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[2016] ZALAC 21
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Rustenburg Platinum Mines Limited (Amandelbult Section) v NUM obo Monageng and Others (JA12/2015) [2016] ZALAC 21 (26 May 2016)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JA12/2015
In the matter between:
RUSTENBURG PLATINUM
MINES LIMITED
Appellant
(AMANDELBULT
SECTION)
(Applicant in the Court
a quo)
and
NUM
o.b.o. MONAGENG & OTHERS
First
Respondent
(First
Respondents in the Court
a
quo
)
COMMISSION FOR
CONCILATION,
MEDIATION
AND
ARBITRATION
Second
Respondent
(Second Respondent in
the Court
a quo
)
COMMISSIONER OSMAN
N.O.
Third Respondent
(Third Respondent in
the Court
a quo
)
Heard:
17 February 2016
Delivered
:
26
May 2016
Summary
:
Review
of arbitration award – review test restated – court
a
quo
subjecting the reviewing of the award to an appeal standard thereby
failing to apply the review test – arbitrator faced with
two
versions and made credibility findings against employee - arbitrator
finding that employee’s version unreliable and thus
dismissal
substantively fair – award falling within the ban of
reasonableness – appeal upheld - court
a
quo
’s
judgment set aside.
Coram: Tlaletsi DJP,
CJ Musi
et
Sutherland JJA
JUDGMENT
CJ MUSI JA
[1] This is an appeal
against the judgment of the Labour Court (Molahlehi J) wherein it set
aside an award of the third respondent
(the commissioner).
[2] The first respondent
(National Union of Mineworkers (NUM)) represented all the dismissed
employees, in this matter, who were
employed by the appellant. They
were all charged and found guilty of purchasing false medical
certificates which they tendered
to the appellant as the reason for
their absence from work. They were all found guilty and dismissed.
They referred an unfair dismissal
dispute to the second respondent.
Conciliation failed and the dispute was referred to arbitration. The
commissioner found that
the employees’ dismissals were fair.
Dissatisfied with the commissioner’s award, the first
respondent launched a review
application in the court
a quo
.
The court
a quo
decided in its favour. The appellant
successfully applied, in the court a
quo
, for leave to appeal
to this Court.
[3] Although many
witnesses testified during the arbitration proceedings, the facts of
this matter are relatively simple (five witnesses
testified on behalf
of the appellant, all the employees testified and they also called
two witnesses).
[4] Dr Ditsiele and his
wife practiced in partnership in Saulspoort. Ms Deborah Tsheole and
Grace worked for them as receptionists.
Ms Tsheole issued fraudulent
sick certificates to and in the names of the employees. The sick
certificates were either given to
them personally or to their family
members. The sick certificates were issued at no fixed fee. It
depended on how much the receptionists
were offered. Ms Tsheole
randomly wrote diagnosis on the sick certificates. The sick
certificates issued by Tsheole to each of
the employees were
presented to the appellant as the reason why they did not report for
duty on the dates specified in the sick
certificates.
[5] The issue in dispute
was whether the employees knew or ought to have known that the sick
certificates issued by Tsheole were
fraudulent. It is not necessary
to deal with the testimony of all the witnesses. The germane evidence
can be summarised as follows.
[6] Tsheole testified
that she and her colleague, Grace, wore the same uniforms. They were
receptionists and they never examined
or issued medication to any
person to whom they issued a medical certificate. She confirmed that
on 1 August 2003, she issued a
certificate to Mr Segwe without
examining him or giving him medication. When she was confronted by Dr
Ditsiele about the scam,
she admitted and apologised. She was
dismissed because of her fraudulent conduct.
[7] The employees, except
Mr Ntoagae, testified that they obtained the medical certificates
from Dr Ditsiele’s surgery after
an examination by a lady whom
they believed to be a medical practitioner and who gave them
medication and medical certificates.
They all testified that they
preferred Dr Ditsiele’s surgery as opposed to the mine clinic
which was free or the public hospital.
