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[2014] ZALAC 62
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National Union of Mineworkers and Another v Rustenburg Platinum Mine (Mogalakwena Section) and Others (JA43/2013) [2014] ZALAC 62; [2015] 1 BLLR 77 (LAC) (23 October 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA43/2013
In the matter
between:-
NATIONAL
UNION OF
MINEWORKERS
.................................................................
First
Appellant
TSHUNGU
D
................................................................................................................
Second
Appellant
and
RUSTENBURG
PLATINUM MINE
(MOGALAKWENA
SECTION)
.................................................................................
First
Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION
AND
ARBITRATION
......................................................................
Second
Respondent
THABA
P G
N.O.
…...................................................................................................
Third
Respondent
Heard: 18
September 2014
Delivered: 23
October 2014
Summary:
Review of arbitration award. Employee dismissed
for insubordination- mutual destructive versions- credibility
findings – commissioner’s
finding on probabilities
favouring employee’s version and rejecting employer’s
version - commissioner finding dismissal
substantively unfair. Labour
Court setting aside arbitration award. Appeal: Witnesses’
evidence corroborating that of employee
that he was not guilty of the
charges for which he was dismissed – commissioner finding on
probabilities reasonable- - Labour
Court’s judgment set aside -
appeal upheld with costs.
Coram: Musi JA,
Murphy
et
Setiloane AJJA
JUDGMENT
CJ MUSI JA
[1] This appeal,
which is with the leave of the court
a quo
(Bhoola J), is
against the judgment of the court
a quo
in which it reviewed
and set aside an award by the third respondent (the arbitrator) and
substituted it with an order that the
dismissal of the second
appellant (Tshungu) was substantively fair.
[2]
Tshungu was a shop steward of the first appellant (the National Union
of Mineworkers (NUM)) and employed by the first respondent
(the
company). He was dismissed on 22 October 2010 after he was found
guilty of insubordination and engaging in activities that
hindered
the company’s
production. He referred
an unfair dismissal dispute to the second respondent, the Commission
for Conciliation Mediation and Arbitration
(CCMA). After an
unsuccessful conciliation process, he referred the dispute to
arbitration. On 21 September 2001
, the
arbitrator found that his dismissal was substantively unfair and
ordered the company to reinstate him. The company launched
a review
application against the arbitrator’s award. The court
a
quo
found in the company’s favour
and set aside the award. This appeal is against the order of the
court
a quo
.
[3] Tshungu was
employed as a multi-skilled operator and worked on the “A”
shift which began at 06H00 on 2 January 2010.
Mr Jan Shebango was the
supervisor and Mr Andries Windt the pit superintendent of the “A”
shift.
[4] It was part of
the company’s standard operating procedure that every day, at
the beginning of the shift, a line-up meeting
was held to advise
workers on production, health and safety matters. The subject matter
of this appeal relates to what actually
happened during and after the
line-up meeting on 2 January 2010.
[5]
Windt testified during the arbitration that, on 2 January 2010, the
usual line-up meeting was held at the start of the shift
at 06H00.
The meeting normally t
ook approximately 15
minutes. Whilst Shebango was busy with the line-up
,
Tshungu took over and discussed “stuff about the union”
with his co-workers. He did not confront Tshungu immediately.
After
the line-up meeting, at approximately 08H30, he asked Tshungu why he
kept on overruling the agreement between management
and the union.
Tshungu said to him that he (Windt) did not care about the union. He
also said that Windt does not respect the union.
He further said that
he (Tshungu) would do as he pleases and that Windt should charge him
so that they could settle the matter
once and for all.
[6] According to
Windt, the agreement between management and the union was that
Tshungu should inform him, as the shift leader,
in advance whenever
he wanted to discuss union issues with the employees. The reason for
the arrangement was so that the shift
leader could request the
employees to report for duty earlier in order to be addressed by the
union representative.
[7] Windt further
testified that Tshungu’s conduct made him feel powerless and
not in control. Tshungu disrespected him and
whenever Tshungu
addressed the employees, it affected the time that the shift was
supposed to start. This was the third time that
Tshungu addressed the
line-up meeting without permission.
