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[2009] ZALCJHB 64
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UTI Material Handling v National Bargaining Council for the Road Freight Industries and Others (JR261/07) [2009] ZALCJHB 64 (15 August 2009)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE
NO: JR261/07
In
the matter between:
UTI
MATERIAL HANDLING
Applicant
and
NATIONAL BARGAINING
COUNCIL
FOR THE ROAD FREIGHT
INDUSTRIES First
Respondent
COMMISSIONER KENNITH
MOSIME NO
Second
Respondent
SOUTH AFRICAN
COMMERCIAL
CATERING AND ALLIED
WORKERS UNION Third
Respondent
E
TSHABALALA
& 28 OTHERS
4
th
-32
nd
Respondents
JUDGMENT
AC
BASSON, J
[1]
This was a review of an arbitration award
dated 15 December 2006 in terms of which the Second Respondent
(hereinafter referred to
as “the Arbitrator”) found the
dismissal of the individual Respondents unfair. The Arbitrator
directed the Applicant
to reinstate all the individual Respondents
who were dismissed on account of their repeated failure to attend
morning meetings
which were considered to be critical from an
operational point of view.
[2]
The Applicant in this matter is UTI
Material Handling. The 4
th
– 32
nd
Respondents (hereinafter referred to as “the individual
Respondents”) were all employed by the Applicant and members
of
the Third Respondent. The present dispute has its origins in the
refusal of the individual Respondents to attend the regular
morning
meetings that were held daily at the Applicant’s operations.
The individual Respondents were dismissed following
a guilty finding
on the following charge: “
Disobeying
reasonable and lawful job instructions by refusing to attend the
morning meeting as instructed on several occasions
.”
Brief summary of
the evidence
[3]
It was the case for the Applicant that the
Respondents were given a reasonable instruction to attend morning
meetings and that there
existed no justification for the refusal to
attend those meetings. Progressive discipline was only taken after
the 3
rd
refusal to attend. It was the Applicant’s case that the
individual Respondents had persisted with their refusal to attend
the
morning meetings in the face of repeated communication to them
instructing them to attend the meetings. The Applicant thus
argued
that it had a valid and fair reason to dismiss.
[4]
It was the Respondents’ case that
there was no instruction to attend morning meetings and argued that
there was in fact no
standing practice to attend such morning
meetings. Despite the fact that it was claimed that there was no
instruction nor practice
to attend such meetings, it was also alleged
by the individual Respondents that their failure to attend the
meetings resulted from
provocative conduct by management.
[5]
Mr. Acton (the service delivery manager –
hereinafter referred to as “Acton”) was the only witness
on behalf of
the Applicant. He gave extensive evidence about the
practice of attending morning meetings and the manner in which
employees at
the Applicant’s operation worked. He testified
that all employees had been made aware of the fact that meetings were
held
at the start of each working day in order to discuss certain
important operational issues. He testified that he was employed at
the Centurion plant since March 2005 when he took over the
management. He explained that it took about 3-6 months to settle down
the facility. Without repeating in detail his evidence, Acton
explained that, although meetings were held prior to him taking over,
those meetings were held on an erratic basis. He explained that it
was thereafter a matter of standard practice that morning meetings
were held and testified that attendance of these meetings were a
prerequisite. Acton also testified that he considered the morning
meetings as important to the general operation of the Applicant. His
evidence in this regard was not challenged.
[6]
Action testified that management initially
gave verbal instructions to team members of these meetings. After the
initial verbal
instructions, the holding of meetings was consistent.
He also confirmed that he had attended most of the meetings.
[7]
During May 2005 a schedule of the meeting
times was in fact published on the notice board. This notice was part
of the bundle of
documents before the arbitration and specifically
recorded that meetings will be held every day at 08H00 – 08H10.
