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[2013] ZALAC 34
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NUMSA obo Sinuko v Powertech Transformers (DPM) and Others (CA16/2012) [2013] ZALAC 34; [2014] 2 BLLR 133 (LAC); (2014) 35 ILJ 954 (LAC) (2 December 2013)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: CA16/2012
In
the matter between:
NUMSA
obo JONGIKHAYA CHRIS
SINUKO Appellant
and
POWERTECH
TRANSFORMERS
(DPM) First
Respondent
DANIEL
DU
PLESSIS Second
Respondent
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
(“MEIBC") Third
Respondent
Coram:
WAGLAY JP; TLALETSI ADJP; COPPIN AJA
Heard:
21 May 2013
Delivered:
02 December 2013
Summary:
Jurisdiction- the nature of the dispute is determined from the facts
of the case and not by the employee’s characterisation
thereof.
While jurisdiction is initially assumed on the basis of what the
employee alleges the reason for the dismissal to be,
if it
subsequently becomes apparent that the reason is different and one in
respect of which the arbitrator does not have jurisdiction,
the
arbitrator shall not determine the merits of the dispute, but allow
the dispute to be referred to the forum with jurisdiction
for
determination. Caution must be exercised before concluding that the
dispute is one in respect of which the arbitrator does
not have
jurisdiction. The true nature of a dispute may only become apparent
after all the evidence is in.
The
Labour Appeal Court’s power to decide grounds of review not
dealt with by the Labour Court- the power is similar to the
power of
the Supreme Court Of Appeal- is derived from
s174
of the
Labour
Relations Act, No. 66 of 1995
- and is to be exercised sparingly, with
consent of the parties for convenience, or if there has been a delay
and a referral back
to the Labour Court will result in further
inordinate delay in the finalisation of the matter, or if it is
otherwise in the interests
of justice to decide such grounds.
JUDGMENT
COPPIN
AJA
[1]
This is an appeal against a judgment of
Van Voore AJ in the Labour Court, setting aside an award made by the
second respondent (i.e.
the arbitrator) in favour of the appellant’s
member Jongikhaya Chris Sinuko (“Sinuko”) on the basis
that the
third respondent had no jurisdiction to arbitrate the
dispute. The court a quo also ordered Sinuko to pay the first
respondent’s
costs, such costs being limited to the costs of
hearing the application for review and the drafting of heads of
argument. The court
a quo also remitted the matter back to the third
respondent for determination before a different arbitrator. The
appellant came
before this Court with the leave of the court a quo.
[2]
As stated, the court a quo upheld the
review on one point, namely jurisdiction, but did not address the
merits of the review. Accordingly,
the two main issues that arise for
determination in this Court is, firstly, whether the court a quo
correctly held that the second
respondent ought to have found that he
had no jurisdiction to arbitrate the dispute before him and secondly,
whether this Court
may and should consider the other grounds of
review (i.e. the merits of the review) even though it was not
considered by the court
a quo. These issues will be addressed in turn
after a brief sketch of the background and salient facts of this
matter.
[3]
It was not
disputed that Sinuko was employed by the first respondent as a tank
fitter in its engineering business. He commenced
his employment on or
about 1 June 1997 and worked continuously for the first respondent
until his dismissal, due to an incident
that occurred at the first
respondent’s premises involving, principally, Sinuko and a
supervisor of the first respondent,
Elliot Johnson (“Johnson”).
[4]
The appellant and Johnson also happened
to be members of different unions. Johnson was a member of MEWUSA
whilst Sinuko was a member
of the appellant (“NUMSA”).
Sinuko’s dismissal occurred on 29 September 2009 following upon
an internal disciplinary
hearing for which he was charged with
alleged misconduct arising from the incident of 15 June 2009.
[5
]
There are slight differences in the
versions regarding the finer details of that incident, but the main
features were common cause.
It was not disputed that Sinuko had
injured his finger and had been to the company nurse for treatment.
He had been booked-off
sick for the day, before leaving the workplace
he was wheeling a trolley, carrying his tools, to the prep-room. He
was not wearing
a helmet at the time. Johnson confronted him, stopped
the trolley with his foot and enquired why Sinuko was not wearing a
helmet.
Sinuko’s response was in issue. Sinuko said that he
told Johnson that he was on his way home. Johnson’s version, in
essence, was that Sinuko snubbed him, asked why he had to wear a
helmet and then told Johnson that he was not ‘Simemo’,
referring to a former work colleague who had been dismissed after an
incident involving that colleague and Johnson. According to
Johnson,
Sinuko only told him as he was entering the
prep-room that he was going home and Johnson told Sinuko why he had
not said so in the
first place.
[6]
Johnson’s version further was that
Sinuko was aggressive and kept on confronting him pointing at him
with his finger telling
him that he was not ‘Simemo’.
Johnson testified that Sinuko indicated with his fingers that he was
going to shoot Johnson.
Johnson interpreted this as a threat.
According to Johnson, while he was on the telephone, Sinuko came into
his office and told
him that he was not ‘Simemo’ and that
Johnson would see what would happen.
[7]
It is not disputed that efforts were
made by a co-employee to resolve the matter. The incident ended after
Johnson tried to prevent
Sinuko, who was with a friend, work
colleague and fellow-member of NUMSA, one Wayne Fredericks, from
leaving the work premises.
Sinuko denied threatening Johnson and said
that he always spoke with his hands. Johnson on the other hand
testified that during
the confrontation he had warned Sinuko not to
threaten him. Sinuko denied confronting Johnson and said that it was
Johnson that
provoked him.
[8
It was also not disputed that Sinuko
then left the premises and when he reported for duty the next day he
heard that disciplinary
steps were to be taken against him. However,
Sinuko continued to work until his dismissal and there were no
further incidents between
him and Johnson.
