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[2006] ZALCJHB 24
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Num and Another v Tokiso Dispute Settlement (Pty) Ltd and Others (JR654/03) [2006] ZALCJHB 24 (3 February 2006)
In
the Labour Court of South Africa
Held
in Johannesburg
Case
number: JR 654/ 03
In
the matter between:
Num
First
Applicant
Mpamo
Mokoena
Second
Applicant
and
Tokiso
Dispute Settlement (Pty) Ltd
First
Respondent
M.H
Marcus N.O.
Second
Respondent
Anglo
Operations Ltd
Third
Respondent
Judgment
Cele
AJ
Introduction
[1]
This is an application to review and set aside an arbitration award
which the second respondent issued on 25 February 2003 while
he was
acting under the auspices of the first respondent. The dismissal of
the second applicant was found to have been substantively
fair. The
application is opposed by the third respondent.
Background
Facts:
[2]
Mr Mokoena, the second applicant, was employed as an underground
conveyor belt attendant by the third respondent, Anglo operations.
Three shifts were run by Anglo operations for its staff and times for
these were:
Morning shift – 07
h00 – 15 h00 / 16 h00
Afternoon shift –
15 h00 – 23 h00 / 00h00 and
Night
shift – 23 h00 – 07 h00 / 08h00
[3]
In terms of the shift rooster, if an employee worked a night shift on
2 June 2002 to 3 June 2002, the arbitration commissioner
was made to
regard it as a shift worked for 3 June 2002. Accordingly, a night
shift for commencing on 3 June 2002 to 4 June 2002
he was made to
regard it as a shift for 4 June 2002.
[4]
On 3 June Mr Mokeona was schedule to work a night shift commencing at
23h00 – 7 h00. He duly reported for duty and clocked
in at
around 22h33. At 06H 35 on the following morning he clocked out. He
was due to commence his next shift at 23h00 on 4 June
2002 which
shift would end at 6h35 on 5 June 2002. However, Mr Mokoena went to
consult a medical practitioner who in turn, due
to the nature of
illness, gave Mr Mokoena a sick leave from 5 June 2002 until 8 June
2002 and issued him a medical certificate.
[5]
On that afternoon of 5 June 2002 Mr Mokoena went back to the offices
at his work place but did not find his supervisor a Mr
J.P. De Waal
but instead found one Mr Piet De Wet. Mr Mokoena handed the medical
Certificate to Mr De Wet who then acknowledge
receipt thereof by
attesting his signature to the certificate. Mr Mokoena left the mine
without working his shift.
The
internal misconduct hearing:
[6]
On 20 September 2002, Mr Mokoena was issued with a notice to attend a
disciplinary hearing on 23 September 2002. He was charged
for being
absent from work without permission on 4 June 2002. Mr Le Roux was
the chairman, Mr De Waal was the complainant and Mr
Mtsweni was a
union official who represented Mr Mokoena. Proceedings were delayed
and only commenced on 3 October 2002 which was
about four months
after the alleged incident. Mr Mokoena pleaded not guilty to the
charge.
[7]
The only evidence tendered by Anglo Operations was of a statement
which Mr De Waal had made and he also relied on a print out
from an
attendance monitoring system called Saco which was used at the place
of employment when employees clocked in and checked
out.
[8]
Mr Mokoena was asked by the chairman to explain why he pleaded not
guilty. He said that he was not absent without permission
from work.
He said that the way he was treated at work was not right as he would
be wrongly accused and convicted. He was asked
by the chairman if he
was at work on the day in question and responded by saying he did not
know how to answer that question as
Mr De Waal had said that he had
evidence against him. When the question was repeated, Mr Mokoena said
that he did not recall clearly
if he was at work or not and repeated
the complaint of wrong accusations being laid against him. His
representative asked if it
did not happen that an employee would come
to work and the Saco system would reflect him to be absent without
leave to which Mr
De Waal answered in the negative. The chairman said
that it could happen if the employee did not clock properly or if he
bypassed
the system. Mr Mokoena said that Mr De Waal was not at work
on the day in question and he said that Mr De Waal charged him out of
anger and hatred. He was again asked if he was at work or absent
without permission. He again said that he was not absent without
permission and he said that he had permission given to him by Mr De
Waal. Mr De Waal denied this. When he was asked what the permission
was for, he said that it was for him not to be at work.
[9]
The chairman then asked about three times if Mr Mokoena was at work.