[8] He testified
during cross-examination that, he did not understand the language
that Tshungu spoke at the line-up meeting. He
did not ask Shebango
what Tshungu said. It was put to Windt that Tshungu denied talking to
the employees on 2 January 2010. Windt
admitted that he did not
report the incident on that particular day.
[9] Mr Jan Shebango
testified that the line-up meeting usually took 30 minutes. He
confirmed that Tshungu addressed the employees
on 2 January 2010
during the line-up meeting. He testified that he could not hear what
Tshungu was saying because he was busy with
something else. He could
not say how long Tshungu addressed the workers.
[10] Mr Christoffel
de Bruin testified that he is in the company’s employ as a
dispatch engineer in charge of the computerised
dispatch system. On
average, the “A” shift produced 2943 tons of platinum ore
per day but on 2 January 2010 the “A”
shift produced 460
tons. 2943 tons of platinum ore normally would yield a potential
income of approximately R155 000,00. On
the other hand, 460 tons
of platinum ore would yield a potential income of R24 255,00.
Although the figures do not add up,
he testified that there was a
loss of R131 250,00.
[11] During
cross-examination, he testified that the loss was as a result of the
late start of the “A” shift. When it
was put to him that
it took 30 minutes to do a shift change-over he conceded that he did
not know. It was also illustrated to him,
based on company data, that
equipment failure or breakdown rather than the lateness of the ‘A’
shift was the major
cause of the loss of production, because the ‘A’
shift started at 06H50. It was also put to him that the 20 minute
production loss purportedly caused by Tshungu could not lead to the
astronomical loss that he testified about.
[12] Mr Millan who
was the chairperson of the disciplinary hearing testified about the
procedural fairness of the hearing.
[13] Mr Dickson
Tshungu testified that he was at the line-up meeting on 2 January
2010. He did not speak at that meeting. The workers
raised issues
relating to food and additional supervisors with Shebango and Windt.
He testified that in terms of the company’s
disciplinary
guidelines, he as a first offender, was supposed to have been given a
final written warning after being found guilty
of insubordination. He
was however dismissed. He pointed out that, on the company’s
official records, the reason for the
delay on 2 January 2010 is given
as “first shovel ready 15 minutes into the shift”. There
was no indication at all
that he was the reason for the delay. He
further testified that on 10 February 2010, he attended a meeting
with the management
whereat he was very vocal against policy and
other issues which the management wanted to introduce. He was
informed about the charges
on 11 February 2010.
[14] Mr Klaas
Legodi, who was also a shop steward, confirmed that Tshungu was very
vocal at the meeting held on 10 February 2010.
[15] Mr Julius Nome
testified that he is a truck operator and safety representative. He
was at the line-up meeting on 2 January
2010 where he held the safety
talk. He confirmed that Tshungu did not speak at the line-up meeting.
[16] During
cross-examination, he denied that Tshungu took over the line-up
meeting. According to him, Jame Baloyi raised the issue
about workers
who did not get food and others who received rotten food.
[17] The arbitrator
summarised the evidence and concluded as follows:
‘
The
applicant was found guilty and dismissed for insubordination and
engaging in activities which hindered company production.
The
question whether the applicant addressed the line up without
permission thereby causing late start of the shift. During
cross-examination the respondent’s first witness Mr. Windt said
that the applicant addressed the line up without permission.
He
contended that he did not understand the language hence he was unable
to explain what the applicant was talking about.
Mr. Shebambo
(sic) said that he did not hear what the applicant was talking about
because the applicant would have used the language
that his
colleagues understand. The applicant’s third witness Mr.
Nong testified that the applicant did not speak during
the line-up.
His evidence was supported by the applicant. According to him
employees raised the issues pertaining to
food parcels on public
holiday and additional trainer supervisor. Mr. Windt averred
that he did not report the alleged incidents
in terms of Platinum
Rules. These in my mind create a probability that the applicant
did not speak during the line-up.
I am mindful that the shift
started late on the day in question and the respondent has recorded
lost. Therefore with insufficient
evidence I could not link the
applicant to the loss. It is my findings that the applicant did
not commit the alleged misconduct.’
[18] The company
essentially raised two review grounds in its review application.