[9]
Arising from the incident of 15 June
2009, Sinuko was charged with two counts of misconduct, namely, with
gross insubordination
and physically threatening a supervisor
(Johnson). He was found guilty on both counts and dismissed on 29
September 2009.
[10]
The appellant, on behalf of Sinuko,
referred an unfair dismissal dispute to the third respondent for
conciliation. As the dispute
remained unresolved a certificate was
issued to that effect and the matter was referred to arbitration
before the second respondent,
acting under the auspices of the third
respondent.
[11]
At the arbitration hearing, Johnson,
Messrs. Jeffrey Solomons and Ronald Fisher, who allegedly witnessed
aspects of the incident
of 15 June 2009, gave evidence on behalf of
the employer, the first respondent. Mr Leon Harmsen (“Harmsen”),
who had
led evidence on behalf of the employer at the disciplinary
hearing and who sought Sinuko’s dismissal, also gave evidence
on behalf of the employer at the arbitration hearing. Sinuko gave
evidence himself and called Wayne Fredericks as a witness.
[12]
Having analysed and considered the
evidence, the second respondent concluded, inter alia, that the
employer’s witnesses excluding
Harmsen, ‘were rather
economical with the truth’ and sought to support Johnson’s
version; that even though Sinuko’s
statement to Johnson that he
was not ‘Simemo’ could have been seen by Johnson as a
threat - the evidence did not support
‘verbal abuse’;
that Johnson must have done something to provoke Sinuko which caused
Sinuko to become angry and ‘behave
in a manner that has not
been seen in almost 18 years of working’ at the first
respondent; that the first respondent’s
disciplinary code
indicated that ‘insolence and/or using abusive and/or insulting
language’ towards fellow employees
and a refusal to carry out
lawful instructions, or perform duties, carries, as a suggested
sanction for a first offence, a final
written warning and thereafter,
dismissal with notice; Harmsen was the only one who testified that
the employment relationship
between Sinuko and the first respondent
had broken down, but his evidence in that regard was not convincing;
that in the circumstances
the dismissal was not a fair sanction and
was not for a fair reason; that the written warning valid for 12
months should have been
an appropriate sanction. Second respondent
accordingly ordered the first respondent to re-instate Sinuko on the
same terms and
conditions that governed their employment relationship
prior to Sinuko’s dismissal and ordered that Sinuko reports for
duty
on 5 April 2010. Further, that the re-instatement was subject to
a final written warning being given to Sinuko due to ‘threatening
behaviour’ and the warning was to expire on 4 April 2011. The
second respondent also ordered the first respondent to pay
Sinuko
remuneration in the amount of R28 751,80 (less all normal deductions)
by 5 April 2010. The award was issued on 22 March
2010.
[13]
The
first respondent brought an application in the court a quo to review
the award. One gleans from the founding affidavit that
the first
respondent sought to review the award on several grounds, but they
related only to the merits. No grounds were raised
in the founding
papers with regard to the jurisdiction issue. However, it appears
from the judgment of the court a quo that it
was contended there, on
behalf of the first respondent, that the real reason for Sinuko’s
dismissal was victimisation and
that the arbitrator ought therefore
to have found that he did not have jurisdiction to determine the
dispute. The court a quo seems
to have accepted a contention by the
first respondent that when Sinuko raised the issue of ‘union
victimisation’, the
second respondent was supposed to stop the
proceedings and advise Sinuko and the appellant that the matter ought
to have been referred
to the Labour Court. The court a quo made
reference to two decisions, namely, Chuma and Giflo Engineering (BOP)
(Pty) Ltd
[1]
and Cusa v Tao Ying Metal Industries and Others
[2]
and concluded, without any express, or illustrative, reasoning, that
in its view the second respondent’s approach in relation
to the
jurisdictional issue constituted a gross irregularity as contemplated
in s 145 of the Labour Relations Act 66 of 1995 (‘the
Act’).
The court a quo then proceeded to make the order which I mentioned in
the first paragraph of this judgment.
[14]
The fallacy in the judgment of the court
a quo lays in the fact that it referred the matter back to the third
respondent despite
having found that the second respondent ought to
have found that it had no jurisdiction to deal with the dispute. If
it was indeed
the finding of the court a quo that the true nature of
the dispute was victimisation, because of Sinuko’s union
membership,
then it was inappropriate and indeed wrong for it to
refer the matter back to the third respondent for determination,
because the
third respondent would still not have had jurisdiction to
determine such a dispute.
[15]
In its judgment, the court a quo does
not expressly state that that is what it found, instead it appeared
to be critical of the
second respondent’s approach to the issue
of jurisdiction and seemingly, regarded the second respondent’s
approach
as irregular because ‘when it appears that the reason
relied upon by an employee party at arbitration concerns an alleged
automatically unfair dismissal, then an arbitrator is required to
determine the true nature of the dispute and then rule that he
has no
jurisdiction [as] the true nature of the dispute concerns an alleged
automatically unfair dismissal’ and that the
second respondent,
according to the court a quo, did not approach the matter
accordingly. So it appears that the court a quo was
merely critical
of the second respondent’s approach, but did not find that the
third respondent had no jurisdiction, unless
the referral back to the
third respondent was purely erroneous.
