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[2008] ZALCJHB 27
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Alstom Electrical Machines (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR955/07) [2008] ZALCJHB 27 (20 August 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO JR 955/07
In
the matter between:
ALSTOM
ELECTRICAL
MACHINES
(PTY) LIMITED
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
1
st
Respondent
B
DORMAND N.O.
2
nd
Respondent
NUMSA
obo NDEBELE
3
rd
Respondent
JUDGMENT
INTRODUCTION
[1]
The applicant, a manufacturer of electrical
rotating machines, has brought this application to review and set
aside the award of
the second respondent (the commissioner) issued
under case number GA80470 dated 15 February 2007. In terms of the
arbitration award
the commissioner found the dismissal of the third
respondent, Mr Ndebele, (the employee) to be unfair and ordered that
he be reinstated.
[2]
The applicant has also applied for
condonation for the late filing of its supplementary affidavit
including the amendment to its
notice of motion.
BACK GROUND FACTS
[3]
At the beginning of August 1999 the
applicant in an effort to combat the poor production during the night
shifts, introduced a system
known as “load schedule.” In
terms of this system, the machine operators were required to complete
certain forms whenever
they worked night duty.
[4]
On the 4
th
August 1999, the employees including the employee requested a meeting
with management to discuss the new system. The following
day, 5
th
August 1999, Mr Pretorius attended at the night shift and instructed
the employee together with one of his fellow machine operator,
Mr
Malamula to fill in the forms related to the new system. They refused
and instead demanded a meeting with management.
THE LATE OF THE
FILING THE SUPPLEMENTARY.
[5]
The notice of motion together with the
founding affidavit was filed on 20
th
April 2007. The supplementary affidavit was filed on 26
th
June 2007. The reason for the late filing of the supplementary
affidavit was according to the applicant because it discovered when
it consulted with its counsel that there was a need to supplement its
grounds of review which had been omitted from the original
founding
affidavit. The applicant did not file its supplementary affidavit
once the record of the arbitration proceedings became
available.
[6]
In essence the reason for not filing the
supplementary affidavit was according to the applicant due to an
oversight which it became
aware of during consultation with its
counsel. In the supplementary affidavit the applicant seeks to
augment its ground for review.
The applicant tendered costs for the
condonation application.
[7]
Because of the conclusion reached in
relation to the condonation application later in this judgment, I do
not deem it necessary
to the repeat the further grounds of review
raised by the applicant in its supplementary affidavit and the
proposed amended to
the notice of motion.
[8]
I now proceed to deal with the time frames
required to file papers by the applicant in a review application.
[9]
In terms of rule 7A of the Rules of the
Labour Court, a party whishing to review a decision or proceedings of
a body or person performing
a reviewable function, reviewable by the
court has to do so by delivering a notice of motion to the person or
body and to all affected
parties. The notice of motion must call upon
the person or body, in this instance the CCMA to show cause why the
decision of the
commissioner should not be reviewed and corrected or
set aside. The CCMA is further required to dispatch within 10 (ten)
days of
receipt of the notice of motion to the registrar the record
of the proceedings sought to be corrected or set aside.
[10]
The record must be accompanied by the
decision which the applicant seeks to review. The CCMA must inform
the applicant of the dispatch
of the record to the registrar once it
has done so.
[11]
In terms of rule 7A(8), the applicant must
within 10(ten) days
after the registrar has made the record
available, file a notice accompanied by an affidavit amending, adding
or varying the notice
of motion and supplementing their supporting
affidavit or deliver a notice indicating that the applicant
stands by its notice
of motion.
[12]
Any person wishing to oppose the granting of the order prayed
in the notice of motion must, within 10 (ten) days of receipt of the
notice of amendment or notice that the applicants stands by its
notice of motion, deliver an affidavit in answer to the allegations
made by the applicant. Thereafter, the applicant has five days of
receipt of the answering affidavit to file its replying affidavit.
[13]
In the present instance the applicant filed its notice of
motion and supporting affidavit in terms of rule 7A (1) on the
respondent’s
attorneys of record on 20 April 2007. In the
supporting affidavit the applicant set out the reason he believed
that the arbitration
award was not justifiable alternatively that the
commissioner misdirected himself or committed a cross irregularity.