[8] Mr Segwe testified
that he visited the surgery on 1 August 2003. A lady took his
particulars and examined him and another lady
handed the medication
and the medical certificate to him. He reacted badly to the tablets
and went back to the surgery on 2 August
2003
where he was examined by Dr Motene. Dr Motene took the certificate
and the medication. He was given other medication and a fresh
medical
certificate. He could not explain how he presented the initial
certificate to his employer instead of the one issued by
Dr Motene.
[9] Dr Motene testified
that on 2 August
2003
, he saw Mr Segwe
who had an allergic reaction to the medication that was issued to him
on the previous day. Segwe had the medication
that was issued to him
and he replaced the medication. He could not remember whether he
reviewed the medical certificate that was
issued on 1 August 2003. On
11 August 2004, a year and 10 days later, he wrote the following
letter:
‘
To whom it
may concern
Re Mr FR Segwe
Subject:
Query on medical certificate
Dear Sir/Madam
This comes to help elucidate on
matters relating to medical certificates issued at this practice last
year.
Specifically relating to the
above-mentioned, he was seen at this practice on 1/8/2003 and 02/03
August 2003.
Unfortunately on 1/8/03, he was seen
by rogue elements who were out to commit fraud and this fact was
oblivious to the patient.
He considered their intervention
noble only to emerge now that there was unscrupulous behaviour.
He was therefore issued with a medical
certificate and also medication to which he reacted adversely hence a
repeat consultation
on 2/8/2003 of which I saw him as I was a locum
at this practice on that day …’
[10] Mr Ngobeni, who was
a NUM’s Shop Steward represented Segwe at his hearing and
testified that during the conciliation
process, Mr Segwe presented
two packets of medication issued to him by the lady at the surgery
and the letter written by Dr Motene.
Segwe was reinstated because of
that evidence.
The commissioner made the
following findings with regard to the credibility of the witnesses:
‘
In assessing
the evidence of Ms Tsheole I found her evidence to be consistent with
her previous affidavits made to the investigator
Mr Joubert and also
consistent with the apology letter that she wrote to doctor Ditsiele
on pages 5 and 6 of bundle A.
I could find no
compelling reasons why the applicant would, after having been caught
out, admitting to her part in the scam, and
losing her job as a
result, still falsely implicate the applicants in this scam.
Clearly no evidence was presented to suggest
that Ms Tsheole stood to
benefit in any way from falsely implicating the applicants.
The applicants, on the other hand, who
each testified under oath failed to deal with a number of questions
put to them under cross
examination. The compelling factors in
this regard are that neither of the applicants could produce a
receipt for any of
the relevant consultations. It is also
apparent that while none of the applicants testified that they
presented any symptoms
of unary tract infection (UTI), a large
percentage of the medical certificates reflect this to be the nature
of illness or injury.
The applicants were also evasive when
questioned as to why they did not choose the option of going to the
mine clinic or the public
hospital, which have been free of charge.
It is also extremely convenient that most of the days that the
applicants were
booked off created extended weekends for them.
In order to discredit the evidence of
Ms Tsheole, the applicants relied on the evidence of Mr Segwe.
I found Mr Segwe to be
very unreliable witness in that the evidence
before me was that Mr Segwe had presented 2 packets of medication
(allegedly given
to him by one of the receptionists), at his
conciliation hearing at the CCMA, which ultimately led to him being
reinstated.
However, when he testified, he indicated that when
he went to the surgery to see Doctor Motene, the next day, they took
the pills
that he was given the previous day and replaced them with
other pills. He further also testified that the medical
certificate
that was issued to him by one of the receptionists the
previous day was also taken back the next day and he was issued with
a new
medical certificate. It is therefore not clear as to how
Mr Segwe was able to present the medication that he had reacted
adversely to much later at the conciliation and also to tender the
medical certificate that was given to him by one of the receptionists
to the company.
Mr Segwe could also not clearly
identify which of the receptionist had examined him and which of them
had issued him with medication.
While the evidence of Doctor Motene
was tendered in support of the justification to reinstate Mr Segwe,
Doctor Motene could not
present any evidence which would justify a
similar approach adopted, in respect of any of the other applicants.’