[16]
In
Chuma, the Commissioner noted that the debate whether the
jurisdiction of a statutory arbitrator was determined by the
employee’s
characterisation of the nature of the dispute, or by
the true nature of the dispute, was finally resolved by this Court in
Wardlaw
v Supreme Moulding (Pty) Ltd
[3]
It was held in that case that the nature of the dispute (i.e. the
reason for the dismissal) was now determined from the facts of
the
case and not by the employee’s characterisation of the nature
of the dispute. In Chuma, although the employees were charged
with
refusing to obey an instruction to work, it was clear from the notice
read as a whole that the charge related to a collective
participation
in an unprotected strike. It was held that since the latter was the
true reason for the dismissal, the bargaining
council did not have
jurisdiction to determine the dispute and ought to have referred the
dispute to the Labour Court. The applicant’s
application in
that case was accordingly dismissed. There the issue that had to be
determined by the arbitrator was, what the true
nature of the dispute
was and whether the bargaining council had jurisdiction in the
matter.
[17]
In
Tao Ying, the Constitutional Court confirmed that an arbitrator is
required by the Act to deal with the substantial merits of
the
dispute and that this can only be done by ascertaining the real
dispute between the parties. Moreover, that in deciding what
the real
dispute was, the arbitrator was not necessarily bound by the legal
representative’s characterisation of the dispute.
The
Constitutional
Court held in that case that the labels that are attached to a
dispute cannot change its underlying nature and that
a Commissioner
is required to take all facts into consideration. Of significance to
the present case, the Constitutional Court
held that ‘the
dispute between the parties may only emerge once all the evidence is
in’.
[4]
[18]
In my view, the court a quo misconceived
and misapplied the principles that are found in the very decisions
which it referred to.
[19]
In
Wardlaw, this Court dealt with the Labour Court’s jurisdiction
under s 191(5) of the Act. It was stated that the two schools
of
thought that were applicable were the formalistic school and the
substantive school. In terms of the former, the employee’s
characterisation of the nature of the dispute, or more particularly,
the reason for the dismissal, would be decisive. If the allegation
is
made that the reason for the dismissal is one which falls within the
jurisdiction of the Labour Court, that court would have
jurisdiction
even though it emerges later that the reason is, in fact, different
and one that would have required the dispute to
be referred to
arbitration. In terms of the substantive school of thought, the
employee’s characterisation of the reason
for the dismissal is
only provisionally accepted until the Labour Court makes a finding as
to the true reason for the dismissal.
If the reason is the same as
the one alleged by the employee, there is no difficulty and the court
proceeds, but if it turns out
to be a different reason and one in
respect of which the Labour Court has no jurisdiction, the Labour
Court should refuse to adjudicate
the dispute (i.e. on the merits)
and allow it to be referred to the Commission or bargaining council,
as the case may be, that
has jurisdiction. The court referred to
criticisms of the two schools of thought. One of the possible
criticisms of the substantive
approach was that it subjects disputes
to a duplication process and could cause undue delay. Having
considered ss 157(5) and 158(2)
of the Act, this Court came to the
conclusion that it is inescapable ‘that the formalistic school
of thought does not enjoy
the
recognition
of the Act and that it is in fact the substantive approach that
enjoys recognition by the Act’.
[5]
[20]
What is clear from Wardlaw is that a two
stage process in the adjudication before the Labour Court was not
necessarily being advocated.
The Labour Court assumes jurisdiction on
the basis of what the employee alleges the reason for the dismissal
to be - but if it
later becomes ‘apparent’ to the court
that the reason for the dismissal is a different one and one in
respect of which
it does not have jurisdiction, the Labour Court
should not adjudicate the merits of the dispute, but allow the matter
to be referred
to the right forum with jurisdiction in order for that
forum to determine the merits of the dispute. In Wardlaw, this Court
did
not exclude the possibility that the true nature of the dispute
may only become apparent once all the evidence has been led and
the
court has considered it. Generally, this is the time when the court
will become aware of the true nature of the dispute. However,
in
Wardlaw, this Court also did not exclude the possibility that the
true nature of the dispute may also become apparent earlier,
i.e.
before all the evidence is led. An example that readily comes to mind
is if the issue of jurisdiction and the true nature
of the dispute is
separated from the merits of the dispute and raised at the outset of
the proceedings, requiring the court to
determine those issues on the
evidential material available, or presented during that phase of the
proceedings.
[21]
There is no valid reason why the
procedure that applies in the Labour Court does not also apply in
arbitrations conducted in terms
of or under the Act. In my view, the
court a quo erred insofar as it implied that the second respondent
should have stopped the
proceedings the minute when statements were
made during the cross-examination of Sinuko suggesting that he was
being victimised
because of his union affiliation. This most
certainly cannot be said to have been the moment when the true nature
of the dispute
became ‘apparent’. At no stage before the
statement was made during the cross-examination did either the
appellant,
or Sinuko, or the first (or any of the respondents)
allege, or suggest, that the reason for the dismissal was
victimisation, neither
did any of them raise an issue concerning the
jurisdiction of the second, or third, respondent.
[22]
In its request for a dispute resolution
on behalf of Sinuko, the appellant described the dispute as being
about unfair dismissal
due to alleged misconduct. The certificate of
outcome in respect of the conciliation also described the dispute as
such. The description
of the nature of the dispute was not in issue
at the arbitration hearing. Moreover, it was not alleged by the
appellant, or Sinuko,
that the reason for the dismissal was
victimisation. Instead, during Sinuko’s examination, and after
the representative indicated
to the hearing that there was union
rivalry in the company, he proceeded to put it to Sinuko that three
witnesses had testified
against him and they had said the same thing.
Sinuko was then asked whether this was not ‘perhaps because he
has ‘links
with the other union’. Having clarified what
union was being referred to, Sinuko answered in the affirmative. He
was then
asked whether there were any fights between the unions at
the plant and Sinuko answered that there were days when there was a
‘cold
war’ between them. By this, Sinuko explained, he
meant ‘a war of words’. Furthermore, it was never put to
Sinuko
that the reason for his dismissal was for anything other than
misconduct. What Sinuko was asked under cross-examination was whether
he believed that there was a plot to get rid of NUMSA shop-stewards
and he answered that he believes so. Sinuko never said that
the first
respondent dismissed him, because he belonged to the appellant union.