He retorted by saying there was a print out to look at
and that it
was said that the Saco system could not be tempered with. He denied
that he had any data on why he was not at work.
He told Mr De Waal
that if he had been asked why he had not been at work, he could have
explained it. He was asked to state his
case and he said that he had
explained that his supervisor had the data. He was repeatedly asked
to tell what data he was referring
to and he said that Mr De Waal was
to do his job properly. He said that Mr De Waal had a reason why he
lodged the complain even
though he (Mr De Waal) had evidence why he
was not at work. Mr Mokoena complaint about being wrongly accused of
not being polite
with his supervisor, at that enquiry. He repeated
that Mr De Waal knew the reason why he had not been at work. At the
end of the
enquiry, he was found to have committed the misconduct
with which he was charged. On 18 October 2002 he was dismissed.
[10]
On 2 December 2002, Dispute Resolution Committee (DRC) meeting was
held in accordance with the provisions of the disciplinary
code. Mr
Mokoena said that he had submitted a medical certificate to Mr De Wet
on 5 June 2002. The committee was further advised
that in terms of an
“employment history”, Mr Mokoena had reported on duty on
4 June 2002. A “payroll report”
was also presented as
further proof that Anglo Operations had been advised of the sick
leave which was advised of the sick leave
which was recorded on the
reporting system.
[11]
The DRC committee rejected Mr Mokoena’s explanation on the
basis that the issue of a medical certificate was never explained
to
the chairman of the disciplinary hearing and it held further that it
was improper of Mr Mokoena to come up with the issue after
five month
of dismissal. Parties ended in a deadlock and the dispute was
referred for private arbitration in terms of Anglo Operations
disciplinary code and procedures.
Arbitration
proceedings:
[12]
On 14 February 2003 arbitration proceedings commenced, with the
second respondent as the arbitrator. The applicant was represented
by
an official of NUM, a Mr Shakhane. While the third respondent was
represented by a Mr Mqobokazi. The only issue for a decision
was
whether the dismissal was substantively fair or not. If guilty, the
question of the appropriateness of sanction would not arise.
Procedural fairness was also not questioned.
[13]
The arbitration proceedings were not mechanically recorded but the
only recording was one of a long hand which was done by
the second
respondent. When a record of the proceedings was later asked for, the
second respondent read his notes into a mechanical
recording which
was then transcribed. He did not state the evidence tendered before
him but merely gave an analysis of such evidence,
both in the award
and in the reading of his notes.
[14]
As far as can be determined the evidence brought to the second
respondent, was constituted of a bundle of notes taken during
the
internal disciplinary hearing and
viva
voce
evidence of Mr De Wet, Mr Jacobs
and Mr Jacques Le Roux called by the Anglo Operations. Mr Mokoena
testified but did not call any
witnesses.
[15]
A bundle of documents containing minutes of the internal disciplinary
and the appeal hearings was handed in and received as
a correct
record of such hearings. Mr Le Roux also confirmed the correctness of
the minutes.
[16]
It was common cause that Mr Mokoena was absent for the night shift of
4 – 5 June 2002. The justification offered for
his absence at
the arbitration proceedings was a medical reason supported by a
medical certificate which Dr Mashifane had issued
on 5 June 2002. The
evidence tendered on behalf of Anglo Operations was (to the effect)
that the medical certificate was not tendered
at the time of absence
of Mr Mokoena on 4 – 5 June 2002 or at his disciplinary or
appeal hearing. It was said that such evidence
was only tendered by
the union in justification of Mr Mokoena’s absence, at the DRC
meeting of 2 December 2002. The minutes
were relied on to support
that version.
[17]
Mr Mokoena said that he submitted the medical certificate to a
supervisor, Mr De Wet on 5 June 2002 in justification for his
absence
for the period 5 – 8 June 2002.
[18]
The evidence tendered for Anglo Operations was that Mr Mokoena was
charged for his absence on 4 June 2002 and that was to be
understood
to have been for a shift starting at 3h00 on 4 5 June 2002 and to end
at 06H30 on 5 June 2002. Mr Mokoena’s evidence
was that he
understood the period for which he was charged to have been from
23h00 3 June 2002 to 7H00 on 4 June 2002 and that
any explanation of
his absence was in relation to that period. It however remained
common cause in the arbitration proceedings
that Mr Mokoena was on
duty on the shift of 3 – 4 June 2002.
