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[2006] ZALCJHB 17
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Anglo Operations Ltd (Bank Colliery) v Tokiso Dispute Resolution (Pty) Ltd and Others (JR881/04) [2006] ZALCJHB 17 (5 July 2006)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR 881/04
In
the matter between:
ANGLO
OPERATIONS LIMITED
(BANK
COLLIERY)
Applicant
and
TOKISO
DISPUTE RESOLUTION
(PTY)
LTD
1
st
Respondent
K
SAVAGE
N.O.
2
nd
Respondent
SGUNTSE
TYUMSE
3
rd
Respondent
NATIONAL
UNION OF MINEWORKERS
4
th
Respondent
JUDGMENT
REVELAS
J
[1]
This is an application for review of an award made by the second
respondent (“the arbitrator”) in a private arbitration
held under the auspices of the first respondent.
[2]
The arbitrator held that the dismissal of the third respondent
(“Tyumse”), following a charge of assault, was
substantively
unfair and substituted the applicant’s sanction
of dismissal with a final warning, valid for twelve months. In
particular,
the arbitrator held that Tyumse either acted in
self-defence, or was provoked.
[3]
Tyumse was employed by the applicant as a continuous miner operator.
The person, whom he allegedly assaulted, was one Samson
Mashiloane
(“Mashiloane”), who was employed by an independent
contractor, that has an agreement with the applicant
to carry out
certain mining production work at the mine.
[4]
The incident which gave rise to the assault charge occurred on 12
August 2003 at the applicant’s premises. (The applicant
is a
mine and I will refer to it as “the Mine”). Mashiloane
maintained that he had been assaulted on a mine bus by
Tyumse, who
thereafter had hit him with a mine belt. The two had an argument
about the whereabouts of a two litre bottle of Coca
Cola, which had
been bought by another employee for his crew. According to
Mashiloane, he had left the bottle in question in the
bus some time
before, whereafter it had had gone missing. Tyumse felt Mashiloane
was responsible for the loss, and the latter denied
any
responsibility. That led to the assault.
[5]
Tyumse admitted to the chairperson of the disciplinary enquiry that
he was in the wrong, but said he had lost control. He said
Mashiloane
caused him the predicament of him not knowing what to tell his crew
members about the missing bottle. He said Mashiloane
had humiliated
him. He asked for clemency, which was denied him, since the
chairperson was of the view that the assault was far
too serious
(Mashiloane received stitches) and warranted the severe sanction of
dismissal.
[6]
These findings were upheld in an appeal hearing during which the mine
led evidence on employer consistency. At the arbitration
hearing
also, evidence was led about a specific incident where two other
employees had been dismissed for an assault. One of them
had grabbed
a third employee (van der Merwe) from behind, where he was sitting on
a bar stool in the Mine’s club and caused
him to fall on the
floor, where he was kicked in the face by the other employee. A work
related issue had caused the two dismissed
employees to act in this
way. Another example was also given of an employee who was dismissed
for pointing a fire arm at one of
his co-employees.
[7]
In his request for the appeal, Tyumse stated as follows:
“
This
was not deliberate. I was provoked by the way in which Samson
(Mashiloane), the affected (victim) shouted, insulted, humiliated
and
grabbed me by my overall before my co-workers.
I
therefore ask management to be lenient and consider the fact that I
am a family man. I have dependants to support. Although what
I
committed was totally wrong, but (
sic
)
would like management to give me another chance to redeem myself. I
don’t mean that my actions should be condoned but, I
say I ask
for forgiveness because it just happened”
.
[8]
The appeal chairperson considered that assaults are viewed more
seriously when committed in public and particularly as Tyumse
was a
shaft steward, he had set a bad example with his conduct. He further
stressed that lenient sanctions, such as written warnings
for
assault, would be imposed only where the assault consisted of
offensive language or threats of assault. In other words, where
no
physical violence had occurred, as had occurred in the case in
question. The chairperson of the appeal hearing also observed,
along
the aforementioned lines, that Tyumse’s conduct was
unacceptable, especially because he inflicted injuries which required
medical attention and treatment.
[9]
When the ensuing dispute about Tyumse’s alleged unfair
dismissal was placed before the arbitrator, the Mine placed on
record
that it took the issue of assault seriously and mentioned the fact
that in the recent examples of employer consistency (referred
to
above), none of the decisions to dismiss were overturned by anyone.
In effect, it was argued that all the Mine’s decisions
to
dismiss are immune to interference.