At best, Sinuko was suggesting that the individuals,
that is, Johnson
and the witnesses, possibly had a score to settle, but he did not
impute this motive to the employer (i.e. the
first respondent).
[23]
The witness, Fredericks, was also asked
in general, whether there was ‘a concerted effort by MEWUSA to
get rid of NUMSA members
and set them up as shop-stewards and get
them dismissed?’ The witness answered in the affirmative. Once
again, this was in
general and Fredericks did not suggest that this
is what motivated the employer to dismiss Sinuko. The representative
of the first
respondent was, in any event, at pains to point out that
there was no merit in those allegations.
[24]
In his award, the second respondent
stated with regard to the issue of union rivalry the following: ‘The
evidence was presented
about union rivalry and other issues. It is
not necessary to refer to this evidence as my findings are not based
on any such rivalry.
Rivalry which is often present in a workplace
where there is more than one union active. I do not see the
applicant’s membership
of NUMSA as a reason for the dismissal.
If that was the case then the matter should have been referred to the
Labour Court. ’
It thus appears from the second respondent’s
award that the second respondent was very alive to the issues,
including those
concerning the nature of the dispute and the issue of
jurisdiction. He, in essence, found that the true reason for the
dismissal
was not because of Sinuko’s membership with another
union, or victimisation, but was due to misconduct.
[25]
In my view, the second respondent’s
decision on this issue was justified and one that a reasonable
decision-maker could have
made. The second respondent did not err by
not stopping the hearing when evidence of general union rivalry,
referred to earlier,
was raised. In my view, that evidence did not
even make it ‘apparent’ that the reason for Sinuko’s
dismissal
was for a reason other than misconduct. Viewed in the
context of all the evidence, the conclusion reached by the second
respondent
on the issue, was reasonable.
[26]
In my view, the court a quo,
accordingly, erred in its conclusion on the issue of jurisdiction.
The order of the court a quo remitting
the matter back to the first
respondent for adjudication before a different arbitrator, indicates,
in essence, that it too did
not believe that the third respondent had
no jurisdiction, but that it merely had difficulty with the second
respondent’s
approach. The difficulty of the court a quo in
that regard was clearly based on a misconception of the legal
position.
[27]
I now turn to consider the second issue,
namely, whether this Court can determine the other grounds of review
that were not dealt
with by the court a quo. Counsel prepared
supplementary heads of argument at our request on whether this Court
may nevertheless
in those circumstances determine the merits of those
further grounds of review.
[30]
On
behalf of the appellant, it was submitted that in Joseph v University
of Limpopo and Others,
[6]
this Court upheld an appeal from the Labour Court and went on to
consider and determine the merits of grounds of review that were
not
considered by the Labour Court. However, it was readily conceded that
in Joseph the court did not ‘indicate the basis
of doing what
it did’. Notwithstanding, it was submitted that this Court has
the power to determine the other grounds in
terms of sections 173,
174 and 175 of the Act. Reference was also made to s 173(1)(a) of the
Act in terms of which this Court has
exclusive jurisdiction to hear
and determine all appeals against the final judgments and the final
orders of the Labour Court.
It was submitted that the judgment of the
court a quo was a ‘final judgment’, that the order
reviewing and setting
aside the award of the second respondent was a
‘final order’ and that in order to determine whether the
award falls
to be reviewed and set aside this Court must determine
whether the award is reviewable on the other grounds. (In the
supplementary
heads of argument of the appellant these other grounds
are referred to as ‘the second ground’.) It was further
submitted
on behalf of the appellant, that in circumstances where the
second ground was fully canvassed in the papers placed before this
Court and in the heads of argument filed by the parties, ‘it is
both pragmatic and in the interest of justice (given the lengthy
period for which the employee has already been unemployed) that the
second review ground be determined by this Court ’. Reference
was made to this Court’s power in terms of s 175 to sit as a
court of first instance, if the Judge President so directs,
and to
make an order which the Labour Court would have been entitled to
make. Counsel for the appellant, in the written heads,
attempted to
distinguish from the facts of the present matter, the facts in
Shoprite Checkers (Pty) Ltd v CCMA and Others
[7]
in which the Supreme Court of Appeal criticised this Court for
exercising, not its additional appeal powers, but ‘the fairly
circumscribed’ review powers that the Labour Court has in terms
of s 145(2) of the Act. According to the appellant ‘it
was the
exercise of the review powers itself which was the basis of its
decision to uphold the appeal (paras 30 to 31) and in any
event it
was not dealing with a case in which a direction had been made in
terms of section 175 of the LRA’.
[31]
On
behalf of the first respondent, it was submitted that this Court does
not have the power to make a decision on the further grounds
of
review, but was obliged to refer the matter back to the Labour Court
so that it could deal with them. Strong reliance was placed
on the
Shoprite Checkers decision
[8]
where the Supreme Court of Appeal stated the following:
‘
[29]
....In our view, the LAC appears in this particular instance to have
misconceived the nature of its function. The LAC concluded
that
Waglay J ought to have finalised the review application instead of
setting aside the arbitral award and remitting the matter
to the CCMA
for a hearing de novo. Ordinarily, in those circumstances the LAC
ought itself to have remitted the matter to the Labour
Court for
finalisation. It chose instead to finalise the matter itself. Given
the inordinate length of time that had passed since
the dismissal,
one would hesitate to criticise the approach of the LAC.