Acton’s
evidence in this regard was not seriously disputed in
cross-examination although it was suggested that the notice did not
convey
an instruction to attend a meeting. According to Acton
this was a standard arrangement and it was therefore not necessary
to
instruct workers on a daily basis to attend.
[8]
This pattern of regular attendance
continued until 15 September 2005 which was five months after the
practice had been implemented.
As a result of the problems which
started then, Acton began to record events on a daily basis. He
referred to this document as
“
an
event tracking document
.” In
cross-exanimation it was boldly put to Acton that he had drafted this
document simply for use during the arbitration.
Acton strongly denied
this.
[9]
Acton
explained
in fair detail how and when the individual Respondents had started
their refusal to attend the morning meetings. He also
explained that
only union members failed to attend the meetings. As a result Acton
then approached the two shop stewards (Roberts
and Tsotetsi). During
that meeting the shopsteward gave reasons for the failure to attend
the meetings which reasons included the
fact that there was no
incentive scheme in place. It was also conveyed to management that
they were not happy about the fact that
the morning meetings lacked
an agenda. No mention was made that the workers were not aware of the
meeting and that that was the
reason for the non-attendance. It is
important to point out that it was not disputed in cross-examination
that the shop stewards
had met with Acton regarding the union members
failure to attend the morning meetings. It was also not disputed in
cross-examination
that certain reasons were advanced for the failure
to attend the morning meetings. Acton then informed the shop stewards
that the
Applicant would not tolerate a continued failure to attend
the meetings. This event was recorded by Acton in his diary. This
issue
was also not specifically disputed in cross-examination.
[10]
A meeting was held on 16 September after
the tea-break. The morning meeting was postponed as a result of work
pressure. At the meeting
of 16 September it was explained that the
meetings were not a negotiated issue but fell within management
prerogative based on
the company’s operational needs. Acton
also testified that the meeting was an attempt to consult with the
broader group in
order to find out why the meeting of the previous
day was boycotted. At the meeting the incentive scheme was again
raised. The
meeting ended with the union members walking out. In
passing, it should be pointed out that this evidence is consistent
with the
evidence that the shopstewards had raised the incentive
scheme with management early when the reasons for non-attendance were
given
to Acton. Again, this evidence was not specifically challenged
during the course of Acton’s evidence.
[11]
On Monday 19 September a meeting was held
in the canteen at a time when the majority of the individual
Respondents were enjoying
their morning coffee. As a result, is was
difficult for management to determine if the Respondents were
continuing with boycotting
meetings.
[12]
On 20 September a further meeting took
place. Again the individual Respondents failed to attend and the
meeting was conducted in
their absence. As a direct consequence to
this failure, Acton then prepared a notice dated 20 September 2005.
In this letter it
is pointed out to all employees that the meetings
were compulsory. The letter also referred to the earlier meeting with
shop stewards.
It was also stated in this letter that disciplinary
action will be taken against offenders.
[13]
On that same day management also published
a lengthy document in which it addressed various concerns that had
been raised in the
various meetings. These notices were also
forwarded to the Respondent’s trade union on 20 September 2005.
The Applicant also
submitted proof that the notice was faxed to the
union. This was not disputed. The notice was also posted on the
Applicant’s
general notice board.
[14]
On 21 September the individual Respondents
again failed to attend the meetings. A final written warning was
issued to all the individual
Respondents. On this particular day two
shop stewards (Roberts and Tsotetsi) entered the office and expressed
their dissatisfaction
with the attempts to issue the warnings. They
also stated that no employee will come to the office to sign for the
warnings. Acton
also testified that the shopstewards informed
management that the actions of boycotting the meetings persistently
did not constitute
a strike and that they did not see it as an
illegal boycott. This evidence of Acton was also not properly
challenged during cross-examination.
[15]
A final written warning was then drafted as
a general notice and duly published on the Applicant’s notice
board. The notice
also recorded that the shopstewards had a meeting
and that during that meeting it was indicated that they would not
attend. The
employees were informed that should they not attend the
next meeting, they would be dismissed. This evidence was not
disputed.
