About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2008
>>
[2008] ZALCJHB 64
|
|
National Union of Metal Workers of South Africa (NUMSA) v Sikwebu and Others (JR83/07) [2008] ZALCJHB 64 (16 October 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NUMBER: JR 83/07
In
the matter between:
NATIONAL
UNION OF METALWORKERS OF
SOUTH
AFRICA (NUMSA)
APPLICANT
and
DINGA
SIKWEBU
1
ST
RESPONDENT
THABANG
SERERO N.O.
2
ND
RESPONDENT
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
(CCMA)
3
RD
RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application to review and set
aside the arbitration award issued by the second respondent (the
commissioner) under case
number GAJB31794/05, dated 11 December 2006.
The initial application to have the review application dismissed was
dismissed by
this Court on the 26 March 2008.
Background
[2]
The first respondent, Mr Dinga Sikwebu (the
employee), is the former employee of the applicant who prior to his
dismissal was employed
as head of education unit in the applicant’s
head office. The employee was accountable to the secretariat
consisting of the
general secretary and the deputy general secretary.
The secretariat constitutes both the administrative and the executive
arm of
the applicant.
[3]
Prior to his dismissal on the 26 October
2005, the employee was charged with four counts of misconduct
relating to gross negligence
and gross insubordination. The gross
negligence charge arose out of the allegation of the employee’s
disruptive and disorderly
conduct in that he was accused of
disseminating false information about the deputy general secretary.
It was alleged in this regard
that the employee had stated that the
deputy general secretary had to be phoned and reminded of the meeting
which was to be held
on the 20
th
and 21
st
October 2004. The alternative to this charge was that the employee
acted outside his employment contract in that he misrepresented
or
gave false information relating to union activity which was regarded
as being detrimental to the operations of the union. As
concerning
the charge of gross insubordination three counts of misconduct were
preferred against the employee. The first count
concerned the
allegation that on or about the 19
th
of November 2004 the employee circulated to the secretariat a letter
together with annexures to all regions despite the fact that
this was
a matter which fell within the sole prerogative of the secretariat.
The second count was that the employee absented himself
from work
without obtaining the approval from the general secretary on the 22
nd
to the 23
rd
November 2004. The third count relates to the accusation that the
employee failed to report for work on the 29
th
November 2004, and leave was not approved for that day.
[4]
The employee was found guilty of all the
charges and was accordingly dismissed. He filed an appeal which was
chaired by an external
practising attorney. The appeal chairperson
found that there was inconsistency in the application of the policy
relating to leave
but confirmed the outcome of the disciplinary
hearing in as far as charges one and two was concerned and
accordingly confirmed
the dismissal. The matter was then referred to
the third respondent (the CCMA), for conciliation and upon failure
thereof to arbitration.
Grounds
for review and arbitration award
[5]
The first attack on the award relates to
the manner in which, the commissioner summarised the evidence. The
complaint is that the
summary of the evidence by the commissioner is
too sketchy and the material evidence was omitted.
[6]
The applicant also contended that the
material evidence that was led was not even considered by the
commissioner. Had the commissioner,
according to the applicant
considered this evidence he would have reached a conclusion that the
dismissal was substantively fair.
[7]
The alleged failure by the commissioner to
deal with the material evidence which was not undisputed and appeared
to be common cause,
constituted gross irregularity according to the
applicant.
[8]
The applicant further contended that the
breakdown in the trust relationship between the deponent of the
founding affidavit, the
deputy secretary general and the secretary
general on the one hand and the employee on the other hand was not
disputed. To this
extent the Courts and CCMA ought not, according to
the applicant to impose an employment relationship between the
parties when
trust had broken down. Another ground upon which the
applicant challenged the award is that the commissioner failed to
determine
whether the conduct of the employee which is common cause
constituted misconduct or not.
[9]
Another irregularity which the commissioner
is alleged to have committed is that he failed to determine whether
it was proper for
an employee to make disparaging allegations against
his superior when there are channels to deal with his complaints.