[30]
In following this approach, however, it effectively stepped into the
shoes of the Labour Court and was thus exercising, not
its
traditional appeal powers, but rather the fairly circumscribed s
145(2) review powers of the Labour Court. Its warrant for
the
interference with the award of the arbitrator was narrowly
confined...’
[32]
In
light of the judgment in Shoprite Checkers, it was submitted on
behalf of the first respondent, that this Court does not have
‘original power to review’ the awards of the CCMA, or
bargaining councils and may only deal with those matters in terms
of
its appeal powers. It was argued that the issue must first have been
decided by the Labour Court and since there is no appeal
before this
Court concerning the further grounds of review, this Court has no
power to deal with them. It was, furthermore, submitted
on behalf of
the first respondent, that this Court should decline any invitation
to sit as a court of first instance, because of
what the
Constitutional Court had said in Bruce and Another v Fleecytex,
Johannesburg CC and Others
[9]
about appeal courts sitting as courts of first and last instance.
There, it was, inter alia, stated that it was not ordinarily
in the
interest of justice if that occurred, in circumstances where there
was no possibility of a further appeal; and that there
was a
likelihood that a decision would be correct if more than one court
has considered the issue raised, because the losing party
has an
opportunity of challenging the reasoning in the first judgment and
improving its arguments raised in respect of that judgment.
It was
submitted, finally, on behalf of the first respondent, that since the
other appeal grounds were not fully canvassed in the
court below, it
would be unfair to deal with them on appeal before this Court.
[33]
I am of the view that there is some
merit in the first respondent’s argument on this point.
Firstly, this is not a case in
which the Judge President has
indicated that this Court will sit as a court of first instance as
envisaged in section 175 of the
Act. Moreover, in my view, it is not
a proper case for this Court to sit on as a court of first instance.
The power envisaged in
s 175 of the Act must be sparingly exercised
and should be reserved for exceptional situations. One is mindful of
what the Constitutional
Court had to say in Fleecytex about the
benefits and preference of having other courts consider the issue
before it is dealt with
by this Court on appeal, in circumstances
where there was no reasonable possibility of a further appeal from
the appeal court.
But, then again, this Court is often confronted
with the same situation it was confronted with in Joseph. There an
employee who
had been dismissed by the employer had been reinstated
in terms of an arbitration award made in his favour. The employer
sought
to review the award on several grounds in the Labour Court.
The court, however, found in favour of the employer on one of the
grounds
and held that in those circumstances it was unnecessary to
consider the other grounds of review. This Court was confronted with
that situation in the appeal brought by the employee in Joseph. The
question is what should this Court do regarding the remaining
issues,
or grounds of review that were raised in the proceedings before the
Labour Court, but were not dealt with by it?
[34]
In Joseph, this Court, having found that
the Labour Court erred in respect of the one ground that it had dealt
with, went on to
consider the other grounds of review in order to
determine whether the award should, nevertheless, be set aside on any
of those
other grounds. It was concluded that the other grounds were
without merit. The appeal was upheld and the order of the Labour
Court
was set aside and was replaced with an order that the review
was dismissed with costs. It was not an issue in that matter whether
this Court had the power to do what it did, and it was, apparently,
assumed that this Court had the necessary power, or competence,
to
consider the other grounds of review.
[35]
The impression gained from a cursory
reading of the passages, containing the criticism and which I quoted
earlier from the judgment
of Shoprite Checkers, is that this Court
does not have the competence at all to do what it did in that case,
and by implication,
what it did in Joseph. An analysis of that
judgment, in my view, confirms the contrary.
[36]
I doubt the validity of the Supreme
Court of Appeal’s criticism of the approach of this Court.
While it was the higher appeal
court, the SCA appears to have assumed
that it had greater appeal powers than this Court, especially for
dealing with the situation
that this Court was confronted with in
that case. Because, having criticised this Court for exercising
review powers that it did
not have; for ‘stepping into the
shoes’ of the Labour Court; for dealing with the matter itself
and for not remitting
it to the Labour Court, the SCA, which also
does not have review powers in terms of the Act, nevertheless, did
exactly what it
said this Court could not do. Instead of remitting
the matter to the Labour Court, it finalised the matter itself.
[37]
The
powers of the SCA to make orders on the hearing of appeals to it
derives from the Constitution, but also, in particular before
the
Superior Courts Act of 2013
, from the provisions of
s 21
and s 22 of
the Supreme Court Act
[10]
. For
present purposes s 21 is not relevant. Section 22 provides:
‘
The
appellate division or a provincial division, or a local division
having appeal jurisdiction shall have power-
(a)
on the hearing of an appeal to
receive further evidence, either orally or by deposition before a
person appointed by such a division,
or to remit the case to the
court of first instance, or the court
whose
judgment is the subject of the appeal, for further hearing, with such
instructions as regards the taking of further evidence
or otherwise
as to the division concerned seems necessary; and
(b)
to confirm, amend or set aside the
judgment or order which is the subject of the appeal and to give any
judgment or make any order
which the circumstances may require.’
(emphasis added)
[38]
The power of this Court to make orders
in respect of appeals before it ultimately derives from the
Constitution, but more immediately,
particularly, from s 174 of the
Act, which (similarly to s 22 of the Supreme Court Act) provides:
‘
The
Labour Appeal Court has the power—
(a)
on the hearing of an appeal to
receive further evidence, either orally or by deposition before a
person appointed by the Labour
Appeal Court, or to remit the case to
the Labour Court, for further
hearing,
with such instructions as regards the taking of further evidence or
otherwise as the Labour Appeal Court considers necessary;
and
(b)
to confirm, amend or set aside the
judgment or order which is the subject of the appeal and to give any
judgment or make any order
that the circumstances may require.’