More in particular, it was not disputed that the final
written warning was duly published on the notice board. In
cross-examination
Tsotetsi conceded that he received the final
written warning although he denied that it was given to all
employees. It was, however,
common cause that the two shopstewards
were the representatives of all the employees.
[16]
On 22 September 2005 the individual
Respondents again refused to attend the meetings. As a result
disciplinary charges were drawn
up. Two disciplinary enquiries were
held.
[17]
It is, in my view, clear from the evidence
that morning meetings were a general practice. Apart from the fact
that Tsotesi eventually
conceded in cross-examination that such
meetings were held, it is also clear from other evidence: It was not
disputed that on either
13 or 15 September Acton had enquired as to
why the individual Respondents did not attend the morning meetings.
It is also
important to point out that Tsotetsi himself testified
that the failure to attend the meetings resulted in Acton becoming
angry
although Acton disputed that he used vulgar language. Tsotetsi
himself also claimed to be the person who initiated the morning
meetings to discuss problems. A further fact that points to the
practice of general meetings is the evidence of the individual
employees themselves to the effect that they would not attend the
meetings until such a time Acton apologises for his language.
I am
thus in agreement with the Applicant that it is somewhat startling
for the Arbitrator to have concluded that there was no
such a
practice in light of the overwhelming evidence that there was such a
practice. Moreover, Tsotetsi also acknowledged the
need for such
meetings. If the minutes of the disciplinary hearing is perused it is
further clear that some of the witnesses called
on behalf of the
individual Respondents in fact confirmed that Acton had pointed out
certain notices on the notice board, that
regular meetings were held
and that the Respondents were told on 16 September to attend these
meetings. They also admitted that
they were informed that a failure
to attend the meetings would result in disciplinary action being
taken against them. Tsotetsi
was also unable to explain why Acton
would communicate false information to the union on 20 September.
During the disciplinary
hearing Tsotetsi also confirmed that Acton
had conveyed to him that morning meetings were to take place every
morning. During cross-examination
during the arbitration, Tsotetsi
also confirmed that Acton wanted meetings to take place every
morning. He said the following:
“
Yes
he wanted them [the meetings] to take place every morning
.”
Acton also referred to a notice contained on page 11 of the
bundle which is a notice which was placed on the notice
board
informing employees of the meetings. These meetings were held,
according to Acton, since May 2005. Acton explained that these
meetings were mandatory and it was not necessary to inform the
employees time and again of the meetings. It was not disputed in
Acton’s evidence that union and non-union members attended the
meetings since May 2005.
[18]
In essence, the Arbitrator had to decide
the following:
(i)
Firstly, were the Respondents required to
attend regular morning meetings and was it an existing policy of
which the individual
Respondents were aware?
(ii)
Secondly, did the individual Respondents
repeatedly refuse to comply with this requirement and did they
repeatedly make themselves
guilty of insubordination by not
attending?
(iii)
If they were insubordinate, was dismissal
an appropriate disciplinary sanction?
[19]
In deciding these questions the Arbitrator
had to take into account that there is an onus on the Applicant to
prove on a balance
of probabilities that the dismissal was for a fair
reason and that a fair procedure was followed. In this particular
case the Applicant
had to establish that the dismissal arose out of
the Respondents’ refusal to obey a lawful and reasonable
instruction of
which the individual Respondents were aware.
Insubordination may attract a sanction of dismissal but it must be
clear from the
facts that the insubordination was wilful and
repetitive.
The arbitration
award
[20]
The Arbitrator concluded that there had
been no misconduct and that the Applicant did not discharge its
burden of proving that the
Respondents had wilfully and deliberately
disobeyed a reasonable and lawful instruction. The Arbitrator further
concluded that
there was no clear and consistently applied rule that
the Respondents have contravened. According to the Arbitrator the
Applicant
also could not establish that there was an instruction
given or that the Respondents had deliberately and wilfully disobeyed
that
instruction.