Firstly, it alleged that the arbitrator disregarded
relevant
evidence. Secondly, it alleged that he relied on irrelevant factors
to arrive at the finding that the dismissal was substantively
unfair.
[19] The court
a
quo
found that the arbitrator correctly identified the issues
that fell to be determined as whether Tshungu addressed the line-up
on
the day in question and whether that resulted in a disruption of
production and resultant losses.
[20] The court
a
quo
made the following observations and findings:
‘
[5]
The evidence led in this regard was that of the respondent’s
witnesses to the effect that Wayne and Shibambo (sic) both
testified
that they saw Tshungu addressing the employees during the line up.
Shibambo’s (sic) evidence is that he saw
his mouth moving but
he did not hear anything and Wayne’s evidence was that he did
not understand the language that was being
spoken to Tshungu and
hence it could not be proven that he was in fact addressing the line
up in regard to union related issues,
is irrelevant.
[6] Wayne’s
evidence was that he approached Tshungu after the meeting in order to
establish why he had disrupted the meeting
and Tshungu replied that
he was busy with union business and that if Wayne was dissatisfied
with that, Wayne should charge him
accordingly.
[7] The Arbitrator
appears not to have had regard to this issue. Furthermore, the
Arbitrator also fails to acknowledge the
concession albeit made
temporarily by Mr Julius Nong that Mr Tshungu did address the
line-up.
[8] For these
reasons it would appear to me that the entire award is focussed on
the question of whether Tshungu was guilty of insubordination
and
engaged in activities which hindered company production.
[9] The Arbitrator
focused entirely on whether Tshungu addressed the line up without
permission and found in this regard that if
in fact he had addressed
the line-up, Shibambo (sic) was in the room and would have heard what
he was talking about. The
fact that Shibambo (sic) could not
hear what he was saying, implied that on the probabilities he did not
speak during the line-up.
[10] In my view it
is self-evident that this line of reasoning demonstrates a failure to
have regard to the material evidence before
the Arbitrator and
results in a finding that is tainted by gross – irregularity
and is accordingly unreasonable.’
[22] Mr Myburgh, on
behalf of the company, argued, firstly, that the factual findings
made by the arbitrator are not supported by
the evidence. Secondly,
that the commissioner failed to apply his mind to material facts and
issues and thirdly, that the arbitrator
adopted an erroneous approach
to the determination of the factual dispute that confronted him.
[23] Mr Makinta, on
behalf of the appellants, argued that the court
a quo
applied
the wrong approach. He submitted that it approached the review
application as if it was an appeal.
[24]
The test for substantive unreasonableness was laid down in
Sidumo
and Another v Rustenburg Platinum Mines and Others
[1]
as
follows:
‘
Is
the decision reached by the decision-maker one that a reasonable
decision-maker could not reach?’
[25]
Mr Myburgh submitted that a failure by the arbitrator to apply his
mind to the issues before him was a gross irregularity which
on its
own, without regard to the outcome or result, is sufficient to set
aside the award. He not only referred to the minority
judgment in
Sidumo
at para 268 but also to a later judgment of the Constitutional Court,
CUSA
v TaoYing Metal Industries and Others
[2]
[2008] ZACC 15
;
2009 (2) SA 204
(CC) at para76, where the notion that an award may be
set aside without more, if it is shown that the arbitrator did not
apply
his/her mind to the issues properly before him or her, was
reiterated.
[26]
Although he submitted that
CUSA
v TaoYing
supra
is still good law, he urged us to apply the test as set out in
Herholdt
v Nedbank
and the majority in
Sidumo
because this matter can be resolved by applying the approach espoused
therein. In
Heroldt
v Nedbank
[3]
it was said:
‘
In
summary, the position regarding the review of CCMA awards is this:
A review of a CCMA award is permissible if the defect
in the
proceedings falls within one of the grounds in s 145(2)(a) of the
LRA. For a defect in the conduct of the proceedings
to amount
to a gross irregularity as contemplated by s 145(2)(a)(ii) the
arbitrator must have misconceived the nature of the inquiry
or
arrived at an unreasonable result. A result will only be
unreasonable if it is one that a reasonable arbitrator could
not
reach on all the material that was before the arbitrator.