(emphasis added)
[39]
It is apparent from a reading of the
sections quoted, that this Court and the SCA have virtually the same
statutory powers on appeal,
save that the powers of this Court are
confined to appeals from the Labour Court. The powers contained in s
22(b) of the Supreme
Court Act and s 174(b) of the Act, respectively,
are identical. Section 22(b), particularly the latter part thereof,
which reads
‘... to give any judgment which the circumstances
may require’ and which I shall refer to as ‘the auxiliary
section’,
has been interpreted by the Appellate Division( the
‘AD’) to be auxiliary and not only limited to matters
arising from
the appeal itself, such as, for example, a remittal to
the court of first instance for the hearing of further evidence, or
for
argument on the quantum of damages, or for the quantum of damages
to be fixed by that court, but as empowering the AD to itself
determine the quantum in appropriate cases where the court of first
instance had merely dealt with the merits of a claim, had dismissed
it on the merits and had not dealt with the issue of damages ,or its
quantum at all.
[40]
In
Neethling v Du Preez: Neethling v Weekly Mail,
[11]
the trial court had found that although the matter published was
defamatory of the appellant, the publication was justified and
the
appellant was, accordingly, not entitled to any damages. Counsel for
the respective parties had agreed that if the appeal was
successful,
the matter should be referred back to the trial court in order for it
to determine the quantum of damages. The AD,
having found that the
appeal (i.e. on the merits) should succeed, went on to consider the
issue of the damages. It held that by
virtue of the auxiliary section
it had the power to determine the damages itself and even though it
was a function which lies peculiarly
within the province of the trial
court, it did not have to remit the matter to the trial court as such
a course might prove inconvenient
to all concerned. Having related
how remittal may, in certain circumstances, serve no useful purpose,
other than cause needless
delay and additional costs, Hoexter JA, who
gave the unanimous judgment, stated, in support of the view that the
auxiliary section
gave additional power: ‘It is unnecessary, in
my view, to enlarge upon the incongruous results flowing from the
narrow construction
of the auxiliary provision for which the
respondents contend. The fact of the matter is that in a number of
appeals, each resulting
from an unsuccessful action for damages in
which the court below has erroneously non-suited the plaintiff on the
merits, this court
has made orders in regard to the quantum of
damages which involve a clear negation of the restrictive
interpretation. A survey
of its reported decision[s] reflects that in
the past, and in the very sort
of
situation now under discussion, this court has, in appropriate
circumstances, itself fixed the damages to be awarded to the
plaintiff’.
[12]
Having considered in what circumstances the AD would do so, Hoexter
JA, pointed out that it was an unusual step to depart from
the
general rule that damages should be left to be determined by the
trial court, but such departure may be necessitated by special
circumstances and that each case must be dealt with on its own
particular facts. An objection by a party to the AD itself
determining
the damages was described as ‘a factor operating
powerfully against the departure from the general rule’.
[13]
[41]
The
auxiliary provision is also the source of the appeal court’s
power: -inter alia, to amend pleadings on appeal, without
remitting
the matter before it to the lower court;
[14]
to postpone an appeal;
[15]
to stop proceedings, eg. to allow for the joinder of a party;
[16]
to suspend the execution of an order.
[17]
The exercise of all these auxiliary powers is exceptional and
convenience is also important. In Shoprite, by not referring the
matter back to the Labour Court and finalising the matter itself, I
venture to suggest, the SCA exercised a power derived from
the
auxiliary provision. The SCA itself did not identify the source of
that power, but a consideration of the other sources of
its powers,
leaves one with the distinct impression that the auxiliary provision
was the source of the power exercised in that
matter. By the time the
matter came before that court, a substantial delay had already
occurred and remitting the matter to the
Labour Court would have
entailed yet a further delay. The exercise of the power was justified
given the circumstances in that case.
However, in that matter, this
Court also dealt with the matter itself because of the inordinately
long delay and the possibility
of a miscarriage of justice that would
otherwise have occurred. As I pointed out earlier, s 174(b) of the
Act contains an identical
provision to the auxiliary provision. If
the SCA had the power, which it exercised in terms of the auxiliary
provision, then this
Court most certainly had the same power. The
criticism of this Court for finalising the matter itself, given the
circumstances,
does therefore not appear to be valid, or justified.
[42]
The justification for the existence of
the power is the same as the justification for the power to determine
damages, which the
AD held it had in Neethling.
Giving
s 174(b) of the Act, or the latter part of that section, a restricted
meaning, would, in practice, inhibit the expeditious
despatch of
litigation and, in certain cases cause a miscarriage of justice. It
is frequently the case with appeals before this
Court involving a
review of an award that only one, or so, grounds, out of a number,
were dealt with by the Labour Court and in
respect of which it
dismissed the application for review, or granted the application and
set aside the award, but without saying
anything about the other
grounds of review. It would be incongruous to suggest that in every
case where the appeal (involving the
one ground) was successful, this
Court ought to remit the matter to the Labour Court to decide on the
other grounds that it did
not consider initially, even though such a
course might result in an unacceptable prolongation of the matter, or
otherwise cause
a miscarriage of justice. It is likely that in many
appeals, excluding those in Joseph and Shoprite, this Court has, in
appropriate
circumstances, itself considered the other grounds of
review and finalised the application, as the Labour Court ought to
have done.
[43]
In my view, in light of the above, this
Court is legally competent, in terms of the latter part of s 174(b)
of the Act, to finalise
a matter on appeal before it and not remit
the matter to the Labour Court if there has already been an
inordinate delay in finalising
a matter, or its remittal would entail
a further long delay and further costs, or if there is a reasonable
possibility of a miscarriage
of justice occurring due to a remittal.
