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[2017] ZALAC 73
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National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (JA43/2017) [2017] ZALAC 73; [2018] 3 BLLR 267 (LAC) (28 November 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA 43/2014
In the matter between:
NATIONAL
UNION OF MINEWORKERS
First Appellant
MWACHANDA
M.M
Second Appellant
and
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First Respondent
M RAMOTSHELA
N.O.
Second Respondent
RUSTENBURG PLATINUM MINES
LIMITED
Third Respondent
Heard:
28 August 2015
Delivered:
28 November 2017
Summary:
Employee dismissed for assault of his shift supervisor. At
arbitration the commissioner found the dismissal substantively
unfair
and awarded re-employment. The Labour Court on review found that the
arbitration award was unreasonable and remitted the
matter back for
re-hearing before another commissioner. The employee and his union
appealed the judgment. On appeal found that
Labour Court did not err
in remitting the matter to the CCMA. Appeal dismissed with costs.
Coram:
Tlaletsi DJP, Ndlovu JA and Savage AA
Judgment
SAVAGE AJA
Introduction
[1]
This
is an appeal against the judgment of the Labour Court (Wilken AJ),
with the leave of that Court, in terms of which the arbitration
award
of the second respondent, the commissioner, was set aside and the
unfair dismissal dispute of the second appellant, Mr M
M Mwachanda
(the employee), was referred back to the first respondent, the
Commission for Conciliation, Mediation and Arbitration
(the CCMA),
for re-hearing at the earliest possible opportunity before a
different commissioner.
[2]
Prior
to his untimely death, our colleague Ndlovu JA was engaged with the
writing of this judgment. His death accounts for the delay
in the
delivery of this judgment in this matter, for which this Court
sincerely apologises.
[3]
At
the outset of the hearing, and without objection from the third
respondent, Rustenburg Platinum Mines Ltd (the employer), the
appeal
was reinstated. This followed the appellants’ failure to file
the record within the time periods prescribed in Rule
5(8) of the
Rules of the Labour Appeal Court.
[4]
The
background to the matter is as follows. The employee was dismissed,
following a disciplinary hearing, for the assault of his
shift
supervisor, Mr Petrus Muller; failing to work according to
established standards and procedures in omitting to report a machine
breakdown; and insulting and/or abusive language. This followed a
dispute, which arose between the employee and Mr Muller during
the
night shift on 6 August 2009. While it was not in dispute that the
employee swore at Mr Muller, the employee stated that Mr
Muller then
hit him in the face in the presence of another employee, Mr Benny
Stander. Both Mr Muller and Mr Stander denied this
and stated that Mr
Muller responded by repeatedly saying “
thank
you”
to the employee. Their evidence was that the employee attempted to
hit Mr Muller, first with a pinch bar, then with a long steel
pole
and finally with an 8-pound hammer. Although the employee admitted
having struck Mr Muller with the steel pole, he claimed
to have acted
in self-defence.
[5]
Mr
Muller, at his own disciplinary hearing, was found to have committed
assault but was not found to have made racially offensive
remarks to
the employee. On appeal, Mr Muller’s behaviour was stated to be
“
unacceptable
”
but he was not dismissed from employment.
Arbitration award
[6]
Aggrieved
with his dismissal, the employee referred an unfair dismissal dispute
to the CCMA for determination. He contended that
his dismissal was
unfair in that discipline had been applied inconsistently in that Mr
Muller had not been dismissed. At arbitration,
the employee’s
witnesses testified that Mr Muller had directed racially abusive
language at the employee.
The commissioner identified there to be two irreconcilable versions
concerning the alleged assaults and the allegation of racial
abuse,
but rejected the evidence of Mr Stander and Mr Muller as improbable,
while accepting the employee’s version as “more
plausible”. This was despite the fact that the allegation of
racial abuse had not been put to the employer’s two witnesses
in cross-examination. Furthermore, although the commissioner found
that the employee exceeded the bounds of self-defence, his dismissal
was found to be substantively unfair and he was re-employed with
effect from 1 August 2009.
Judgment of the Labour Court
[7]
The
employer sought the review of the arbitration award by the Labour
Court. The Court found that the commissioner did not apply
the
appropriate
test
to evaluate the probabilities of the two irreconcilable versions
before him, in the manner detailed in
SFW
Group
Limited and Another v Martel Et Cie and Others (SFW).
[1]
This was so in that the alleged racial abuse was never put to either
Mr Muller or Mr Stander during the course of their evidence
in chief
or in cross-examination. Furthermore, the Court found that the
commissioner did not
appreciate the bounds of the defence of self-defence in
finding that the employee’s assault exceeded such bounds. As a
result, the arbitration award was found to be fatally flawed
in that
the commissioner had
misconceived
the nature of the enquiry before him and it was one that a reasonable
commissioner could not reach on all the material
before him. Since
many of the factual disputes before the commissioner required careful
examination and determination, the Court
set the arbitration award
aside and referred the matter back to the CCMA for hearing before
another commissioner
at
the earliest possible opportunity.
Grounds of appeal
[8]
The
first appellant, the National Union of Mineworkers, and the employee
appeal against the judgment of the Court
a
quo
on
a number of grounds, including that the judge erred both in failing
to find that the employee was provoked by Mr Muller, and
in finding
that the allegation of racial abuse was not put to him in his
evidence. Since the arbitration award was reasonable,
the Labour
Court erred in setting it aside and remitting the matter to the CCMA
for a hearing before another commissioner.
