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[2008] ZALCJHB 47
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Gold Fields Mining South Africa (Pty) Ltd Property Division and Others (JR492/07) [2008] ZALCJHB 47 (7 February 2008)
Order
delivered 07-02-07
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG.
CASE NUMBER: JR 492/07
In
the matter between:
GOLD
FIELDS MINING SOUTH
AFRICA
(PTY) LIMITED PROPERTY
DIVISION
APPLICANT
AND
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION FIRST
RESPONDENT
NSIBANYONI
T N.O.
SECOND
RESPONDENT
DUZE
AM
THIRD
RESPONDENT
JUDGEMENT
Molahlehi
J
Introduction
[1]
This is a review in terms of which the Applicant seeks an
order to review and set aside the arbitration award issued by the
Second
Respondent under case number GAJB28753-06, dated 5 February
2007.
[2]
In terms of the arbitration award the Commissioner found
the dismissal to be both substantively and procedurally unfair. The
review application was opposed by the Third Respondent.
Background
[3]
The Third Respondent, who I will refer to as “the
employee” in this judgement, was prior to his dismissal
employed as
an assistant administration officer and an elected
member of the Applicant’s hostel residents committee.
The charges against the employee read as follows:
“
Intimidation-in
that on 02 -08-2006 @ + - 14h00 in the Nkululeko Residence kitchen
you allegedly threatened to shoot and [k]ill
people responsible for
organizing the raid that took place on 01-08-2006.
Behavior prejudice
(sic) to the maintenance of good order- In that on 02-08-2006 at + -
14h00 in the Nkululeko Residence Kitchen
you allegedly tried to
incite people to shoot and kill officials responsible for the raid
that took place on 01-08-2006 while
being in a position of trust as
an HRC member.”
[4]
The charges arose from the alleged
threatening and disparaging comments made by the employee about the
leaders of the National Union
of Mine Workers (the NUM). The comments
were made in the hostel dining hall on 2 August 2006.
[5]
It was alleged that the employee made the
statement to the effect that the NUM leaders deserve to die because
they were responsible
for the raid that led to the arrest of two of
his brothers. The employee is further alleged to have said that the
killings that
took place at East Driefontein would happen at
Goldfields, the Applicant’s workplace.
[6]
The allegations were reported to management
of the Applicant and thereafter an investigation was initiated which
resulted in the
charges being proffered against the employee.
[7]
Mr Vimba testified on behalf the Applicant
during the arbitration hearing. He testified that the employee joined
him and two of
his fellow employees, Tendays and Musabe in the dining
hall on the day in question. At the time the employee entered the
dining
hall they were discussing the raid that had taken place at the
hostel. It would seem the raid was conducted against people who were
illegally staying in the hostel.
[8]
It would appear that the employee entered
the dining hall at the point when Vimba was saying that there was
nothing wrong with the
raid that had been conducted. The employee
joined in the discussion and indicated that his brothers were
arrested as a result of
the raid and blamed the NUM for the arrest.
[9]
The employee in his testimony confirmed
that he joined the three employees on the day in question and found
them discussing the
arrest which had been made in the hostel. He
testified that during the discussion Musabe enquired from him where
he was when the
arrests were made. He further testified that whilst
he was speaking to Musabe, Vimba interjected and accused him of
talking too
much. He did not pursue the discussion any further but
left for his work station where he continued with his work until
knock off
at 12H50.
[10]
After his dismissal the employee referred
an unfair dismissal dispute to the CCMA for conciliation and
thereafter to arbitration.
Grounds
for review and t
he award
[11]
After analyzing the evidence before her the Commissioner concluded
that the dismissal of the employee was both substantively
and
procedurally unfair. In her award the Commissioner reasoned as
follows:
“
According to
the evidence led by both parties, there seems to be tension among
different tribes which influence the choice of Unions
they belong to.
However, to dismiss the applicant based on evidence that is
contradicted by some of the witnesses is unacceptable.
The applicant
was therefore victim of this and the respondent relied on evidence
that was disputed by other witnesses to the incident
between Vimba
Linda and the applicant. The respondent should have been more
cautious of Vimba’s evidence, considering the
fact that Vimba
is an active member of NUM.”
[12]
The Applicant in its grounds of review contended that the
Commissioner was guilty of misconduct, committed across the
regularity,
and exceeded her powers as contemplated in section 145 of
the Labor Relations Act 66 of 1995 (LRA). The award was
accordingly
challenged
on three grounds.