[14]
The CCMA, provided the parties with notice of compliance in
terms of rule 7A (3) on the same day 25 April 2007, together with the
notice to abide with the decision of the Court.
[15]
On 16 May 2007, the applicant’s attorneys filed a notice
indicating that the record was provided to the registrar and that
each of the respondents had simultaneously been served with such a
record. And few days later the applicant sent another notice
advising
the respondents that it intended to stand by its own original notice
of motion and the founding affidavit.
[16]
The applicant failed to serve and file its supplementary
affidavit and amend its notice of motion within the prescribed time
period
and on 14 June 2007 its attorneys addressed the letter to the
respondent’s attorneys wherein it is inter alia stated:
“
1
...
.
2.
We have perused the record and as well as the Affidavits already
filed and it would appear that there are two(2) central issues that
need to be addressed.
3. Firstly, the record
appears to be incomplete in as much as the evidence of Ronald
Watkinson is not contained therein and quite
significantly there are
numerous references to where the evidence was inaudible, and could
not be transcribed. Thus we would request
that their representatives
who attended to at the arbitration meeting in an endeavour to
reconstruct the record.
4. Should this not be
possible it is our submission that the court of review will probably
not be in a position to hear the above
matter.
5. Secondly, and upon
a proper consideration the affidavits filed of record in support of
our client’s Review Application,
there are certain aspects in
the nation to the grounds of Review What client wishes to embellish
upon.
6. To this end of our
client wishes to file a Notice of Amendment and an accompanying
Affidavit.
7. Kindly advise as
per return whether your client would consent to this application and
allow the amendment.
8. This application is
currently being prepared and will be served and filed on your offices
shortly.”
[17]
Thereafter the respondents attorneys responded to the above
letter and inter alia advised as follows:
“
Your client
’
s
opportunity to peruse the record arose upon receipt of it by
yourselves and was complete upon the service by yourself of the
Notice
in terms of rule 7A(8)(b) on these offices.
There is no provision
in law for your client’s attempt at the remedying any failure
on its part to properly address the issues
at this point in the
proceedings.
Our client is
satisfied that the record is a proper record and will not accept any
attempt at amendment and will vigorously oppose
any such attempt.
Our client will also
not accept that the matter be any further delay. According, we are
attending to indexing and paginating the
court file and will have the
matter said down for hearing. A copy of the index accompanies this
letter.
Our client is also
pursuing its application in terms of section 158 (3) of the Labor
Relations Act 66 of 1995.”
[18]
Turning to the principles to apply when dealing
with codonation, it is now well established that in considering
application for
condonation the court has a discretion, to be
exercised judicially upon a consideration of all the facts of the
case. In this instance
the relevant considerations may include the
degree of non-compliance with the rules, the explanation therefore,
the prospects of
success on appeal, the importance of a case, the
respondent’s interest in the finality of the judgment, the
convenience of
the court, and the avoidance of unnecessary delay in
the administration of justice, but the list is not exhaustive-
Foster v Stewart Scott Inc
(1997)
18 ILJ 367(LA)
There is authority that
these factors are not individually decisive, but are interrelated and
must be weighed one against the other.
In this respect a slight delay
and good explanation for the delay may compensate for prospects of
success which are not good. Similarly,
good prospects of success may
compensate for what may be regarded as inadequate explanation and
long delay-
Melane v Santam Insurance
Co. Ltd
1962 (4) SA 531
(A).
[19]
In the present instance, the contention of the applicant that
its failure to serve and file its supplementary affidavit and the
amendment of its notice of motion was due to an oversight is
unsustainable because the applicant’s papers reveal gross
negligence
on the part of its attorneys. The time frames provided for
in the rules are intended to provide an applicant sufficient
opportunity
to peruse the record and assess whether it wishes to
supplement its founding affidavit and amend its notice of motion. It
is on
this ground alone and on the authority of
Saraiva
Construction (PTY.) Ltd v Zulu Electrical and Engineering Wholesalers
(PT.) Ltd
1975 (1) SA 612
(D)
,
that the condonation application stand
to be dismissed.