The exercise of the power would depend on the facts and circumstances
of the matter before
this Court. In considering whether to finalise
the matter itself, the remarks of the Constitutional Court in
Fleecytex have to
be taken into account. In matters involving a
review of an award, the general rule is that it is the function of
the Labour Court
to review awards. A departure from that rule on
appeal is exceptional and depends on whether, in a particular case,
the interests
of justice and convenience will best be served by this
Court finalising the matter and not remitting it to the Labour Court.
Other
factors of importance include whether the issues were fully
canvassed in the papers before the Labour Court; whether there is
likely
to be prejudice if the matter is not remitted and whether
finalisation of the matter by this Court is requested by the parties
on both sides.
[43]
I now proceed to consider whether in all the circumstances of this
appeal, this Court should go on to decide the other grounds
(or
‘second ground’) of review, or whether the better course
would be to remit the matter to the Labour Court to deal
with those
grounds first.
[44]
The appellant has advanced a few reasons
why this Court should consider the ‘second ground of review’
and finalise,
as it were, the application. Firstly, it is submitted
that this Court has to exercise the power, because it has the power.
This
on its own cannot be a reason why this Court should exercise the
power in any particular case. There must be exceptional circumstances
present and it must be in the interest of justice for this Court to,
essentially, perform what is essentially a function of the
Labour
Court. Secondly, it is submitted that the second review ground has
been fully canvassed in the papers and in the heads of
argument filed
by the parties in respect of the hearing before this Court. This
submission purports to address the issue of convenience.
Thirdly, it
is submitted that Sinuko has already been unemployed for a lengthy
period, and fourthly, that in light of the second
and third reasons
‘it is both pragmatic and in the interests of justice’
that the second review ground be determined
by this Court. With
regard to the third reason, we have not been provided with particular
detail in respect of the period for which
Sinuko has been unemployed.
From the record we learn, inter alia, that he was dismissed by the
first respondent on 29 September
2009, after the disciplinary
enquiry; the award reinstating him was submitted on 22 March 2010;
the application to review the award
was brought on or about 10 May
2010 and the judgment of the court a quo in respect of the review was
delivered on 1 February 2012.
The application for review did not
suspend the award. We are not told whether Sinuko was reinstated in
compliance with the award
and what transpired thereafter.
[45]
The first respondent objects to this
Court dealing with the other grounds of review. Its main point is
that this Court does not
have the legal competence or power to do so.
As already pointed out, there is no merit in the point. However, the
first respondent,
with reference to the Fleecytex decision, also
submits that it would not be in the interest of justice for this
Court to sit as
a court of first instance in respect of grounds of
review that were not dealt with at all by the court a quo. In this
regard it
is submitted that this Court does not have the benefit at
all of the judgment and reasoning of the court a quo.
[46]
Considering all of the facts and
circumstances, including the submissions of the parties, I am of the
view that, on a balance, referring
the matter back to the Labour
Court would just compound, what I consider to be an inordinate delay
in the finalisation of this
matter. The interests of justice will be
best served if this Court finalises the matter itself.
[47]
Regarding
the remaining grounds of review, the first respondent’ counsel
submitted that the second respondent ‘seemed
to ignore the
principle that general staff are subordinate to managers’ and
that the matter was not about Sinuko or Johnson,
but about whether
aggrieved employees have the right to threaten managers and whether
employers may excuse its employees from issuing
threats. In support
of this argument counsel referred to National Union of Mineworkers
and Others v Black Mountain Mining (PTY)
Ltd
[18]
where the court, inter alia, dealt with the question of misconduct by
employees, in particular shopstewards, during a strike, and
the right
of an employer to take action against employees who use violence and
threats to exert their will in the course of negotiations
or a
strike. Counsel, in particular, attacked the second respondent’s
decision not to confirm the dismissal of Sinuko.
[48]
It was submitted on behalf of the first
respondent, clearly unjustifiably in my view, that the evidence shows
that Sinuko threatened
to kill a member of management and that Sinuko
considered this resort to ‘self-help’ to be justified,
because the management
used illegitimate means to get at him. In
support of the sanction of dismissal, counsel also submitted, again
unjustifiably, in
my view, that Sinuko ‘does not and will not
respect authority’ and that ‘whenever he feels a sense of
righteous
indignation he intends to throw his weight around the
workplace and makes threats’. All of this, so it was argued,
‘provides
evidence of a breakdown in the employment
relationship’. It was also submitted that the Labour Court has
held on more than
one occasion that employees, who engage in
sustained defiance of authority as a means to air their grievances,
must understand
that they do so at their own peril and should not be
overly surprised if the outcome of their crusade is dismissal,
[49]
These submissions made on behalf of the
first respondent, profess to be made on the basis of the evidence
that was before the second
respondent, but in many respects ignores
the evidence or misinterprets it.
[50]
The ultimate issue for determination in
the arbitration was whether the conduct
of
Sinuko was so outstandingly bad as to warrant his dismissal. As
mentioned earlier, the second respondent found that Sinuko was
insolent and had threatened Johnson, but that his conduct did not
amount to verbal abuse. These findings cannot be said to have
been
unreasonable. The evidence, in my view, and contrary to the
submissions made on behalf of the first respondent, does show
that
the entire incident was, indeed, about Sinuko and Johnson on a
personal level and not about Sinuko against management, or
about his
attitude toward management in general. Sinuko and Johnson were one
time close friends, who visited each others’
homes and who
clearly had an informal relationship. At some stage they belonged to
the same union. Their relationship became strained,
not because of
Sinuko’s attitude towards management, but probably after Sinuko
joined a rival union and particularly, after
the “Simemo”
incident.
[51]
There is no evidence at all that Sinuko
had at any stage, during his lengthy period of employment with the
first respondent, misconducted
himself towards management, or at all.