[13]
The first ground relates to the inference
drawn against the Applicant for failing to call Musabe to testify
during the arbitration
hearing. Musabe is one of the employees
who was in the dining hall and partook in the discussion that led to
the employee
being charge with intimidation. He testified on behalf
of the Applicant at the disciplinary hearing.
[14]
An adverse inference can be drawn by the
Court or the Commissioner if a party fails to produce a witness who
is available to give
evidence which is relevant. See Similane &
other v Letamo Estate (2007) 28 ILJ 2053 (LC), Glean Eagle Farm Dairy
v Schoobe
149 (1) SA (A) and SOS Kinder International v Effie Lentin
Architects
1993 (2) SA 481
(Nm HC).
[15]
The reason for drawing the adverse
inference in a case where a party fails to produce a witness who is
available to testify was
set out in Eligin Fire Clays Ltd v Webb
1947
(4) SA 744(A)
at 749 as follows:
“
It
is true that if a party fails to place evidence of a witness who is
available to elucidate the facts before the trial court,
this failure
leads naturally to the inference that he fears that such evidence
would expose facts unfavourable to him. But the
inference is only
proper one if the evidence is available and would elucidate the
facts.”
[16]
Turning to the facts of the present case,
there is no evidence on the record indicating that Musabe was
available to give evidence
and the Applicant deliberately refrained
from calling him as a witness.
[17]
It would seem to me that if any inference
was to be drawn it ought to be drawn against the employee for not
calling Musabe. He testified
that Musabe was his witness who could
corroborate his version.
[18]
The other inference which the Commissioner
drew against the Applicant was failure to produce the clocking card
showing the time
periods of the movement of the employee between his
work station and the dining hall on the day in question. The person
who raised
the discrepancy was the employee.
[19]
In my view the Commissioner misapplied the
rules of evidence and ought not to have drawn the adverse inference
against the Applicant
for not calling Musabe. The Commissioner also
failed to appreciate the task that was before her. The issue of time
had little bearing
on the issue that the Commissioner had been called
upon to determine. The Commissioner focused her mind on the
conflicting versions
relating to the time the employee would have
been in the dining hall instead of focusing on determining whether
the employee had
issued threats against the NUM leadership on the day
in question. It is common cause that the employee did on the day in
question
join the three employees in the dining hall and following
the discussion the employee had with the other employees a complaint
of intimidation was reported to the management.
[20]
The second attack on the award concerns the
finding of the Commissioner that:
“
The
respondent should have been more cautious of Vimba’s evidence,
considering the fact that Vimba was a member of the NUM.”
[21]
This finding shows total lack of
appreciation by the Commissioner of the task she was faced with.
There is nothing in the record
that provides a basis for this
conclusion. It was never put to Vimba during the hearing that his
evidence was tainted because he
was a member of the NUM. In this
regard it is apparent that the Commissioner came to this conclusion
after considering and reviewing
the evidence which was presented at
the disciplinary hearing. In other words the Commissioner’s
mind focused on what was
presented at the disciplinary hearing and
not what was before her. A closer reading of the award reveals that
the Commissioner
did not consider the evidence which was presented
during the arbitration.
[22]
The third ground of review is that the
Commissioner did not apply her mind to the evidence concerning
procedural fairness of the
disciplinary hearing.
[23]
The record reveals no evidence that the
dismissal was procedurally unfair. The employee complained that the
procedure was unfair
because:
“
The
Chairperson was the hostel manager. When I requested that maybe they
should change a Chairperson to be a white person, then
they refused.”
It
is evidently clear that the above information cannot constitute
evidence or a basis upon which a conclusion could be drawn that
the
dismissed was procedurally unfair.
[24]
I am of the view that for the above reasons
the arbitration award stands to be reviewed.
[25]
In the premises the following order is made:
a.
The arbitration award issued by the Second Respondent on 5 February
2007 is reviewed and set aside.
b.
The matter is remitted back to the First Respondent for consideration
by a Commissioner other than the
Second Respondent.
c.
There is no order as to costs.
___________________
MOLAHLEHI
J
DATE
OF HEARING :
23
November 2008
DATE
OF JUDGMENT :
07 February
2008
APPEARANCES
For
the Applicant : M.P.Makhubela
Instructed
by
: LEPPAN BEECH INCORPORATED
For
the respondent : L. Hollander
Instructed
by
: NOVENI EDDY KUBAYI INCORPORATED