[10]
The manner in which the commissioner
approached the evidence of Silowe, the employee’s witness was
criticized in that he failed
take into account that was against the
applicant in that it pointed out that even if an employee had applied
for leave you do not
leave until you are sure that the leave has
indeed been authorised.
[11]
In summarising the evidence of both the
applicant’s and the employee’s witnesses the commissioner
in his analyses of
such evidence found:
(i)
that there was no evidence of persistent
and wilful attempt to undermine the respondent’s authority upon
which the finding
of gross insubordination could have been based. The
fact that the general secretary engineered his dismissal was not a
ground upon
which it could be said that the trust relationship
between the applicant and the respondent had broken down.
(ii)
that there was poor management of the leave
application process and that it was unacceptable in this regard for
an organisation
to manage leave process in the manner described by
the secretary general.
(iii)
that even if he was to accept that the
employee did not follow the correct procedure the respondent waived
its right to act against
the employee. Putting this point differently
the commissioner said “…
the
respondent ought to have acted within a reasonable period in order
for justice to prevail”
.
(iv)
the evidence of the employee that he had
complied with the general secretary’s demands and the general
secretary could not
explain why he had submitted a secretariat report
that alleges the contrary.
(v)
the applicant could not be faulted for
responding to the request from other key structures of the respondent
to provide an explanation
of what happened between him and the
secretary general.
(vi)
the employee’s conduct could not be
said to be malicious or disrespectful of the authority of the
secretariat.
[12]
It was on the basis of the above that the
commissioner ordered the reinstatement of the employee with
compensation calculated on
the basis of 8 months salary which equal
R7440.00.
The
test for review
[13]
At the time of filing the review
application the test upon which the founding papers are based on was
the justifiability test as
was enunciated in
Carephone
(Pty) Ltd v Marcus NO and Others
1999 (3) SA 304
(LAC)
.
[14]
The justifiability test was done away with
and the reasonable decision maker test developed by the
Constitutional Court in the
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC)
introduced. The enquiry in the
reasonable decision maker test is to determine whether the decision
reached by the commissioner is
one which a reasonable decision maker
could not reach. In assessing the reasonableness of the award the
Court takes into account
the material evidence which was before the
commissioner.
[15]
In the present case the applicant contended
that the commissioner failed to deal with the material evidence which
was undisputed
and appeared to be common cause. If this was to be the
case then indeed the decision of the commissioner could have been
unreasonable
and would have failed the standard required by
Sidumo
.
[16]
I am unable to agree with the contention of
the applicant that the commissioner failed to deal with the material
evidence which
was before him. As indicated earlier after briefly
setting out the background facts the commissioner evaluated the
evidence of
all the witnesses and came to the conclusion that the
dismissal was unfair. It is apparent from the brief reasoning which
the commissioner
provided in his award that he took into account the
circumstances of this case in arriving at the conclusion as he did.
[17]
I am therefore of the view that the award
of the commissioner cannot be faulted for being unreasonable. Put
differently the commissioner’s
decision is one which a
reasonable decision maker could have reached.
[18]
The other ground upon which the applicant
based its challenge of the award is that the commissioner committed a
gross irregularity
in the manner in which he summarised the evidence
in the award.
[19]
In terms of Section 138 of the Labour
Relations Act 66 of 1995 (the Act) the commissioner is firstly given
the power to conduct
the arbitration proceedings in the manner in
which he or she considers appropriate in order to determine the
substance of the dispute
fairly and quickly but must deal with the
substantial merits of the dispute with the minimum legal formalities.
[20]
The relevant part of Section 138 (7) of the
Act requires the commissioner to issue the award with brief reasons.
I am accordingly
not in agreement with the applicant that the
commissioner in the present instance has failed to comply with his
duties as provided
for in the Act and thereby committing a gross
irregularity. It has to be remembered that with the speed with which
the legislature
anticipated the resolution of disputes under the Act
and the work pressure of cases estimated at 80 000 referrals, the
majority
of the parties not legally represented, it could not have
been “
expected that awards will
not be impeccable”
. See paragraph
118 of Sidumo.