[19]
It was suggested to Mr Le Roux that Mr Mokoena had told Mr Le Roux,
in the disciplinary hearing, that Mr Mokoena was at work
for the
period alleged and that is 3 – 4 June 2002.Mr Le Roux disputed
that assertion and reference was again made to the
minutes.
[20]
Mr Shakhane suggested that the minutes of the disciplinary hearing
were not correct in relation to an explanation which he
said had been
given by Mr Mokoena on his absence. The second respondent held him to
the concession which Mr Shakhane had made at
the beginning of the
arbitration proceedings. That concluded evidence led at the
arbitration proceedings.
The
award:
[21]
The second respondent found that the 4
th
of June 2002, by common practice referred to the night shift of 3 –
4 June 2002 and not 5 June, the night shift for which
it was common
cause that the applicant was absent. He however found that the
subject of the present charge was applicant’s
absence on the
night shift of 4 – 5 June 2002. He found that the submission of
the medical certificate was not to excuse
the applicant for his
absence on the night shift of 4 – 5 June 2002. He opined that
the applicant would have raised the submission
of the medical
certificate as a justification in defense of the charge at his
disciplinary and appeal hearing if its submission
was to excuse him
for such absence.
[22]
The second respondent found that no mention of medical reasons for
his absence or of the medical certificate was made by the
applicant
or his representative at either of the hearings and he found that
that corroborated the third respondent’s version
that no
medical grounds or certificate were offered to excuse the period of
absence charged until the DRC meeting of 2 December
2002, He found
that the failure of the applicant to raise any form of medical
justification for his absence prior to 2 December
2002 meant that
this ground could not be accepted in the arbitration proceedings as a
credible ground of justification for his
absence and he rejected the
same as an after thought.
[23]
The second respondent rejected the applicant’s version which
was that his defense as raised at the previous hearings
did not speak
to his absence on the night shift of 4 -5 June 2002 but was directed
to the previous night shift of 3 – 4 June
2002. He held that,
if indeed the applicant’s version were true, applicant would
simply have said that the charge was unfounded
in that he was present
at work and not absent as charged.
Review
ground
[24]
The only ground for review which the applicant placed reliance on is
that the second respondent failed to apply his mind properly
to the
facts that were before him. As a result of such failure, it was
submitted that he committed a reviewable irregularity.
Analysis
[25]
No statutory reference has been made by the applicant as the premise
on which the review ground is founded. A “reviewable
irregularity” would fall under a “gross irregularity”
as envisaged by section 145 (2) (a) (ii) of the Labour
Relations Act
66 of 1996, the Act. Under common law grounds of review this
application may also be premised due to the allegation
by the
applicant that the second respondent failed to apply his mind
properly to the facts that were before him. See in this regard
:
Nina v Booysen
1992 (4) SA 69
(A) and Khula Enterprise finance Ltd v
Madinane & others (2004) 25 ILJ 535 (LC).
[26]
Section 145 of the Act reads:
“
(1)
Any party to a
dispute
who alleges a defect in any arbitration proceedings under the
auspices of the Commission may apply to the Labour Court for an order
setting aside the arbitration award-
(a)
within six weeks of the date that the award
was served on the applicant, unless the alleged defect
involves the
commission of an offence referred to in part 1 to 4, or section 17,
20 or 21(in so far as it relates to the aforementioned
offences) of
Chapter 2 of the
Prevention and Combating of Corrupt Activities Act,
2004
; or
(b)
if the alleged defect involves an offence referred
to in paragraph (a) within six weeks of the date that
the applicant
discovers such offence.
(2) A
defect referred to in section (1), means –
(a)
that the commissioner –
(i)
committed misconduct in relation to the ,duties of
the commissioner as an arbitrator;
(ii)
committed a gross irregularity in the conduct of
the arbitration proceedings; or
(iii)
exceeded the commissioner’s powers; or
(b)
that an award has been improperly
obtained”.
[27]
The substance of the review application indicates that the
application is therefore founded either on section 145 of the Act
or
on common law.
[28]
It was common cause between the parties that the applicant was
dismissed by the third respondent. In terms of section 192 of
the Act
therefore, the third respondent bore the onus of proving that such
dismissal was for a fair reason.
[29]
Evidence tendered at the arbitration proceedings included a bundle of
documents handed in by the third respondent. The second
respondent
may not reasonably be faulted in the manner in which he admitted and
dealt with the bundle of documents. In search of
the truth, the
second respondent was entitled to investigate any inconsistency there
might have been between evidence adduced at
the arbitration
proceedings and evidence adduced in the internal disciplinary and the
appeal hearings. In doing so, he had to remind
himself of where the
onus of proof lay.