[11] The court
a quo
found that the commissioner did not apply his mind properly to the
facts before him. The court
a quo
made a plethora of factual
findings contrary to the factual findings that the commissioner made
in order to illustrate the point
that the commissioner did not apply
his mind properly to the facts. The court
a quo
reasoned that
this was an irregularity. The court
a quo
set out the correct
review standard in its judgment and concluded that the decision of
the commissioner was unreasonable and therefore
susceptible to
review. In my view, the court
a quo
did not apply the review
standard properly. It unfortunately subjected the arbitration award
to an appeal standard. It embarked
on a reconsideration of the facts
instead of focussing on whether the decision of the commissioner is
one which a reasonable decision-maker
could reach.
In
Heroldt
v Nedbank Limited
,
[1]
the review test was stated as follows:
‘
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 s145(2)(a) of the LRA. For a defect in
the conduct of the proceedings to amount
to a gross irregularity as
contemplated by s145(2)(a)(ii), the arbitrator must have misconceived
the nature of the enquiry or arrived
at an unreasonable result. A
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on 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
.’
[2]
It is well settled that
the review standard, in cases such as this, is reasonableness. If the
decision of the commissioner falls
within the band of reasonable
decisions that a commissioner could make, then, courts should not
interfere with the decision. The
court must thus enquire whether the
decision falls within a range of possible justifiable decisions that
could be reached based
on the facts before the decision-maker and the
law. Courts will sometimes be tempted to interfere because they would
have decided
the issue differently. They should however show
deference to the commissioner, because he/she has been entrusted by
the legislature
to arbitrate and decide labour disputes that are
properly referred for arbitration. Deference however does not mean
that the court
should not properly enquire into the facts that make a
decision reasonable or otherwise.
[12]
In
Head
of Department of Education v Mofokeng and Others,
[3]
this Court clarified the following:
‘
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the inquiry. In the final
analysis, it will depend on the materiality
of the error or
irregularity and its relation to the result. Whether the irregularity
or error is material must be assessed and
determined with reference
to the distorting effect it may or may not have had upon the
arbitrator’s conception of the inquiry,
the delimitation of the
issues to be determined and the ultimate outcome. If but for an error
or irregularity a different outcome
would have resulted, it will
ex
hypothesi
be material to the determination of the dispute. A material error of
this order would point to at least a
prima
facie
unreasonable result. The reviewing judge must then have regard to the
general nature of the decision in issue; the range of relevant
factors informing the decision; the nature of the competing interests
impacted upon by the decision; and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the
LRA. Provided the right question was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, an irregularity or error material to the
determination
of the dispute may constitute a misconception of the
nature of the enquiry so as to lead to no fair trial of the issues,
with the
result that the award may be set aside on that ground alone.
The arbitrator however must be shown to have diverted from the
correct
path in the conduct of the arbitration and as a result failed
to address the question raised for determination.’
[4]
[Footnotes omitted]
[13]
What is therefore required when dealing with gross irregularities is
firstly to determine the materiality of the error or irregularity
and
secondly to determine whether that irregularity resulted in an
unreasonable outcome.
[14]
The court
a quo
did not assess whether the decision of the
commissioner is one that a reasonable decision-maker could reach. It
re-evaluated all
the evidence and findings of the commissioner and
rendered a decision which it perceived to be correct. In the process,
it misconstrued
not only the nature of its inquiry but also the facts
that were before the commissioner. I say so for the following
reasons.
The
court
a quo
stated that:
‘
In
essence of (sic) Dr Motene’s testimony corroborated the version
that Mr Segwe attended the surgery on 1 August 2010 (sic),
was issued
with medication to which he reacted negatively and had to return to
the surgery for that reason the following day 2
August 2010 (sic).
The medication was issued by Tsheole. These facts which were
critical in resolving the conflicting
version of the parties was(sic)
not challenged and therefore remained undisputed.’
[15]
There is no evidence whatsoever that the medication was issued by Ms
Tsheole. Neither Segwe nor Tsheole testified that the
medication was
issued by Tsheole. The commissioner had regard to Segwe’s
testimony and he found (correctly so) that Segwe
was an unreliable
witness. The commissioner’s finding cannot be faulted. Segwe
could not explain how the medical certificate
he gave to Dr Motene
ended up with his employer as the only medical certificate that
explained his absence from work on the dates
stated therein. He could
not also explain how the medication that Dr Motene took and
substituted with correct medication came into
his possession after
his visit to Dr Motene on 2 August 2003 so that he and his
representative could produce it during the conciliation
proceedings.