[21]
It follows therefore that the commissioner
in providing the brief reasons in the award as he did cannot be said
to have committed
a gross irregularity as defined in
Ellis
v Morgan
1909 TS 556
and subsequently
qualified in
Goldfields Investments
Limited and Another v City Council of Johannesburg and Another
1938
TPD 551
. Both these cases were cited
with approval in Sidumo. In
Ellis v
Morgan
the Court in dealing with the
general principles of irregularity said:
“
'But
an irregularity in proceedings does not mean an incorrect judgment;
it refers not to the result, but to the methods of a trial,
such as,
for example, some high-handed or mistaken action which has prevented
the aggrieved party from having his case fully and
fairly
determined.”
[22]
In qualifying the principle set out in
Ellis v Morgan
-Schreiner
J in
Goldfields
said:
'The law, as stated in
Ellis v. Morgan (a) has been accepted in subsequent cases, and the
passage which has been quoted from that
case shows that it is not
merely high-handed or arbitrary conduct which is described as gross
irregularity; behaviour which is
perfectly well-intentioned and bona
fide, though mistaken, may come under that description. The crucial
question is C
whether it prevented a fair trial of the
issues. If it did prevent a fair trial of the issues then it will
amount to a gross irregularity.
[23]
After endorsing the decision in
Goldfields
and Ellis v Morgan
, Navsa AJ, when
dealing with the distinction which was drawn in
Goldfields
between “
patent irregularities”
and “
latent irregularities”
,
in the middle of paragraph 265 said:
“
Determining
whether the commissioner has committed a gross irregularity will
inevitably require the reviewing court to examine the
reasons given
for the award. In doing so the reviewing court must be
mindful of the fact that it is examining the reasons
not to determine
whether the conclusion reached by the commissioner is correct but
whether the commissioner has committed a gross
irregularity in the
conduct of the proceedings.”
[24]
The learned judge went further to say:
“
[267]
It is plain from these constitutional and statutory provisions
that CCMA arbitration proceedings should be conducted
in a fair
manner. The parties to CCMA arbitration must be afforded a fair
trial. Parties to the CCMA arbitrations have a right
to have their
cases fully and fairly determined. Fairness in the conduct of the
proceedings requires a commissioner to apply his
or her mind to the
issues that are material to the determination of the dispute. One of
the duties of a commissioner in conducting
arbitration is to
determine the material facts and then to apply the provisions of the
LRA to those facts in answering
the question whether the
dismissal was for a fair reason. In my judgment where a commissioner
fails to apply his or her mind to
a matter which is material to the
determination of the fairness of the sanction, it can hardly be said
that there was a fair trial
of issues.
[268]
It follows therefore that where a commissioner fails to have regard
to material facts, the arbitration
proceedings cannot in principle be
said to be fair because the commissioner fails to perform his or her
mandate. In so doing, in
the words of Ellis, the commissioner's
action prevents the aggrieved party from having its case fully and
fairly determined. This
constitutes a gross irregularity in the
conduct of the arbitration proceedings as contemplated in s 145(2)
(a) (ii) of the LRA.
And the ensuing award falls to be set aside not
because the result is wrong but because the commissioner has
committed a gross
irregularity in the conduct of the arbitration
proceedings.”
[25]
In the light of the above, I am of the view
that the applicant had failed to show that the decision of the
commissioner was unreasonable
and that this Court was further
justified in interfering with the award.
[26]
I see no reason why in law and fairness the
costs should not follow the results.
[27]
The review application is in the
circumstances dismissed with costs.
_______________
Molahlehi
J
Date
of Hearing :
8
th
August 2008
Date
of Judgment :
16
th
October 2008
Appearances
For
the Applicant :
Roland Sutherland SC
Instructed
by :
Ranamane Phugo Inc
For
the Respondent: Timothy
Bruinders SC
Instructed
by :
David Cartwright
Attorneys