It is apparent
that
what the applicant sought to achieve with the amendment is to raise
further grounds of review in a reply. In this respect it
is apparent
from the reading of the papers that the applicant realized its
failure to set out the grounds of review when this issue
was raised
by the third respondent in his opposing affidavit. This is not
permissible because of the common law rule that prohibits
the racing
of further grounds of the review in reply.
[20]
In addition to considering the reason given by the applicant
for the late filing of its supplementary affidavit, I have also taken
into account the offer by the applicant to pay the costs of the third
respondent for the late filing of the supplement the affidavit.
In
the circumstances of this case I do not belief the offer takes the
case of the applicant any further.
[21]
In my view the applicant’s application for condonation
for the late filing of its supplementary affidavit and notice of
motion
stands to be dismissed. I also see no reason why in the
circumstances of this case the applicant should not be required to
pay
the cost of this application.
[22]
It would appear that the applicant has abandoned the issue of
the incomplete record as was raised in its letter of the 14June,
2007.
THE
REVIEW APPLICATION
[23]
I now t
urn to deal with the merits
the of review application and having dismissed the condonation
application, the case of the applicant
is now limited to the
complaints as setout in the
founding affidavit and
the notice of motion. The contention of the applicant is that the
commissioner failed to consider the applicant’s
evidence and
thereby committing a reviewable irregularity. The applicant further
contended that the commissioner:
“
25.1
...
mistakenly
held it was common cause that the meeting between myself and Ndebele
and Malamula was not held;
25.2
...
mistakenly held that it was common cause that Malamula gave evidence
at the first arbitration hearing that corroborated Ndebele’s
evidence.
[24]
The applicant states in the founding
affidavit that the above facts were not common cause and that it was
entirely incorrect that
Mr Malamula refused to complete the forms in
question. To this end the applicant also argued that the third
respondent did not
challenge the evidence that Mr Malamula had
completed the forms the following shift.
[25]
The commissioner in his award found that an
instruction was given to the employee to fill in the forms and that
he did not comply
with such an instruction but instead requested a
meeting to have the forms explained. The commissioner further found
that even
if it was to be found that the third respondent had
committed gross insubordination, he had requested a meeting to
explain the
forms. In other words the commissioner found that the
need for the meeting to have been a reasonable explanation for
failing to
comply with the instruction and therefore served as a
factor that weighed against the imposition of dismissal as an
appropriate
sanction. The second finding that influenced the
conclusion reached by the commissioner was that there was
inconsistent application
of the rule by the applicant in that Mr
Malamula who received the instruction at the same time as the
employee and also refused
to fill in the forms was not dismissed.
[26]
The question that arises from the above is
whether the conclusion reached by the commissioner falls outside the
range of reasonableness
so as to attract interference with the award
by the court. The test to determine whether or not a conclusion
reached by a commissioner
is reasonable or otherwise is that of a
reasonable decision-maker. The question to ask in considering the
reasonableness or otherwise
of an award is to determine whether the
conclusion of the commissioner is one which a reasonable
decision-maker could not reach.
See Sidumo v Rustenburg Platinum
Mines Limited (2007) 28 ILJ.
[27]
In addition to the general test applied in
review cases the Constitutional Court in Sidumo also dealt with the
approach which the
CCMA commissioners should follow when determining
the appropriateness of the sanction imposed by the employer. The
approach developed
by Constitutional Court, confirmed two of the
decisions of the Labour Appeal Court in the cases of Engen Petroleum
Ltd v CCMA &
others (2007) 28 ILJ 1507 (LAC) and Chemical
Workers Industrial Union & others v Algorax (Pty) Ltd (2003) 24
ILJ 1917
(LAC). In those cases the Labour Appeal Court held
that the reasonable employer test must not be applied and there
should
be no deference to the employer’s choice of a sanction
when a CCMA commissioner decides whether dismissal as a sanction is
fair in a particular case. The commissioner is in terms of these
decisions required to decide the issue of the appropriateness
of the
sanction in accordance with his or her own sense of fairness. (see
Engen at par 117 at 1559 A, - par 119 at 1559 H-I; par
126 at 1562
C-D, par 147 and Sidumo at paras 75 and 76.). The determination of
the fairness or appropriateness of a dismissal is
an issue to be left
to the commissioner and not the employer or the reviewing court. In
this regard it was said in Sidumo (at par.