[21]
The Arbitrator held that it was alarming
that the Applicant had introduced a rule regarding attendance of
morning meetings verbally
rather than in writing. The Arbitrator also
found it strange that Acton did not sign the written notice which was
on the notice
board and which set out the agenda of the morning
meetings. According to the Arbitrator this notice itself was merely a
timetable
and not an instruction and could have been placed on the
notice board by “anyone”.
[22]
The Arbitrator also found the evidence of
Acton unconvincing despite finding that Acton’s evidence was
not discredited by
way of cross-examination. Although Acton gave
clear evidence that he did attend a meeting with the shopstewards to
discuss their
dissatisfaction, the Arbitrator found that no such a
meeting was held. The Arbitrator also found that disciplinary action
was taken
too soon and that Acton had used vulgar language in a
meeting thus acting provocatively.
Review
[23]
Before referring to the evidence in more
detail, it is necessary to briefly set out what the test for review
is. The Constitutional
Court in
Sidumo &
Another v Rustenburg Platinum Mines Ltd & Others
(2007) 28
ILJ
2405 (CC) stated the following in respect of Labour Court reviews:
“
That
standard is the one explained in Bato Star: Is the decision reached
by the commissioner one that a reasonable decision-maker
could not
reach?”
[1]
[24]
The Commissioner is therefore required to
apply his or her mind to the evidence and to arrive at a conclusion
that is reasonable.
In determining whether the decision is
reasonable, the Court will inevitably be required, as was
acknowledged in the
Sidumo
-case,
to have regard to the merits of the case in order to determine
whether the decision is reasonable. A factor that this Court
will
consider is whether or not the Commissioner had applied his or her
mind to the relevant facts and whether the decision arrived
at is
reasonable and rational in light of the evidence that was properly
placed before the Commissioner. The question is not whether
this
Court itself would have arrived at a different conclusion; the
question is whether or not he decision is reasonable. The Court
will,
however, interfere with the award if the Commissioner had reached a
conclusion which is unrelated to, or which is in direct
conflict with
unchallenged evidence placed before her during the arbitration. See
in this regard the decision in
Moodley v
Illovo Gledhow & Others
[2004] 2
BLLR 150
(LC) at paragraph 22 where the Court held as follows:
“
It
should be extremely reluctant to upset the findings of the
arbitrator, unless I am persuaded that her approach to the evidence,
and her assessment thereof, was so glaringly out of kilt with her
functions as an arbitration that her findings can only be considered
to be so grossly irregular as to warrant interference from this
Court.”
[25]
I am in agreement with the submission that
the Arbitrator I the present matter had ignored large portions of the
evidence introduced
by the Applicant through Acton which evidence
went completely unchallenged during the course of cross-examination.
The Arbitrator
also ignored evidence which was clearly supportive of
the Applicant’s version. In determining the probabilities, the
Arbitrator
also failed to accept unchallenged evidence and to assess
that evidence with the view of determining the probabilities. What
the
Arbitrator chose to do was to question the credibility of the
Applicant’s witness but at the same time to accept that his
evidence was not disturbed during cross-examination. A fact finder
cannot ignore unchallenged evidence. This was clearly pointed
out by
the Court in
Small v Smit
1954 (3) SA 434
(SWA) at page 438 where the Court confirmed how
important it is to challenge evidence:
“
It
is, in my opinion, elementary and standard practice for a party to
put to each opposing witness so much of his own case or defence
as
concerns that witness and if need be to inform him, if he has not
been given notice thereof, that other witnesses will contradict
him,
so as to give him fair warning and an opportunity of explaining
the contradiction and defending his own character. It
is grossly
unfair and improper to let a witness's evidence go unchallenged in
cross-examination and afterwards argue that he must
be disbelieved.