[10]
I do not wish to summarise in any precise detail the evidence which
was lead before the arbitrator. It is not necessary. An
arbitration
hearing is generally accepted in this court, as a hearing
de
novo.
During this arbitration hearing,
the arbitrator heard different accounts of the incident in question,
form two witnesses who did
not testify before the Mine’s
chairpersons who earlier pronounced on the charges in the
disciplinary hearing and the appeal
hearing. They contradicted the
evidence of Mashiloane, and he contradicted his own statement made at
the disciplinary hearing.
[11]
The Mine led the evidence of two eyewitnesses to the incident at the
arbitration hearing. The one was Mr Mthetho Nqawe (“Nqawe”)
who was like Mashiloane, not employed by the mine. The other witness,
Mr Sam Masuku was a mine employee. On their evidence Mashiloane
was
not the totally innocent victim of a brutal assault. According to
both of them, they initially, (before Mashiloane started
crying), had
the impression that the two were only playing, since they were in the
habit of doing so prior to the incident.
[12]
Nqawe specifically said during his evidence in chief, that he would
not agree with the statement that what he saw was not a
fight, but an
assault. Neither of the two witnesses saw Mashiloane being hit with a
belt (which Tyumse denied he did). That is
understandable because
Mashiloane said that the belt incident occurred at South Shaft. Nqawe
saw blood on Mashiloane only later
and then the latter had told him
that he had been hit with a belt by Tyumse.
[13]
Masuku separated the two. According to him, Mashiloane put an open
hand on Tyumse’s chest and then the fight began. Mashiloane
said he never grabbed Tyumse, but only touched him as he was
“
throttling
”
him,
which neither Nqawu nor Masuku mentioned. They also did not hear
Mashiloane swear at Tyumse, which was part of the latter’s
testimony.
[14]
The arbitrator held that, given the burden of proof which rested on
the mine, it was material that the respondent’s witnesses
presented contradictory statements. One of the most important
contradictions was that, in his statement made on 13 August 2003
(a
day after the incident Mashiloane said
“
(b)y
then he said I should disembark from the bus. I did not get out. He
eventually started red with rage he started beating me
with a belt
(cap lamp) belt. Then it was then that Sam and other passengers
started to calm Sguntse down. And finally he
stopped beating me”
.
[15]
The aforesaid statement places the belt assault squarely in the bus,
whereas the evidence of Mashiloane at the arbitration
was that it
occurred at South Shaft. The arbitrator said that because of this
serious deviation, it was difficult to accept Mashiloane
as a
reliable and entirely honest witness. She did, however, find that
Mashiloane had sustained injuries, which were inflicted
by the
applicant and that the Mine had
“
accordingly
discharged the onus to prove that the applicant [Tyumse] is guilty of
assault”.
[16]
The arbitrator then, having found that Tyumse was correctly found
guilty of assault, turned to the second part of her enquiry,
namely
the question of an appropriate sanction. In this regard she found
that the Mine did not discharge the onus of proving that
dismissal
was appropriate. She found that Tyumse was probably provoked or acted
in self-defence and that a sanction short of dismissal
was
appropriate, because the evidence presented at the hearing bore out
such a conclusion.
[17]
At this stage I may just mention that a finding of self-defence and a
finding of guilty on an assault charge, are mutually
exclusive. In my
view, none of the testimonies supported a finding of self-defence,
not even Tyumse’s testimony. However,
I do not think there was
an understanding on the part of anyone, that the self-defence alleged
by Tyumse, was an absolute defence
as it is in criminal law. It was
rather meant as an explanation for his conduct, in circumstances
where Mashiloane was a participant
in the assault, and not a mere
victim thereof. I cannot fault the finding of provocation.
[18]
The overall impression I gained from the evidence was that Tyumse was
probably the aggressor and had overreacted to the provocation.
He
acted in anger. He had lost his temper. However, the arbitrator had
the benefit of physically observing and listening to witnesses
who
did not testify before me or before the disciplinary enquiry. The
record also does not seem to be a verbatim account of what
was said
by the witnesses. That in itself diminished any accurate assessment
of the witnesses substantially. I am therefore reluctant
to interfere
with the arbitrator’s credibility findings. In any event, her
findings on the nature of the assault were not
the only factor which
she took into account in determining the appropriateness of the
sanction. The arbitrator also took into account
that Tyumse had a
clean service record of more than twenty years. She deemed these
factors to be
“
strong mitigatory
factors which should have been considered when determining sanction
against the backdrop of the evidence available
at the disciplinary
hearing”.