75) that:
“
Ultimately,
the commissioner’s sense of fairness is what must prevail and
not the employer’s view.”
[28]
In Sidumo the Court developed guidelines
which commissioners could use in determining the fairness of the
dismissal. The factors
which a commissioner must take into account
when weighing whether a dismissal is an appropriate sanction or
otherwise, are stated
in Sidumo (at par. 78) as follows:
“
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached.; the basis of the employee’s
challenge to
the dismissal; whether additional training and instruction may
result in the employee not repeating the misconduct,
the effect
of dismissal on the employee and his or her long-service record.
The commissioner must
of course consider the reason the employer imposed the sanction of
dismissal, as he or she must take into
account the basis of the
employee’s challenge to the dismissal. There are
other factors that will require consideration.
For example, the harm
caused by the employee’s conduct, whether additional training
and instruction may result in the employee
not repeating the
misconduct, the effect of dismissal on the employee and his or her
long-service record.”
[29]
The above, not being an exhaustive
list, the commissioner would also, in terms of the decision in
Engine, be required to consider
the provisions of sections 188(1) and
192(2) of the Act, including Schedule 8 of the Code of Good
Practice: Dismissal. Section
188(1) requires that the commissioner
must take into account any relevant code of good practice issued in
terms of the Act. And
section 192 which provides that , the employer
must prove that the dismissal is fair.
[30]
Turning to the facts in the present
instance, it is common cause that the rule which the third respondent
refused to obey had just
been introduced and was applicable to the
night shift employee only. It is also common cause that the refusal
to comply with the
instruction was for that shift only as the
following shift both Mr Malemula and the employee worked day
shift. In other words
the refusal to comply was not persistent. It is
apparent that the commissioner in determining the fairness of the
sanction was
influenced by the fact that the employees had requested
a meeting where the schedule as set out in the forms would be
explained
by management. Mr Sighn acceded to this request but before
the meeting could be convened Mr Pretorius attended at the night duty
shift and demanded that the employees should comply with the
schedule. It was in this context that the commissioner found that
there was some form of insubordination but one which was not so gross
as to justify a sanction of dismissal.
[31]
The other factor which the commissioner
took into account in his evaluation of the appropriateness of the
sanction was the 28 (twenty
eight) years of service which the third
respondent had with the applicant. This long period of service was
accompanied by a clean
disciplinary record. There is no suggestion
from the facts and the circumstances of this case and in particular
taking into account
the length of the service and the clean record
that the employee is likely to commit the same offence in the future
and therefore
should not be given a second chance but be given the
most severe punishment of dismissal. I strongly belief the dismissal
was for
this reason alone unfair and accordingly the decision of the
commissioner which is so well reasoned cannot be faulted.
[32]
The second basis upon which the
commissioner found the dismissal to have been unfair relates to the
inconsistent application of
the disciplinary code. It cannot be
disputed that Mr Malamula was charged with the same offence as that
of the third respondent,
namely insubordination in that he on exactly
the same day and time as with the employee, refused to fill in the
forms. The following
day both of them did not work the nightshift but
were booked for a day shift. Thus at the point that both of them were
charged
the circumstances surrounding the facts relating to the
refusal to comply with the instruction were exactly the same.
[33]
The approach to be adopted when dealing
with the issue of parity has as stated in the, soon to be published
judgment of
The South African
Transport and Allied Workers v Ikwezi Bus Services ( unpublished case
number D235/03)
, received attention
from the court and evolved over many years dating back to the days of
the Industrial Court. In that judgment
van Niekerk AJ traverses
several key decisions relating to development of the legal principles
relating to the issue of parity.
In essence the issue of parity
relates to the fairness and equal application of discipline by the
employer. In this respect an
employer has the right to impose
different sanctions on employees who may have been involved in the
same act of misconduct, subject
to the sanction being fair and
objective.