Once
a witness's evidence on a point in dispute has been deliberately left
unchallenged in cross-examination and particularly by
a legal
practitioner, the party calling that witness is normally entitled to
assume in the absence of notice to the contrary that
the witness's
testimony is accepted as correct. More particularly is this the case
if the witness is corroborated by several others,
unless the
testimony is so manifestly absurd, fantastic or of so romancing a
character that no reasonable person can attach any
credence to it
whatsoever. (See the following authorities: Browne v Dunn (1893), 6
The Reports 67, H.L.; Phipson on Evidence (7th
ed. p. 460); Rex v M.,
1946 AD 1023
at p. 1028.)”
See
also
President of the Republic of South
Africa & Others v South African Football Union & Others
2000
(1) SA 1
(CC) at paragraph 61 – 63 where the Constitutional
Court also stressed the importance of challenging evidence:
“
[61]
The institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general rule it
is essential,
when it is intended to suggest that a witness is not speaking
the truth on a particular point, to direct
the witness's
attention to the fact by questions put in cross-examination showing
that the imputation is intended to be made and
to afford the witness
an opportunity, while still in the witness-box, of giving any
explanation open to the witness and of defending
his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness is entitled
to
assume that the unchallenged witness's testimony is accepted as
correct. This rule was enunciated by the House of Lords in Browne
v
Dunn and has been adopted and consistently followed by our courts.
[62] The rule in
Browne v Dunn is not merely one of professional practice but 'is
essential to fair play and fair dealing with witnesses'.
It is still
current in England and has been adopted and followed in substantially
the same form in the Commonwealth jurisdictions.
[63] The precise
nature of the imputation should be made clear to the witness so
that it can be met and destroyed, particularly
where the imputation
relies upon inferences to be drawn from other evidence in the
proceedings. It should be made clear not only
that the evidence is to
be challenged but also how it is to be challenged. This is so because
the witness must be given an opportunity
to deny the challenge,
to call corroborative evidence, to qualify the evidence given by the
witness or others and to explain
contradictions on which reliance is
to be placed.
[64]
The rule is of course not an inflexible one. Where it is quite clear
that prior notice has been given to the witness that his
or her
honesty is being impeached or such intention is otherwise manifest,
it is not necessary to cross-examine on the point, or
where 'a story
told by a witness may have been of so incredible and romancing
a nature that the A most effective cross-examination
would be
to ask him to leave the box.”
[26]
Applying the above rules it is clear that
the Arbitrator had failed to consider and accept the unchallenged
evidence to the effect
that morning meetings were critical and was in
fact a standard practice after Acton took over. I have already
referred to the evidence
in paragraph [17]
supra
.
These meetings were consistently attended until mid-September 2005
when the individual Respondents decided to boycott these meetings.
Because the workforce understood the need for these meetings it
became a standard practice and it was therefore not necessary for
the
workforce to have been reminded of that on a daily basis. The
Arbitrator also failed to take into consideration that the
shopstewards
expressly informed management that they would not attend
the hearing because they had a grievance about the incentive scheme.
The
evidence of Acton that several notices were drafted and published
is consistent with the diary which he kept on a daily basis.
Notwithstanding these notices the Respondents continued to ignore the
meetings. I am in agreement with the submission that it is
ridiculous
to argue on the one hand that there was no practice of meetings and
then to argue on the other hand that they would
refuse to attend the
hearings until Acton apologised for his language.
[27]
I am in light of the aforegoing persuaded
that Arbitrator committed a gross irregularity in the course of
conducting the arbitration.
In arriving at this conclusion I was also
mindful of the comments made by Ngcobo J in the
Sidumo-
case:
“
[256]
In its review application the employer relied upon all three grounds
of review in s 145(2)(a), namely, misconduct,
gross irregularity and
acting in excess of powers conferred. This is plain from its
affidavit in support of the review application.