Material errors of fact, as well as the weight and relevance
to be
attached to particular facts, are not in and of themselves sufficient
for an award to be set aside, but are only of any consequence
if
their effect is to render the outcome unreasonable.’
[27] A reasonable
award is not necessarily a right or correct award. As long as it
falls within the range of reasonable decisions
that could be made
based on the evidence before the decision-maker, there would be no
reason to set the award aside. The reviewing
court should always
guard against substituting its views for those of the decision-maker.
It is pre-eminently the task of the CCMA
or Bargaining Council
commissioners to determine the fairness or otherwise of the
dismissal. Commissioners are not expected to
give awards that are
akin to judgments of the Supreme Court of Appeal or the
Constitutional Court. Awards are not meant to be perfect
or
satisfactory in all respects. The mere fact that an award is
unsatisfactory in one or more respects does not mean that it is
unreasonable.
[28] When analysing
an award, the reviewing court must look at all the material that was
before the commissioner and not only the
reasons given by the latter
in the award. Where the material before the commissioner shows that
there are other reasons, except
those mentioned by the commissioner,
which render the award reasonable, the reviewing court must consider
such evidence.
[29] Commissioners
on the other hand must be mindful of the fact that their awards must
be well thought through because their reasons
are important to
achieve and sustain transparency, accountability and openness in the
proceedings before them. A well-reasoned
award may convince the
person against whom it is made that a review application would not be
worth-while whereas a badly reasoned
one will in all probability have
the opposite effect.
Fidelity Cash Management Services v CCMA and
Others
(2008) 29 ILJ 964 (LAC);
Ellerine Holdings Ltd v CCMA
and Others
(JA22/2005)
[2008] ZALAC 6
(8 May 2008);
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
[2007]
12 BLLR 1097
(CC);
Herholdt v Nedbank Ltd
2013 (6) SA 224
(SCA).
[30] Having
considered the award in this matter, it is, in my view, neither
necessary nor desirable, on the facts of this matter,
to embark on an
analysis of the divergent opinions in
Herholdt
and
TaoYing
.
[31] Mr Myburgh
submitted that the singular important issue in this matter is the
fact that the arbitrator failed to apply his mind
to what he called
the unchallenged evidence of Windt relating to the confrontation at
8H30 and the fact that Tshungu had previously
misconducted himself in
a similar fashion. Mr Myburgh submitted that the failure to challenge
Windt’s evidence is an admission
by implication. The
arbitrator’s failure to consider such a damning admission, so
the argument went, is a gross irregularity
which led to an
unreasonable result. I disagree.
[32] The factual
substratum
for the argument is not solidly based on the facts.
Windt’s evidence was challenged. Tshungu faced a charge of
insubordination.
The only evidence presented by the company to prove
the misconduct was the events of 2 January 2010. Tshungu’s
defence was
that the company’s case was contrived because he
did not say anything during the line-up on 2 January 2010.
[33] Mr Mabaso, who
appeared on behalf of Tshungu at the arbitration hearing, did
challenge Windt’s evidence. The relevant
part of the
arbitration record reads as follows:
‘
Mr
Mabaso: I put it to you that you are confused with your own
dates, that is why you do not recall anything.
Mr Windt: I do what?
Mr Mabaso: You
are confused with the whole event because the event you are supposed
to be complaining with (sic) actually
took place on the 3
rd
where you had a confrontation with Dickson not the 2
nd
.
Mr Windt: That
was on the 2
nd
I still vividly remember it was a Saturday
morning.
Mr Mabaso: I
put it to you that you are not a reliable witness in this hearing
because you cannot recall anything.’
[34] It is clear
that Tshungu’s case was that nothing happened between them on
the 2
nd
of January 2010 but that there was a confrontation
on the 3
rd
of January 2010. The particulars of that
confrontation, if there was one, were not before the arbitrator. The
fact of the matter
however is that the testimony relating to the
confrontation that purportedly occurred on 2 January 2010 was
expressly challenged.
It can therefore not be classified as
unchallenged evidence or an admission by implication.
[35]
Mr Myburgh managed to score an own goal with his submission with
regard to Windt’s testimony as to what happened at 8H30
on the
2
nd
of January 2010. In
ABSA
Brothers (Pty) Ltd v Moshoana NO and Others
[4]
the
following was said about the failure to cross-examine on an important
point.