He expressly testified that he gave the medical certificate to Dr
Motene and that Dr Motene gave him another one.
His testimony is
recorded as follows:
‘
Mr
Commissioner:
When you explained to him what treatment you had, did you show him
the medical certificate that you were
given
Mr
Segwe:
Yes,
I had it on me
Mr
Commissioner:
Did
you show it to him?
Mr
Segwe:
I
gave it to him …
Mr
Commissioner:
What
did he say about the medical certificate?
Mr
Segwe:
He
did not say anything
Mr
Commissioner:
Did
he give it back to you
Mr
Segwe:
No
Mr
Commissioner:
He
kept it
Mr
Segwe:
He
gave me another one …
Mr
Commissioner:
The
one that you got on Friday, the medical certificate that you got on
Friday from the lady?
Mr
Segwe:
It
remained at the surgery
Mr
Commissioner:
With
the doctor
Mr
Segwe:
Yes
Mr
Commissioner:
And
he gave you a new one!
Mr
Segwe:
Yes”
[16]
If anything, the commissioner was lenient towards the doctor because
he did not make any credibility finding against him. The
doctor and
Segwe contradicted each other. The doctor testified that he did not
issue a medical certificate to Segwe. What is most
disturbing about
the doctor’s testimony is that he did not know what medication
was given to Segwe. He therefore did not
make a note about the
medication that caused the negative reaction. When Segwe told him
that he was examined and given the medication
the previous day at
that same surgery, he did not investigate who treated and or gave
Segwe the medication. A year later, he wrote
a letter stating that
Segwe was seen by rogue elements without having any factual basis for
making this bald statement. He did
not know who gave Segwe the
medication. He did not even know whether there was a doctor on duty
on 1 August 2003. He was totally
indifferent and did not do what any
rational and concerned doctor would have done.
[17]
Dr Motene testified that he was confident that the medication that Mr
Segwe gave him was from that practice. When he was asked
during
cross- examination what the medication that Segwe gave him was, he
answered as follows:
‘
Not
really, but I know the biggest culprit in general practice, is
usually Bactrim.’
[18]
Although the commissioner did not reject Dr Motene’s evidence
outright, it is clear that Dr Motene’s testimony
was vague,
improbable and unreliable. The implicit rejection of his evidence was
justified on the evidence before the commissioner.
The
improbabilities in his testimony were exposed during
cross-examination. His testimony did not go unchallenged as the court
a quo
found. The court
a quo
found the following:
‘
It
is important to note that Ms Tsheole could not explain how the doctor
could have issued medication for a sick note issued by
her. She
only conceded that she did issue Mr Segwe with medication when it was
put to her that Dr Motene would be called
to testify about that
fact.’
[19]
Ms Tsheole did not make such a concession. I trawled through the
record and could not find such concession. The court
a quo
found that:
‘
She
(Ms Tsheole) initially stated that the applicants knew who she was
and could therefore not have mistaken her for a doctor.
However, during cross examination she became argumentative on this
point and finally stated that she would give an answer once
she had
seen the transcript of her previous testimony on the point.’
[20]
This is unfortunately also incorrect. It was put to her that during
the previous proceedings, Mr Segwe was presented to her
and she said
that she does not know him. She denied it. It was then put to her
that the transcript of those proceedings would prove
her wrong. She
persisted with her version and after numerous attempts to get her to
change her version; she said she would wait
for the transcript. The
relevant part of the record reads as follows:
‘
Mr
Commissioner:
You are saying to her that you put to her that Mr Segwe was brought
before her to identify and she said
she does not know him.
Today she is saying she know from the location (sic).
Mr
Maimane:
Yes
Mr
Commissioner:
Fine.
Would you like to respond to that M’ am?