[34]
In circumstances similar to the present
case the Labour Appeal Court, in
NUM and
another v Amcoal Colliery t/a Arnot Colliery and another
[2000] 8
BLLR 869(LAC)
, had to determine the
fairness of the dismissal of employees who had been dismissed for
failing to comply with an instruction.
The distinction between that
case and the present one is that in that case the employees were all
found guilty but only those who
had previous warnings were dismissed.
In dealing with the issue of parity Mogoeng AJA (at page
875 middle para 19),
in Amcoal Colliery, said:
“
The
party principle was designed to prevent unjustified selective
punishment or dismissal and to ensure that like cases are treated
alike. It was not intended to force an employer to mete out the same
punishment to employees with different personal circumstances
just
because they are guilty of the same offence.”
[35]
The Labour Appeal Court, in confirming its
decision in
Irvin & Johnson
(1999) 20 ILJ 2303(LAC) held in
Gcwensha
v CCMA & Oth
ers
(2006) 3 BLLR 234
(LAC), that
:
“
Disciplinary
consistency is the hallmark of progressive labour relations that
every employee must be measured by the same standards.”
The Court went further so
say:
“…
when
comparing employees care should be taken to ensure that the gravity
of the misconduct is evaluated …
”
[36]
In the present instance, Mr Malamula
who was charged with the same offence as the employee was not found
guilty but the employee
was, and dismissed. The fact that Mr
Malamula completed the forms the following day may have been a factor
to take into account
in the consideration of the sanction to be
imposed once found guilty and not a determining factor in relation to
whether or not
he was guilty. The circumstances surrounding the facts
of the refusal to sign the forms were exactly the same and therefore
there
could have been no basis in fairness and objectivity for the
differentiated treatment. It has to be emphasised that this is not
a
case where Mr Malamula was found guilty and in the evaluation of the
appropriateness of the sanction it was found that the sanction
of
dismissal was inappropriate. It is for this reason that, I am of the
view that the conclusion of the commissioner cannot be
said to be one
which a reasonable-reasonable decision maker could not reach. It is a
conclusion that accords with the approach
that has been followed by
several authorities on how to deal with the issue of parity. In this
regard see the authorities already
referred to above including
National Union of Mineworkers v Free
Sate Consolidated Gold Mines (Operations) Ltd (1995) 16 ILJ 1371
(a),SACTU and others v Novel
Spinners (Pty) Ltd
[1999] 11 BLLR 1157
(LC), Coca Cola Bottling East London v Commissioner for Conciliation,
Mediation and Arbitration and others (2003) 24 ILJ 8232(LC).
[37]
The complaint about the impropriety of the
commissioner was not pursued by the applicant in its heads of
argument. The complaint
relates to the allegation that the
commissioner did not call to order the third respondents attorney
whenever she interrupted the
applicant’s counsel and that the
commissioner seem to be acquainted to the attorney. This complaint
has no merit. There is
nothing in the record to support this
allegation. There is no explanation in the applicant’s papers
why its counsel did not
place on record these concerns in particular
the allegation that he was intimidated by the third respondent’s
attorney.
[38]
Turning to the issue of relief, the
commissioner ordered the maximum compensation of 12 (twelve) months
including reinstatement
without loss of benefits. In this regard the
applicant’s attorney correctly conceded that the award stands
to be reviewed
and corrected for this reason.
[39]
In the circumstances I make the following
order:
1. The application for
condonation for the late filing of the applicant’s
supplementary affidavit and the amendment of the
notice of motion is
dismissed with costs.
2. The commissioner’s
award issued under case number GA80470 and dated 15 February 2007 is
reviewed and corrected as follows:
“
a.
The applicant, Mr Ndebele is reinstated retrospectively into the
position he occupied before his dismissal without loss of benefits
and compensation.”
3.
There is no order as to costs in relation to the review application.
_________
______
Molahlehi J
Date
of Hearing
: 07 April 2008
Date
of Judgment :
20 August 2008
Appearances
For
the Applicant
: Adv Hutchinsen
Instructed
by:Fluxmans Inc.
For
the Respondent R Edmons
Instructed
by: Ruth Edmon Attorneys