‘
[39]
It is an essential part of the administration of justice that a
cross-examiner must put as much of his case to a witness as
concerns
that witness (see Van Tonder v Killian NO en Ander
1992 (1) SA 67
(T)
at 72I). He has not only a right to cross-examination but, indeed,
also a responsibility to cross-examine a witness if it is
intended to
argue later that the evidence of the witness should be rejected. The
witness’ attention must first be drawn to
a particular point on
the basis of which it is intended to suggest that he is not speaking
the truth and thereafter be afforded
an opportunity of providing an
explanation (see Zwart and Mansell v Snobberie (Cape) (Pty) Ltd
1984 (1) PH F19 (A)). A failure
to cross-examine may, in general,
imply an acceptance of the witness’ testimony. In this
regard Pretorius has the following
to say in ‘Cross-examination
in South African Law’ Butterworths 1997 p149-150 :
“…
it
is unjust and unfair not to challenge a witness’s account if
offered the opportunity, then later argue – when it
is no
longer possible for the witness to defend himself or offer an
explanation – that his evidence should not be accepted.
…
…
It
would create an untenable situation if each witness had to be
recalled later to respond to claim emerging from the opponent’s
case which the witness might be able to elucidate. In the interest of
finality and convenience of witnesses, it is clear that all
matters
must, as far as possible, be dealt with at a single opportunity.
There can thus be no doubt that there is a clear responsibility
on a
cross-examiner to cross-examine if a witness’s account is
rejected.’
(See also Small v
Smith
1954 (3) SA 434
(SWA)).
[40] The effect of a
failure to cross-examine a witness is instructively dealt with in R v
M
1946 A.D. 1023
at 1027-1028 where Davis AJA remarked-
“
Counsel
for the Crown stressed the fact that the defence story was never put
to the Crown witnesses, who were hardly cross-examined
at all …In
this connection reference may be made to the House of Lords case of
Browne v Dunn, which is to be found reported
in full only in 6 R. 67…
but the relevant extracts from the speeches are … summarized
by Phipson, Evidence (7th ed.,
p.460) :-
‘
As
a rule a party should put to each of his opponent’s witness in
turn so much of his own case as concerns that particular
witness, or
in which he had a share. . . . If he asks no questions he
will, in England, though not perhaps in Ireland,
generally be taken
to accept the witness’s account. . . . Moreover, where it is
intended to suggest that the witness is not
speaking the truth upon a
particular point, his attention must first be directed to the fact by
cross-examination, so that he may
have an opportunity of explanation.
… Failure to cross-examine, however, will not always amount to
an acceptance of the
witness’s testimony, e.g. if the witness
has had notice to the contrary beforehand, or the story is itself of
an incredible
or romancing character…’
These remarks are
not intended to lay down any inflexible rules even in civil cases,
and in a criminal case still greater latitude
should usually be
allowed.”
[41] It is also
apposite to refer to what the Constitutional Court had to say in this
regard in President of the Republic of South
Africa v South African
Rugby Football Union
2000 (1) SA 1(CC)
at paragraphs 61 and 62. There
the Court said :-
“
[61]
The institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general rule it
is essential,
when it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct the witness’s
attention
to the fact by questions put in cross-examination showing that the
imputation is intended to be made and to afford the
witness and
opportunity, while still in the witness-box, of giving any
explanation open to the witness and of defending his or
her
character… This rule was enunciated by the House of Lords in
Browne v Dunn [(1893) 6R 67 (HL)] and had been adopted
and
consistently followed by our courts.
[62] The rule in
Browne v Dunn is not merely one of professional practice but ‘is
essential to fair play and fair dealing
with witnesses’….
[63] The precise
nature of the imputation should be made to the witness so that it can
be met and destroyed, particularly where
the imputation relies upon
inferences to be drawn from other evidence in the proceedings. It
should be made clear not only that
the evidence is to be challenged
but also how is to be challenged. This is so because the witness must
be given an opportunity
to deny the challenge, to call corroborative
evidence, to qualify the evidence given by the witness or others and
to explain contradictions
on which reliance is to be placed.’