The employer
submitted that the findings complained of had no reasonable basis on
the evidence presented to the commissioner and
they flew in the face
of direct and to a large extent unchallenged evidence to the
contrary. The employer submitted that these
findings which were
fundamental to the commissioner's award demonstrate that the
commissioner failed to apply his mind to the matter
to such an extent
that it cannot be said that the employer was afforded a fair hearing.
It was submitted that in these circumstances
the commissioner
committed a gross irregularity or misconduct or otherwise exceeded
his powers.”
And at
[267] – [268]:
“
[267]
It is plain from these constitutional and statutory provisions that
CCMA arbitration proceedings should be conducted
in a fair manner.
The parties to a 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
an 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
.
[2]
In so doing, in the words of Ellis, the commissioner's action
prevents the aggrieved party from having its case fully and fairly
determined.315 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.”
[28]
I am satisfied that the award cannot stand.
It is clear from the record and the findings that the Arbitrator did
not fully consider
material aspects of the evidence which is
supportive of the Applicant’s fundamental version. As a result
of this failure
the Arbitrator arrived at a decision which is not
reasonable. In the event the Applicant’s review succeeds with
costs.
[29]
This Court is in a position to substitute
the findings of the Arbitrator with its own. I have already pointed
out that I find the
facts in favour of the Applicant. The individual
Respondents were clearly refusing to attend the meetings. Their
refusal was deliberate
and notwithstanding warnings they persisted
with their wilful conduct. I am of the view that their conduct
warrants the ultimate
sanction namely that of a dismissal.
[30]
In the event the following order is made:
1.
The arbitration award of the Second
Respondent dated 12 January 2007 is reviewed and set aside and
replaced with an order that the
dismissal of the Individual
Respondents was fair.
2.
The Third, Fourth to Thirty Second
Respondents are ordered to pay the costs jointly and severally the
one paying the other to be
absolved.
AC BASSON, J
Date
of judgment
:
11
August 2009
Date
of proceedings
:
15
August 2009
For the Applicant:
Adv
Wade. Instructed by Francois Le Roux Attorneys.
For
the Respondents
:
Mr.
Motang. Union official.
[1]
The
standard of review
[107]
The reasonableness standard was dealt with in Bato Star. In the
context of section 6(2)(h) of PAJA, O’Regan J said
the
following: “[A]n administrative decision will be reviewable
if, in Lord Cooke’s words, it is one that a reasonable
decisionmaker could not reach.”
[108] This Court
recognised that scrutiny of a decision based on reasonableness
introduced a substantive ingredient into review
proceedings. In
judging a decision for reasonableness, it is often impossible to
separate the merits from scrutiny. However,
the distinction between
appeals and reviews continues to be significant.
[109] Review for
reasonableness, as explained by Professor Hoexter, does threaten the
distinction between review and appeal. The
Labour Court in reviewing
the awards of commissioners inevitably deals with the merits of the
matter. This does tend to blur
the distinction between appeal and
review. She points out that it does so in the limited sense that it
necessarily entails scrutiny
of the merits of administrative
decisions. She states that the danger lies, not in careful scrutiny,
but in “judicial overzealousness
insetting aside
administrative decisions that do not coincide with the judge’s
own opinions.” This Court in Bato
Star recognised that danger.
A judge’s task is to ensure that the decisions taken by
administrative agencies fall within
the bounds of reasonableness as
required by the Constitution.
[110] To summarise,
Carephone held that section 145 of the LRA was suffused by the then
constitutional standard that the outcome
of an administrative
decision should be justifiable in relation to the reasons given for
it. The better approach is that section
145 is now suffused by the
constitutional standard of reasonableness. That standard is the one
explained in Bato Star: Is the
decision reached by the commissioner
one that a reasonable decision-maker could not reach? Applying it
will give effect not only
to the constitutional right to fair labour
practices, but also to the right to administrative action which is
lawful, reasonable
and procedurally fair.
[2]
My
emphasis.