[30]
The first aspect which called for a resolution by the second
respondent, related to the period of the charge. It had to be
proved
by the third respondent whether 4 June 2002 referred to a shift of 3
– 4 June 2002 or 4 – 5 June 2002. The applicant
did not
bear this onus. It was encumbent on the second respondent, in the
performance of his duties, to resolve any conflict or
contradiction
of the parties in relation to this aspect, in his award.
[31]
If the evidence before the second respondent proved that 4 June 2002
referred to the shift of 3 – 4 June 2002, he had
to acquit the
applicant as it was common cause that the applicant worked that
shift. Proof therefore that the applicant was rather
absent from duty
on the shift of 4 – 5 June 2002, would not entitled the second
respondent to return a guilty verdict as
the applicant would not have
been charged for that period. In the words of the applicant, which
are conceded to by the third respondent,
the second respondent would
not be entitled to change the charge leveled against the applicant.
[32]
I am therefore faced with the task of having to determine whether or
not the second respondent changed the charge, as alleged
by the
applicant but disputed by the third respondent.
[33]
There does not appear to be any evidence adduced at the arbitration
hearing by the third respondent to prove that the alleged
common
practice of the third respondent was that 4 June 2002 referred to a
shift period of 4 – 5 June 2002 and not 3 –
4 June 2002.
[34]
In relation to the matter at hand, the second respondent made,
inter
alia
, the following remarks in his award :-
“……
..
at his evidence at the arbitration, grievant sought to
explain this omission by
claiming that his defence as raised
at these hearings did not
speak to his absence on the night
shift
of 4 – 5 June 2002 ( which period is conventionally and
in
company practise denoted as 5 June); it was rather
directed
to the previous night shift of 3 – 4 June when it is
common
cause he was present and reported for duty. He
found
this explanation on the submission that the date of
absence
reflected on the charge notice is 4 June, which date
by
common practice refers to the night shift of 3 – 4 June
and
not 5 June, the night shift for which it is common cause
he was
absent”.
[35]
It must necessarily followed from the above quote that, the second
respondent understood 4 June 2002 to have been reference
to the shift
period of 3 – 4 June 2002 in terms of the convention or common
practice of the company. The second respondent
has filed an
explanatory affidavit and a reply to the request in terms of rule 7A.
He has attempted to resolve this aspect. He
however, has not made any
reference to there being any evidence of the third respondent which
proves such convention or common
practice. Both in his award and in
his explanatory affidavit, the second respondent has failed, in his
duties as a commissioner,
to resolve a contradiction which relate to
an essential allegation of the charge. Should it however be that the
third respondent
did prove the existence of the convention or common
practice, reference to which has hitherto been made, the second
respondent
failed to apply his mind to such evidence. In either way,
the second respondent has in so doing committed a gross irregularity.
[36]
In my findings, the second respondent indeed did change the charge
such that it could conform to the date on which the applicant
was
indeed absent. He has himself conceded in the explanatory affidavit
that he had no power to amend the charge. He thus committed
a gross
irregularity justifying a review.
[37]
I need to touch on another aspect of this case. It relates to the
alleged delay by the applicant to have recourse to a medical
certificate as a defense tool. Such delay appears to have been
measured in terms of the length of time from the period on which
the
applicant was charged till 2 December 2002, when the internal appeal
was heard.
[38]
As practice would have it in very many other cases, the charging, the
holding of the internal disciplinary and appeal hearings
could all
have taken place in June, soon after the alleged misconduct. It does
not appear to be, that the delay in this matter
was attributable to
the applicant. If the defense based on the medical report would have
been sustained, had the internal disciplinary
and appeal hearings
been held in June or soon thereafter, it would be a miscarriage of
justice to hold it against him when the
delay was not due to him.
Order:
1.
The award issued by Commissioner Marcus on
25 February 2003 in case number
Tolko
3 / 10A is reviewed and set aside.
2.
The matter is remitted to the first
respondent for a
do novo
hearing before another commissioner.
3.
The third respondent is ordered to pay
costs of the application.
Date
of hearing
:
15 September 2005
Applicant
Counsel
: Adv Lengane
Instructing
Attorneys :
Maserumule Incorporated
Respondent’s
Counsel :
Instructing
Attorneys
: Leppan Beech Attorneys
Date
of Judgment
: 03
February 2006
Cele
AJ
__________________