(See also Sv Boesak
[2000] ZACC 25
;
2001 (1) SACR 1
(CC) para [26])
[36] I have scoured
the record and could not find a single sentence put to Tshungu by the
company’s representative at the
arbitration hearing, about the
conversation between him and Windt at 8H30. The company failed to put
what it now calls a “singular
important fact” or the most
important evidence to Tshungu. No reason was given for the omission.
There may be a few reasons
why it was not done ranging from the
incompetence, forgetfulness or carelessness of the cross-examiner or,
on the other hand, it
may be that it was not the company’s case
that there was a conversation or confrontation at 8H30 on 2 January
2010. In my
view, the most sensible explanation, based on the
totality of the cross-examination of Tshungu and his witnesses, is
that it was
never the company’s case that the confrontation
occurred on that day or in the manner that Windt testified. I say
this because
the company’s version as to what happened at the
line-up was put to Tshungu, and he responded thereto.
[37] All the
company’s witnesses’ relevant testimonies i.e. Windt, De
Bruin and Shebango were put to him but not a single
word was said
about Windt’s evidence relating to the 8H30 confrontation.
[38] I fail to
understand the argument that the arbitrator disregarded the evidence
that Tshungu committed the same misconduct in
the past. That evidence
was irrelevant. The company’s case was not that he was
insubordinate on more than one occasion. The
only evidence about the
previous occasions was Windt’s evidence to the effect that:
‘
Yes,
he had sort of two times before, he just starts talking without
consulting with me, to the line-up.’
When
those previous occasions occurred is unknown. Why they were not
reported is unknown. The details as to what happened there
is
unknown. It was also never the company’s case that the previous
occasions formed part of their case. It does not appear
in any of
their various review grounds. So, in effect,
the
arbitrator is criticised for not considering irrelevant evidence.
[39] The court
a
quo
found that the arbitrator failed to acknowledge the
concession albeit made temporarily by Julius Nome that Tshungu did
address the
line-up. The concession that the court
a quo
is
referring to is more a misunderstanding than a concession. The
context to illustrate the point; after Nome testified that Tshungu
did not address the line-up, the record reflects the following during
his cross-exmination:
‘
Ms
Ramafolo: You sat down. Okay. Mr Shebango came here and gave
evidence that Dickson took over the line-up and started talking
about
union activities were you aware of that?
Julius: No
Ms Ramafolo:
You were not aware of that. But did Dickson say anything at
all?
Julius: No
Ms Ramafolo:
Who from the union addressed the workers?
Julius: It was
Dickson.
Mr Ramafolo: So
Dickson did address. So…
Julius: Not
that day, the following day, because there was…
(inaudible)…There were an issue which was not finished.
If I can remember in fact I remember the following day the applicant
did spoke (sic).
Ms Ramafolo: I
want to put it to you that according to the evidence that Dickson
gave here, that the people were talking about
food parcels there is
just no way Dickson could have kept his mouth shut about that.
Julius: I
cannot remember him talking. What I remember, this issue was
raised by one Jame Baloyi. He was talking
to the foremen.
It was an issue that some of the people did not get food at all and
some of them got rotten food.
Ms Ramafolo:
That is true. Thank you very much, I do not have any further
questions.’
[40] It is clear
that Nome made a
bona fide
mistake which he immediately
corrected. I am not surprised that Ms Ramafolo, on behalf of the
company, did not take it any further.
It is clear that she also
accepted that it was a mistake. In my view, the court
a quo
erred by classifying the mistake as a temporary concession, if there
is such a thing.
[41] At paragraph 8
of its judgment, the court
a quo
said:
‘
For
these reasons it would appear to me that the entire award is focussed
on the question of whether Tshungu was guilty of insubordination
and
engaged in activities which hindered the company’s production.’
[42] I must confess,
I do not understand this paragraph. Those were the charges that
Tshungu faced. The award was supposed to focus
on those issues in
order to ascertain whether he committed the alleged misconduct.
