Maimela called and asked
him to load the items and deliver them to the car park. He obliged,
loaded the items and delivered them as requested. He then continued
with his normal duties. He said that had he known that Maimela was
not allowed to ask him to move the items, he would not have
moved
them. He testified that the job cards are issued when big items such
as furniture are removed from the company premises.
[13]
The commissioner found that:
‘
Probabilities are
that the applicant removed items belonging to the company without
authorisation. I am saying so because it was
not disputed that he is
the one who loaded them on the gold (sic) cart and took them to the
car park. However, the applicant disputed
the involvement of Lucia.
According to him, he was alone when the incident happened. This is
contrary to an attempt by Mr. Mahlangu,
his representative, to ambush
the respondent by introducing inconsistent (sic) at the 11
th
hour, which I have declined.
However, even if I accept
the respondent’s contention and conclude that the applicant is
guilty as charged, it does not automatically
end my enquiry into the
fairness of the dismissal.’
[14]
The commissioner found that the employee did not suspect any foul
play on the
part of Maimela and that he did not collude with Maimela
to defraud the company. The commissioner then concluded that
dismissal
was not an appropriate sanction.
Review
grounds
[15]
The company contends that the commissioner committed misconduct and
gross irregularities
and failed to apply his mind in his
determination of the issues in dispute and thereby denied the company
of its right to a fair
hearing.
[16]
Specifically, the company criticised the commissioner’s
findings that
there was no collusion. Further, the company contends
that the employee contradicted himself insofar as it was alleged that
he
was with Riba on the day of the incident and that the commissioner
failed to take this contradiction into account in his assessment
of
the appropriateness of sanction.
[17]
The company further contends that the commissioner misconstrued
Pieterse’s
evidence and failed to apply his mind to the
totality of facts and circumstances relating to the dismissal.
The
review test
[18]
The test to
review an award is set out in
Sidumo
and
Another v Rustenburg Platinum Mines Ltd and Others.
[3]
The commissioner’s award is reviewable if it is “
one
that a reasonable decision maker could not reach”
.
[4]
The Labour Appeal Court (LAC) held that this is a stringent test that
will ensure that awards are not lightly interfered with.
[5]
[19]
Numerous
judgments subsequently expanded on this test.
[6]
In
Duncanmec
(Pty) Ltd v Gaylard NO and others
[7]
,
the Constitutional Court clarified that:
‘
[42]
This test means that the reviewing court should not evaluate the
reasons provided by the arbitrator
with a view to determine whether
it agrees with them. That is not the role played by a court in review
proceedings. Whether the
court disagrees with the reasons is not
material.
[43]
The correct test is whether the award itself meets the requirement of
reasonableness. An award
would meet this requirement if there are
reasons supporting it. The reasonableness requirement protects
parties from arbitrary
decisions which are not justified by rational
reasons.’
[20]
In
Makuleni
v Standard Bank of South Africa Ltd and Others
,
[8]
the LAC, reaffirming the
Mofokeng
decision above, also reminded the reviewing court not to act as a
court sitting on appeal:
‘
[4]
… The court asked to review a decision of commissioner must
not yield to the seductive
power of a lucid argument that the result
could be different. The luxury of indulging in that temptation is
reserved for the court
of appeal. At the heart of the exercise is a
fair reading of the award, in the context of the body of evidence
adduced and an even-handed
assessment of whether such conclusions are
untenable. Only if the conclusion is untenable is a review and
setting aside warranted.’
Evaluation
[21]
To prove the charge of unauthorised possession of company property,
the company
had to establish that the employee was (1) in possession
of a property (2) that belonged to the company and (3) that he was
not
permitted or allowed to be in such possession or that he did not
possess the necessary authority or permit.
[22]
Properly construed, the company’s gripe with the award is that
the commissioner
should have found that there was collusion between
the employee and Maimela and that the sanction of dismissal was
justified and
fair. There is no merit in this contention. First, the
charge against the employee speaks for itself. Second, there was no
evidence
that established any collusion. Third, the complaint is
against the commissioner’s reasoning.
[23]
The issue before the commissioner and the evidence presented are not
complicated.
The company had to justify the employee’s
dismissal based on the reason it gave at the disciplinary hearing,
and that reason
was unauthorised possession of the company property.
These review proceedings are limited to the issues raised and
evidence led
at arbitration proceedings.
[24]
The evidence led at arbitration proceedings established that the
employee,
on request by Maimela, loaded the items and delivered them
to the car park, as per Maimela’s request. Maimela, according
to the company’s evidence, informed Mbedzi and his line manager
that the items belonged to him. There is no evidence to suggest
that
the items did not belong to Maimela and that the employee was aware
of this fact. Both Mr Maeso for the company and Mr Groenewald
for the
employee agreed that there was no evidence before the commissioner to
prove ownership of the items.
[25]
On the evidence before the commissioner, the items, according to
Mbedzi’s
evidence, belonged to Maimela. The onus was on the
company to prove ownership. It failed to do so. The employee cannot
therefore
be found guilty of the charge.
[26]
Even if the items did not belong to Maimela and it is accepted that
they belonged
to the company, as it appears to have been assumed in
this case by the commissioner, there was no evidence to establish
that the
employee removed the items with full knowledge that they
belonged to the company and not Maimela, and significantly, that
Maimela
was not authorised to remove them.
[27]
The employee did not dispute that he was in possession of the items.
Even if
the possession was unauthorised, on the facts and evidence, I
see no reason to interfere with the commissioner’s decision
that the sanction of dismissal is not appropriate. The commissioner
understood the enquiry before him. His decision is supported
by
reasons. The commissioner was persuaded that the employee did not
suspect foul play and that he was not acting in collusion
with
Maimela. Further, the direct evidence of Pieterse was that the
actions of the employee did not ruin their relationship and
that the
employee is still trustworthy. It is immaterial whether this Court
agrees with the commissioner or not or that another
decision-maker
could have found differently.
[28]
The decision reached by the commissioner falls within the bands of
reasonableness.
The application stands to be dismissed
[29]
In the premises, the following order is
made:
Order
1.
The review application is dismissed.
2.
There is no order as to costs.
M.
Makhura
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr.
M.G. Maeso of Shepstone & Wylie
For
the Third Respondent:
Adv.
D.J. Groenewald
Instructed
by:
Cronje
De Waal-Skhosana Inc.
[1]
Act
66 of 1995, as amended.
[2]
Practice Manual of the Labour Court of South Africa, effective 1
April 2013.
[3]
[2007] ZACC 22
; (2007) 28 ILJ 2405 (CC).
[4]
Ibid
at
para 110.
[5]
Fidelity
Cash Management Services v Commission for Conciliation, Mediation
and Arbitration and Others
[2007] ZALAC 12
; (2008) 29 ILJ 964 (LAC) at para 100.
[6]
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
(2013)
34 ILJ 2795 (SCA);
[2013] ZASCA 97
at para 25;
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[2013] ZALAC 28
; (2014) 35 ILJ 943 (LAC) at paras 16 – 20;
Head of
the Department of Education v Mofokeng and Others
[2014] ZALAC 50
; (2015) 36 ILJ 2802 (LAC) at paras 31 – 33;
South
African Rugby Union v Watson and Others
[2018] ZALAC 57
; (2019) 40 ILJ 1052 (LAC).
[7]
(2018) 39 ILJ 2633 (CC);
[2018] 12 BLLR 1137
(CC) at paras 42 - 43.
[8]
[2023] ZALAC 4
; (2023) 44 ILJ 1005 (LAC) at para 4.