[19]
In terms of the Individual Dismissal Dispute and Adjudication
Procedure (“the Dispute Procedure”), entered into
by the
applicant and the fourth respondent, an arbitrator’s award is
reviewable in circumstances where the arbitrator:
1.
did not apply his/her mind to the dispute;
2.
acted unreasonably;
3.
committed an irregularity;
4.
gave an award which is unjustifiable, given
its reasons;
5.
exceeded the powers conferred in terms of
the agreement or terms of reference of the dispute; or
6.
acted in a biased manner or committed misconduct, but not limited to
fraud’.
[20]
The arbitrator was obliged to consider the nature of the assault and
the personal circumstances of the employee. Although I
do not share
her impressions of the nature of the assault, I am not able to find
that she acted unreasonably or did not apply her
mind to the evidence
made available, or that she fell in any way foul of the grounds for
review contained in the Dispute Procedure.
[21]
There are two further aspects of this matter which prevented me from
interfering with the award. Firstly, the fact that the
chairperson
(Mr Kotze) of the disciplinary hearing, did not hear the testimony of
the two eyewitnesses, is rather significant if
it is remembered that
Kotze is one. He saw Mashiloane bleeding, and was told by him what
had allegedly occurred. Perhaps his personal
knowledge of the matter
caused him to decide that the offence in question warranted nothing
but dismissal.
[22]
My second concern is the approach adopted by the appeal chairperson.
According to him, only in cases of assault consisting
of threats or
abuse, would progressive discipline be warranted. In all other cases
of assault, dismissal would be only possible
sanction. This
inflexible approach is not recorded in the Mine’s own
disciplinary record, which categorises assault as misconduct
where
progressive discipline may be applied. Assault certainly does not
fall in the category of misconduct relating to dishonesty,
where
dismissal would almost always follow. This is so because the trust
relationship between the employer and employee is broken
in cases of
fraud and theft. It is difficult to understand why the Mine would
maintain that assault destroys the trust relationship.
It is the
relationship between Mashiloane and Tyumse which had been destroyed
in this case.
[23]
To have only one sanction, and the harshest one possible, for an
offence such as assault, which can vary much in nature, is
unrealistic. The assault in question, is for instance, different from
the one previously mentioned, which took place in the Mine’s
club. That was a cowardly assault. Two people attacked one person
from behind, and when he fell, kicked him in the face. It was
also
not an impulsive act, as was the case in the present matter. It was
premeditated because it related to a work issue and the
assault
occurred after hours. That victim had no part in the attack on him.
Mashiloane was described by witnesses, to have been
in a fight with
Tyumse, even though Tyumse was not the one who ended up crying,
bleeding and requiring stitches, as Mashiloane
did. I do, however,
not believe dismissal was one and only sanction for this misconduct,
given the surrounding circumstances.
[24]
I am mindful that reviews, unlike appeals, are rather concerned with
the manner in which tribunals or arbitrators come to their
conclusions, and not so much with the result itself. The parameters
of a review must be considered against this distinction. In
Carephone
(Pty) Ltd v Marcus and Others
[1998] 11 BLLR 1093
,
Froneman
DJP warned at paragraph 36 of that judgment:
“
As
long as the judge determining the issue is aware that he or she
enters the merits not in order to substitute his or her own opinion
on the correctness thereof, but to determine whether the outcome is
rationally justifiable, the process will be in order”.
[25]
The assault in question was indeed a serious assault. However, before
I interfere and substitute the arbitrator’s sanction
with a
harsher one, depriving a family of a source of income they had relied
on for twenty one years, I must be certain that the
arbitrator did
not apply her mind to the facts, or that she acted unreasonably. She
did not do either. Equally reasonable people
may differ on the
question of sanction. The award is also justifiable, in terms of her
reasoning. Her award is clearly one of a
range of reasonable
outcomes. I therefore decline to set aside the award.
[26]
The application for review is dismissed with costs.
___________________
Elna
Revelas
Judge
of the Labour Court
Date
of hearing: 29 June 2006
Date
of judgment: 04 July 2006
Typed
judgment: 05 July 2006
On
behalf of the Applicant
Adv.
A. Snider instructed by Leppan Beach Attorneys
On
behalf of the third and fourth Respondents
Mr
A.L. Goldberg of Nomali Tshabalala Attorneys