[43] In paragraph 9
of its judgment, the court
a quo
misdirected itself by stating
that the only probability that the arbitrator used to come to his
conclusion was the fact that Shebango
could not hear. The arbitrator
inter alia
referred to the fact that Windt could not explain
what Tshungu was talking about at the line-up. He stated that Mr
Nome’s
evidence was corroborated by Tshungu and the fact that
Windt did not report the incident. It is clear that the arbitrator
considered
and took into account much more than what the court
a
quo
said he did. It is also incorrect to say that the arbitrator
“focussed entirely” on whether Tshungu addressed the
line-up
without permission. He also dealt with the loss of production
charge. It is clear that the court
a quo’s
criticism of
the arbitrator was misplaced. Did the arbitrator apply his mind to
the material facts?
[44]
The arbitrator was aware that he was faced with two diametrically
opposed versions. He was aware that he had to look at the
probabilities in order to decide which version to accept and which to
reject. In
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others,
[5]
it was said that:
‘
[5]
On the central issue, as to what the parties actually decided, there
are two irreconcilable versions. So, too, on a number
of peripheral
areas of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving
factual disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed issues a court
must make findings on (a)
the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As
to (a), the court's
finding on the credibility of a particular witness will depend on its
impression about the veracity of the
witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the witness'
candour and demeanour in the
witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv)
external contradictions with
what was pleaded or put on his behalf, or with established fact or
with his own extracurial statements
or actions, (v) the probability
or improbability of particular aspects of his version, (vi) the
calibre and cogency of his performance
compared to that of other
witnesses testifying about the same incident or events. As to (b), a
witness' reliability will depend,
apart from the factors mentioned
under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to
experience or observe the
event in question and (ii) the quality,
integrity and independence of his recall thereof. As to (c), this
necessitates an analysis
and evaluation of the probability or
improbability of each party's version on each of the disputed issues.
In the light of its
assessment of (a), (b) and (c) the court will
then, as a final step, determine whether the party burdened with the
onus of proof
has succeeded in discharging it. The hard case, which
will doubtless be the rare one, occurs when a court's credibility
findings
compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former, the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.’
[42] Although the
arbitrator did not make express credibility findings in respect of
the witnesses, it is clear that he found Tshungu’s
version
probable and therefore credible. This reasoning and award clearly
indicate that he found the company’s case was improbable
and
therefore not credible. Was this a decision that a reasonable
arbitrator could reach?
[43] Windt testified
that Tshungu took over the line-up and discussed “stuff about
the union” with the people. It later
transpired that he did not
understand the language that Tshungu used and therefore had no basis
to say he discussed “union
stuff”. Tshungu’s
actions, according to Windt, were of such a nature that he felt
disrespected and as if he was not
in control, yet he did not ask
Shebango what Tshungu said. He did not immediately lodge a complaint
against Tshungu. He did not
report the incident. His conduct was
clearly not that of a person who had been disrespected or whose ego
was bruised. Even after
the 8H30 confrontation when he was invited to
lodge a complaint he did not do so.
[44] Shebango’s
evidence is also improbable. He was in charge of the line-up. He saw
Tshungu addressing the line-up. Tshungu
did not have his permission
to address the workers, but yet he did not reprimand Tshungu. He must
have been within hearing range.
It is improbable that Tshungu would
address the entire shift ‘A’ employees in a soft and
gentle whisper. In fact, Windt
testified that “the people was
(sic) intimidated by the way that they were spoken to”. It is
improbable that Tshungu
would intimidate co-workers by speaking
softly with them. It seems to me, that the arbitrator concluded that
Shebango was not being
truthful when he said he could see Tshungu
speaking but could not hear him. Tshungu also undermined him, yet he
paid no mind to
what Tshungu was saying.
[45] I have already
dealt with the evidence relating to the 8H30 confrontation. It was
denied by Tshungu. The company’s version
was not put to
Tshungu. The arbitrator rejected, by implication, Windt’s
version.
[46] De Bruin’s
evidence that 20 minutes of production time lost for the day reduced
the average platinum carrying material
produced by shift ‘A’
from an average of 2 943 to 460 is highly improbable. In any
event, his evidence was clear
that equipment failure also contributed
to the loss. He could not explain why no loss is attributed to
Tshungu’s conduct
in the official reports. Tshungu also put his
version, that he addresses the line-up on 3 January 2010 and not 2
January 2010 to
De Bruin. The implication being that he was not
responsible for any loss on 2 January 2010. Faced with the
shortcomings and lack
of proper explanation, the arbitrator’s
finding that the link between Tshungu’s conduct and the loss of
production
was not shown is one that a reasonable arbitrator could
reach.