[9]
The
employer opposed the appeal contending that the Labour Court
correctly determined that the commissioner had failed to consider
the
credibility, reliability and probabilities in the evidence before him
and that the allegation of racial abuse was not put to
either Mr
Muller or Mr Stander in cross-examination. Since on the facts, the
employee was guilty of assault, the commissioner ought
to have stated
as much and for this reason alone the arbitration award is
reviewable. Nevertheless, it was stated that the matter
was properly
ordered to be remitted to the CCMA for hearing before a different
commissioner since the Labour Court was not in a
position to
determine the matter. Consequently, the employer sought that the
appeal be dismissed with costs.
Evaluation
[10]
This
Court has emphasised that the decision in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(
Sidumo)
[2]
does not mean
“…
that
the grounds of review in section 145 of the Act are obliterated
[but]... that they are suffused by reasonableness
.”
[3]
In
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others (Gold
Fields
)
[4]
it was stated that:
‘…
where
a gross irregularity in the proceedings is alleged, the enquiry is
not confined to whether the arbitrator misconceived the
nature of the
proceedings, but extends to whether the result was unreasonable, or
put another way, whether the decision that the
arbitrator arrived at
is one that falls in a band of decisions to which a reasonable
decision-maker could come on the available
material
.’
[5]
[11]
The
erroneous recordal or categorisation of an issue by the arbitrator
will not justify the setting aside of the award unless such
error is
material to the outcome, caused unfairness or prejudice
[6]
and where (as
was the case in
National
Union of Mineworkers v
Samancor
Ltd
[7]
where the
arbitrator erroneously categorised the dismissal) it results in an
award which is so unreasonable that it falls to be
set aside.
[8]
[12]
However,
a
resolution
of factual disputes is at the core of the commissioner’s task
in arbitrating a dispute between parties. For compelling
reason, the
same technique to be employed by a Court is to be employed by the
commissioner when faced with irreconcilable versions,
as was set out
in
SFW
[9]
:
‘
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,
(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 other factors mentioned under
(a) (ii), (iv) and (v) above, on (i) the opportunities she 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
the 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.’
[13]
The
Labour Court correctly determined that the commissioner had failed to
employ this technique in his resolution of the irreconcilable
versions before him. It was not for the commissioner to arrive at a
decision that one version was probable and another not, without
careful regard had to the evidence in the manner set out above. In
failing to approach the evidence in such manner, with no resolution
of the factual disputes before him, the commissioner quite clearly
arrived at a decision which was unreasonable.
[14]
From
the record, it is apparent that the Labour Court correctly determined
that the allegation of racial abuse had not been put
to the
employer’s witnesses in cross-examination. The purpose of a
proper cross-examination
is
to place a one-sided version, which often results from
examination-in-chief, into proper perspective by eliciting facts
which
place a different complexion on the matter, or by demonstrating
that the witness is untruthful.
In
eliciting from an opposing witness facts which are beneficial to the
case of the cross-examiner’s client and to put such
client’s
opposing and contradictory version to the witness, the decision-maker
is placed in a position which permits evidence
to be properly and
appropriately assessed.
[10]
Since key aspects of the employee’s case were not put to the
employer’s witnesses in cross-examination, and had not
been
canvassed in the evidence of those witnesses in chief, their version
on such aspects was not placed before the commissioner.
The result
was that the commissioner was unable to determine the issue before
him in the manner required.
[15]
For
this reason too, the Labour Court cannot be faulted for finding that
the
award was not one that a reasonable commissioner could reach on all
the material before him. There remained key issues which
required
determination by the commissioner in the appropriate manner. In
setting the arbitration award aside and referring the
matter back to
the CCMA for hearing before another commissioner
at
the earliest possible opportunity, the Labour Court approached the
matter in the manner required of it.
[16]
It
follows that the appeal cannot succeed and there is no reason in law
or fairness as to why costs should not follow the result.
Order
[17]
In
the result, the following order is made:
1.
The
appeal is dismissed with costs.
_______________
SAVAGE
AJA
TLALETSI
DJP Agrees
APPEARANCES:
FOR
THE APPELLANTS:
Mr H
Molotsi
Instructed by M S
Molebaloa Attorneys Inc.
FOR
THE THIRD RESPONDENT:
Mr F A Boda
Instructed by Edward Nathan
Sonnenbergs Inc.
[1]
2003
(1) SA 11
SCA.
[2]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007]
ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28
ILJ 2405 (CC); 2008 (2) BCLR 158 (CC).
[3]
See
inter
alia
Fidelity
Cash Management Service v CCMA and Others
[2008] 3 BLLR 197
(LAC) at para 101.
[4]
(2014)
35 ILJ 943 (LAC) with reference to
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008
(2) SA 24
(CC) (
Sidumo
).
[5]
At
para 14. With reference to s145(2)(i), (ii) and (iii) of the LRA.
[6]
National
Union of Mineworkers v
Samancor
Ltd
[2011]
ZASCA 74
(25 May 2011);
Southern
Sun Hotel Interests (Pty) Ltd v CCMA and Others
[2009]
11 BLLR 1128
(LC).
[7]
[2011] ZASCA 74
(25 May
2011).
[8]
See
paras 8, 10 and 12.
[9]
2003
(1) SA 11
(SCA) at para 5.
[10]
Mafu
v S
[2008] ZAGPHC 38
;
[2008]
2 All SA 657
(W);
S
v Azov
1974 1 SA 808
(T)
810G;
S
v Gidi
1984 4 SA 537
(C);
S
v Nisani
1987 2 SA 671
(O).