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[2008] ZALCJHB 60
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National Union of Mineworkers and Another v Commission for Conciliation Mediation And Arbitration and Others (JR113/06) [2008] ZALCJHB 60 (5 August 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
CASE
NO: JR113/06
In
the matter between:
NATIONAL
UNION OF
MINEWORKERS First
Applicant
SEFAKO
J
Second
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
First
Respondent
MANZANA
D N.O.
Second
Respondent
HARMONY
GOLD MINING CO LTD
Third
Respondent
JUDGMENT
FRANCIS
J
Introduction
1.
The first applicant, the National Union of Mineworkers (NUM) on
behalf of its member, J Sefako the second applicant, brought
an
application to review an arbitration award made by the second
respondent (the commissioner) after she had found that the second
applicant’s dismissal was procedurally and substantively fair.
2.
The application was opposed by the third respondent, Harmony Gold
Mining Company Limited.
The background
facts
3.
The second applicant was employed by the third respondent as a
general worker. He was charged with threatening violence and
intimidation. He is alleged to have shouted and incited the
Sothos to fight the Xhosas after the hostel prefect, Banya, had
assaulted a person at the third respondent’s premises who had
no permission to be there. The second applicant was found
guilty of both acts of misconduct and was dismissed. His appeal
was unsuccessful. He referred a dispute to the first
respondent, the Commission for Conciliation, Mediation and
Arbitration (the CCMA) for conciliation and arbitration.
4.
Several witnesses testified at the arbitration proceedings. The
applicants raised the issue of lack of consistency at the
proceedings. The commissioner issued an arbitration award and
found that the second applicant’s dismissal was both
procedurally and substantively fair.
5.
The applicants felt aggrieved with the award and brought the review
application.
The grounds of
review
6.
The applicants are not challenging the commissioner’s finding
that the second applicant’s dismissal was procedurally
fair.
They have also not challenged the guilty finding on the two acts of
misconduct but have limited their challenge to
a single issue namely
the manner in which the commissioner approached and dealt with the
issue of consistency.
7.
The applicants had argued before the commissioner that the sanction
of dismissal was unfair as it had been inconsistently applied
because
Banya, the security officer (hostel prefect) who had carried out the
initial assault had not been dismissed. The
commissioner was
aware of the argument and understood that had the sanction of
dismissal been imposed in an inconsistent manner,
that the dismissal
would have been substantively unfair. She dealt with this
argument and said that she could not find that
the sanction of
dismissal had been inconsistently applied in that the second
applicant and Banya had been found guilty of different
offences, i.e.
incitement to violence on the one hand and assault on the other.
The applicants contended that while acknowledging
that the argument
about inconsistency generally only applies to the same or similar
offences that when the misconduct for which
a person is dismissed is
less serious than, or a precursor to, a second misconduct for which
the guilty party is not dismissed,
then the sanction of dismissal has
been imposed inconsistently and unfairly. The commissioner’s
reasoning constituted
a material error of law and consequently is
misconduct in relation to her duties as an arbitrator and is also a
gross irregularity
in the conduct of the arbitration proceedings.
Analysis of the
facts and arguments raised
8.
It is common cause between the parties that the transcript of the
arbitration proceedings is extremely bad. The parties
met with
the commissioner who then had her notes transcribed. There is
not a full transcript of the arbitration proceedings.
The
applicants do not take issue with the commissioner’s recordal
of the evidence in her award.
9.
It is not necessary to deal fully with the evidence led at the
arbitration proceedings. The third respondent called three
witnesses and the applicants five witnesses including the second
applicant. All three witnesses called by the third respondent
testified about the incident that led to the second applicant being
charged with misconduct. This is recorded in the award
and the
transcribed handwritten notes of the commissioner. All three
witnesses testified about one Shiya. He had also
asked why
Xhosas assaulted Sothos and said in the presence of the second
applicant that the Sothos must assault the Xhosas.
Shiya had
told the second applicant that the injured person was assaulted by a
Xhosa police and the Xhosas had been assaulting
Sothos for a long
time and asked why the Sothos do not fight. This was
reported to the meeting that the second applicant
and Shiya were
enticing people to fight. The matter was reported to the
seniors and it was decided that action should be
taken, against
Banya, the second applicant and Shiya. They were charged.
10.
It is not entirely clear whether any action was taken against Shiya
and if so what and what the outcome was. The commissioner
had
recorded in her award that at no stage did the first applicant argue
about what had happened to Shiya who was alleged to have
also been
involved in inciting people. This is contrary to what the
commissioner had recorded when she summarised the first applicant’s
arguments.
11.
The commissioner recorded the applicants’ arguments as follows
in her award:
“
The
union argued that the Employers witnesses testified that Mr Shiya had
a gun but no action was taken against him for carrying
a personal gun
on the premises. They argued that the Employers witness
Mziwethemba failed to report the allegation to the
relevant people as
the incident was fabricated. They argued that Litha did not
testify at the hearing and did not report
the matter to the relevant
people. They argued that none of the employer’s witnesses
reported the incident. They
challenged Mr Sefako’s
evidence as the applicant worked night duty and could not have been
at the meeting as alleged.