[47] The arbitrator
found that Nome corroborated Tshungu’s version. He said the
following in this regard:
‘
The
applicant’s third witness Mr Nong (sic) testified that the
applicant did speak during the line-up. His evidence
was
supported by the applicant.’
[48] It is clear
that the arbitrator omitted the word “not” between did
and speak. It must be so otherwise the subsequent
sentence would not
make sense.
[49] The arbitrator
weighed both versions; he considered their respective weaknesses and
strengths and concluded that Tshungu’s
evidence was more
probable. He found that the one version was corroborated whereas the
other was not. He endeavoured to show that
at first glance the
company’s case seemed solid but if one scratched deeper it
became clear that there was more than meets
the eye.
[50] It must be
remembered that Tshungu’s evidence was that he was only
informed about the charges on 11 February 2010, one
day after he had
a heated meeting with the company and one month and nine days after
the alleged misconduct. All this happened
contrary to the company’s
guidelines that read as follows:
‘
The
main purpose of a formal hearing is to afford an employee the
opportunity to state his/her case.
1.
In preparing for an inquiry the following
should be ensured:
1.1
The employee should be given 48 hours
written notice of the pending enquiry.
1.2
The hearing should be held as soon as
reasonably possible, preferably within five (5) days of the alleged
offence having come to
the employer’s attention. The
employer must inform the employee of the alleged transgression within
forty eight (48)
hours of the transgression being drawn to the
employer’s attention.’
(My
underlining)
[51] There was no
explanation for the delay in this matter. Windt testified as follows
during cross-examination:
‘
Mr
Mabaso: What happened on the 3
rd
January?
Mr Windt: I
cannot recall the 3
rd
January. The only thing I did on the
3
rd
January that was talk to my superior about what
(INAUDIBLE) the charges.’
Although the
transcript is incomplete, the only inference that one can draw from
the above is that Windt brought the charges under
his supervisor’s
attention on the 3
rd
of January 2010. The transgression
was therefore brought to the company’s attention on the 3
rd
of January 2010 and it did nothing until the 11
th
of
February 2010. No explanation was given. This obviously strengthened
Tshungu’s version that the whole matter was contrived
as a
result of his actions during the meeting of the 10
th
of
February 2010. The arbitrator essentially followed an all or nothing
approach. If the company’s version was probable then
it
followed that Tshungu was guilty, if Tshungu’s version was
probable then he was innocent. He found, based on the probabilities,
that Tshungu’s version was probable. He therefore rejected the
company’s version, including the purported 8h30 confrontation,
where it contradicted Tshungu’s version. This was a reasonable
conclusion.
[52] The company
bore the
onus
to prove that the dismissal was fair. In my
view, the arbitrator’s decision that Tshungu did not commit the
alleged misconduct
on the 2
nd
of January 2010 is not one
which a reasonable arbitrator could not reach. The order of the court
a quo
ought to be set aside because the arbitrator did not
commit a material irregularity at all. It is for this reason that I
said that
the effect of the
dictum
in
Tao Ying
is of no
moment on the facts of this matter.
[53] I accordingly
make the following order:
1.
The appeal is upheld with costs.
2.
The order of the court
a
quo
is set aside and replaced with the
following:
The
application is dismissed with costs.
______________
C J Musi JA
Murphy
et
Setiloane AJJA concur in the judgment of Musi JA
APPEARANCES:
FOR THE APPELLANT:
Mr Makinta
Instructed by E S
Makinta Attorneys Fourways
FOR THE FIRST
RESPONDENT: Adv. A Myburgh SC
Instructed
by Edward Nathan Sonnenbergs Inc Sandton
[1]
[2007]
12 BLLR 1097
(CC) at para 110.
[2]
[3]
2013
(6) SA 224
(SCA) at para 25.
[4]
[
2005]
10 BLLR 939
(LAC) at para 39 – 41.
[5]
2003
(1) SA 11
(SCA) at paragraph 5.