Ms
Tsheole:
I
do not recall on the previous hearing whereby it was posed to me
whether do I know Mr Segwe, yes or no …
Mr
Maimane:
If
the record shows that you were given the opportunity to look at Mr
Segwe and then you were also given an opportunity to say if
you know
him and your response was no, you did not know him, that would be a
difficulty …
Ms
Tsheole:
I
will wait for the record and hear what was the response to that.
Mr
Maimane:
No
I am just saying should the record bear me out, will you then concede
that your evidence today is a difficulty. You will
have given
two contradictory versions on a crucial issue.
Ms
Tsheole:
If
he proves that therefore yes, it clearly do state that (inaudible) I
did not give an true evidence, but what happened there,
some of the
things I cannot recall them.
Mr
Maimane:
So
if the record bears me out what would be your explanation for this
serious contradiction?
Ms
Tsheole:
I
will respond to that when the time comes because now I responded to –
because here I responded by saying I do recall being
asked that
question.
Mr
Maimane:
So
you say you would rather have the record brought here to look at it
and then question of the contradiction?
Ms
Tsheole:
Yes,
that will be the time if I will see whether I have given the truth or
not. For now I cannot recall.’
[21]
This is hardly an argumentative witness. She testified about the
issue and was confronted about the transcript by her cross-examiner.
Her stance was quiet rational and cautious. Near the end of her
evidence, the following is recorded:
‘
Mr
Commissioner:
Yes Mr Maimane, before you do that, from my recollection yesterday
there was an issue of the transcript.
I do not know if that has
been canvassed.
Mr
Maimane:
It
has been sorted out. We could not find any record which supports the
questions I put to this witness.
Mr
Commissioner:
So
the witness will not be expected to respond to those questions?
Mr
Maimane:
I
withdraw that question for the record.”
[22]
I do not understand how a concession made in favour of a witness can
be held against her. Ms Tsheole was totally vindicated
by the
transcript and her insistence was not in vain.
[23]
The court
a quo
also found that Ms Tsheole testified that a
receipt book for payment was never used. That too was incorrect, Ms
Tsheole never testified
about a receipt book.
The
court
a quo
found that:
‘
It
is apparent that the commissioner rejected the version of Mr Segwe on
the basis of irrelevant considerations. The Commissioner
failed
to appreciate the purpose for the testimony of Segwe. The
testimony was presented to show that despite the denial
by Tsheole,
she in fact did in her scam issue medication to her victims.’
[24]
The commissioner considered Mr Segwe’s testimony and rejected
it because he testified that he gave the medication to
Dr Motene but
the same medication, miraculously, was presented at the Commission
for Conciliation, Mediation and Arbitration.
[25]
It is clear that the court
a quo’
s credibility findings
were wrong. The substratum for all its findings was wrong because it
misunderstood the evidence.
[26]
The commissioner was faced with two mutually destructive versions. He
had regard to the totality of the evidence before him.
He evaluated
the merits and demerits of each version and thereafter decided that
the version presented by the appellant is the
most plausible. He
therefore found that the appellant succeeded in discharging its
onus
of proving that the dismissal of the employees was substantially and
procedurally fair. He justified his choice with sensible and
rational
reasons. This is a decision which a reasonable decision-maker could
reach. In my view, the order of the court
a quo
ought to be
set aside.
[27]
There is no reason why the costs should not follow the result. The
dictates of fairness and the law requires that it be so.
The court
a
quo
made a costs order against the appellant. That order must
also be reversed.
[28]
I accordingly make the following order:
(a)
The
appeal is upheld with costs.
(b)
The
order of the court
a
quo
is set aside and replaced with the following:
The
review application is dismissed with costs.
_____________
C
J Musi JA
Tlaletsi
DJP and Sutherland JA agreed with CJ Musi JA.
APPEARANCES:
FOR THE APPELLANT:
Adv A Myburg SC
Instructed by Edward
Nathan Sonnenbergs
Sandton
FOR THE FIRST
RESPONDENTS: Adv JG Van der
Riet SC
Instructed by KD Maimane
Inc
Bryanston
[1]
2013 (6) SA 224
(SCA).
[2]
At para 25.
[3]
[2015] 1 BLLR 50
(LAC).
[4]
At para 33.