They argued that the Hostel manager
did not take action based on hearsay but were forced by Mr
Mayixhale. They argued that
the Company took days before taking
action and failed to suspend the applicant whilst they alleged that
they viewed the matter
in a serious matter. They challenged the
fairness of the dismissal as the Security who was the assaulter was
not dismissed whilst
the Company viewed assault in a serious manner.
They further argued that the applicant argued his case through four
witnesses
who corroborated the applicants evidence and the Security
confirmed that if the applicant had actually incited violence then
the
matter would have been reported to them but that was not done as
the story was fabricated”.
12.
The commissioner dealt with the parity or consistency rules as
follows in her award:
“
The
parity rule or consistency applies only to employees who have been
found guilty of the same offence. In the case of Truworths
Limited v Ramabulana NO &
others
(1999) 12 BLLR 1369
(LC) the Labour
Court held that a CCMA commissioner had grossly erred by finding that
the respondent employee had been unfairly
dismissed because her
supervisor was not disciplined for failing to detect the employee’s
dishonest act whilst the supervisor
was guilty of negligence whilst
the applicant attempted to defraud the Company.
Section 192
of the
Labour Relations Act 66 of 1995
places the onus of a fair and just
dismissal on the Employer party.
My role is to consider
whether the dismissal was substantively fair based on the facts,
evidence and the law.
............
The employer must have
consistently applied the rule and dismissal must be the appropriate
sanction for the contravention of the
rule or standard.
..........
Consistency in the
application of the Rule
The applicant admitted
during cross examination that people who were involved in violence
have been dismissed. The Union argued
that the rules were not
applied in a consistent manner as the security person was charged
with assault and not dismissed and Mr
Shiya had a personal gun in the
Mine premises but he was not charged for that.
The Employer party
argued that the rule has been consistently applied and as the
applicant acknowledged that people who were involved
in violence were
dismissed.
The parity rule or
consistency applies only to employees who have been found guilty of
the same offence. I cannot accept the
Unions argument that
there was no consistency as they referred to different acts of
misconduct. At no stage did the Union
argue about what happened
to Mr Shiya as it was alleged that he was also involved in inciting
people.
I
therefore find that on a balance of probabilities the rule has been
consistently applied”.
13.
It is clear from the passage quoted at paragraph 11 above that the
applicants had raised the issue of consistency relating to
Shiya and
Banya. The applicants had argued that Shiya had a gun on him
and was not disciplined. The commissioner recorded
that Shiya
had a gun but failed to record that he had also incited the Sothos to
assault Xhosas. This was evidence led by
the third respondent’s
witnesses. The commissioner found that Shiya was alleged to
have also been involved in inciting
people but that the first
applicant had not argued what had happened to him. She then
found that the rule had been consistently
applied after she had
compared the second applicant’s charges with that of Banya.
14.
The onus is on the third respondent as an employer to prove that the
dismissal was for a fair reason. The third respondent
had to
lead evidence about what discipline had been imposed on Shiya.
It is not clear from the award and the commissioner’s
transcribed handwritten notes what the outcome of Shiya’s
disciplinary hearing was. It is not clear what charges were
preferred against him. This was a crucial aspect of the matter
since the evidence was clear that Shiya committed the same
misconduct
as the second applicant. It is trite that an arbitration award
would be reviewable when the award is one that
a reasonable decision
maker could not reach. The commissioner should have dealt
with the issue of Shiya in her award
and her failure to do so renders
her award reviewable. The commissioner’s award dealing
with the issue of consistency
is not one that a reasonable
commissioner could have reached. It therefore fails the test
and stands to be reviewed and set
aside on this aspect only.
15.
I am mindful of the fact that the matter should be referred to the
CCMA for a
de novo
hearing on the aspect of consistency. I do not wish to make any
comments about whether the fact that Banya, who was charged
with
assault and given a final written warning should have been
dismissed. A commissioner should deal with this issue.
The issue about Shiya needs to be dealt with. It would be
unfair for me to make any pronouncements on it that might then
have
to be binding on the commissioner.
16.
The application stands to be granted.
17.
I do not believe that this is a matter where costs should follow the
result.
18.
In the circumstances I make the following order:
18.1
The commissioner’s finding on the issue of consistency in the
arbitration award dated 22 November
2005 made under case number
FS7911/04 is reviewed and set aside.
18.2
The dispute is referred to the first respondent where the sole issue
that needs to be determined by
another commissioner other than the
second respondent is whether the third respondent acted
inconsistently in dismissing the second
applicant.
18.3
There is no order as to costs.
_____________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANTS
: C ORR
INSTRUCTED BY CHEADLE THOMPSON & HAYSOM INC
FOR THIRD
RESPONDENT
:
ATTORNEY KIRSTY YOUNG
DATE
OF HEARING
: 31 JULY
2008
DATE OF
JUDGMENT
: 5
AUGUST 2008