Johnson himself testified that he had known Sinuko for 14 years and
that it was the first
time he saw Sinuko behave in the manner he
behaved during the incident. It is not Sinuko that confronted Johnson
on the day of
the incident, but Johnson who confronted him. Even if
Johnson was, arguably, entitled to ask Sinuko about the wearing of a
hardhat,
one must not overlook the manner in which Johnson did so,
which could have provoked Sinuko and caused him to react.
[52]
Having
found Sinuko had misconducted himself, the second respondent was
required to decide whether, in his view, the sanction of
dismissal,
imposed by the employer, the first respondent, was justified and
fair, given the circumstances.
[19]
He found that it was not fair and justified in light of the
following. In terms of the second respondent’s disciplinary
code insolence and the use of abusive and/or insulting language
towards fellow employees and a refusal to carry out a lawful
instruction
or perform a duty(-ies) carried a sanction of a final
written warning for a first offence; Sinuko, who had been in the
employ of
the first respondent for 18 years, had a clean disciplinary
record; following the incident, Sinuko was not suspended, but was
allowed
to continue working until the conclusion of the disciplinary
hearing and his summary dismissal (i.e for about two-and-half months)
and he would have come into contact with Johnson during that time;
Johnson had, in the interim, been transferred to another department.
[53
]
The
reviewing court must decide whether the decision of the second
respondent is one which a reasonable arbitrator could not reach.
[20]
Taking all the circumstances into account it cannot be found that a
reasonable arbitrator, or decision-maker, would not have come
to the
same conclusion as the second respondent. In my view, the first
respondent never established an irretrievable breakdown
of the
employment relationship between itself and Sinuko. A fact which the
second defendant did not mention, or allude to, is that
the witness
that gave evidence at the disciplinary hearing that the employment
relationship had broken down, was the very person
that presented the
case for the first respondent at that hearing, namely, Harmsen. He
had no personal knowledge of the incident
and in the final analysis,
was expressing an opinion which was, most certainly, not based on
fact and was biased. No weight could
be given to such an opinion, in
light of the established facts.
[54]
In
conclusion, the court a quo clearly erred in reviewing and setting
aside the award for the reason that it did and in respect
of that
very reason. Regarding the other grounds of review, It cannot be
found that the second respondent’s decision was
unreasonable
and would not have been made by a reasonable decision-maker, or
arbitrator.
[21]
As regards
costs, I am of the view that there is no reason why costs should not
follow the result.
[55]
In the result, the following is ordered:
1.
The
appeal is upheld.
2.
The
order of the court a quo is set aside and is substituted with the
following order:
‘
The
application to review the award of the second respondent is dismissed
with costs’.’
3.
The
first respondent is ordered to pay the costs of the appeal.
P
Coppin
Acting
Judge of the
Labour
Appeal Court
I
agree:
B
Waglay
Judge
President of the Labour Appeal Court
I
agree
L P
Tlaletsi
Acting
Deputy Judge President of the
Labour Appeal Court
APPEARANCES
FOR
THE APPELLANT
Adv. MS M Norton
Instructed
by Cheadle Thompson & Haysom
FOR
THE FIRST RESPONDENT
Adv. C S KAHANOVITZ
SC
Instructed
by Louis Van Zyl Attorney
[1]
Chuma and Giflo Engineering (BOP) (Pty) Ltd (2009) 30 ILJ 2572
(BOA); [2009] 11 BALR 1097
[2]
Cusa v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC)
paras [65] to [66].
[3]
Wardlaw v Supreme Moulding (Pty) Ltd [2007] 6 BLLR 487 (LAC).
[4]
See Tao Ying Metal case (above) para [66].
[5]
Wardlaw
v Supreme Moulding
para
[21].
[6]
Joseph v University of Limpopo and others (2011) 32 ILJ 2085 (LAC).
[7]
Shoprite Checkers (Pty) Ltd v CCMA and Others
2009 (3) SA 493
(SCA).
[8]
In particular paragraphs [29] and [30] of that decision.
[9]
Bruce and Another v Fleecytex, Johannesburg CC and Others
1998 (2)
SA 1143
(CC) para [8].
[10]
Act 59 of 1959.
Section 19(d)
of the
Superior Courts Act, 10 of
2013
, which commenced on 23 August 2013, has similar wording to
s 22
of Act 59 of 1959.
[11]
Neethling v Du Preez: Neethling v Weekly Mail
[1994] ZASCA 133
;
[1995] 1 All SA 441
;
1995 (1) SA 292
(A) at 297302.
[12]
At 298 C-E.
[13]
At 302 B
[14]
See eg. Cooper and others NNO v Syfrets Trust Ltd
[2000] ZASCA 128
;
2001 (1) SA 122
(SCA) at 133 B-D.
[15]
See eg. McCarthy Retail Ltd v Shortdistance Carriers CC
2001 (3) SA
482
(SCA) at494D-G;495 CD.
[16]
See eg. Pretorius v Slabbert
2000 (4) SA 935
(SCA) at 939 A-G.
[17]
See eg. Voortrekker Pers Bpk v Rautenbach 1947 (2) SA 47 (A).
[18]
National Union of Mineworkers and Others v Black Mountain Mining
(PTY) Ltd (2010) 31 ILJ 387 (LC).
[19]
See:
Wasteman Group v South African Municipal Workers’ Union
[2012]
8 BLLR 778
(LACJ; Fidelity
Cash
Management Services v CCMA and Others (2008) 29 ILJ 964 (LAC).
[20]
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007]
12 BLLR 1097 (CC).
[21]
Herholdt
v Nedbank Limited
[2013] JOL 30796
(SCA).