About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2009
>>
[2009] ZALCJHB 59
|
|
National Union of Mine Workers and Another v Commission for Conciliation Mediation And Arbitration and Others (JR173/08) [2009] ZALCJHB 59 (19 August 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
CASE
NO: JR173/08
In
the matter between:
NATIONAL
UNION OF MINE
WORKERS
First Applicant
RONNY
MASHABA Second
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION First
Respondent
SIMON
MOHUBEDU RANTHO
N.O. Second
Respondent
MODIKWA PLATINUM
MINE Third
Respondent
JUDGMENT
FRANCIS
J
Introduction
1.
This is an application to review and set aside an arbitration award
dated 8 October 2007 made under case number LP3778/07 by
the second
respondent (the commissioner) after he had found that the second
applicant’s dismissal by the third respondent
was substantively
fair and dismissed his claim.
Background facts
2.
The second applicant is a member of the National Union of Mine
Workers (NUM), the first applicant. He was employed by Modikwa
Platinum Mine, the third respondent on 4 July 2005 as an employee
benefits assistant or pay roll officer. On 9 May 2007 he
was
charged with two acts of misconduct. The first charge was “the
use of racial language in that on the 18 April 2007,
he used the
words: ‘I hate white people’ to a fellow employee.
The second charge was that he was negligent in
that on 1 March 2007
he processed a shift adjustment for an employee while it was stated
that he was not at work. He appeared
at a disciplinary hearing
and was found guilty of the first charge and was dismissed on 23 May
2007. His appeal was
dismissed. He assisted by NUM
referred an unfair dismissal dispute to the first respondent, the
Commission for Conciliation,
Mediation and Arbitration (the CCMA) for
conciliation and arbitration contending that his dismissal was
substantively unfair.
He in particular challenged the
appropriateness of his dismissal as a sanction.
The arbitration
proceedings
3.
The third respondent called two witnesses on its behalf. The
first witness was Elizabeth van der Schyff (van der Schyff).
She is employed as an employee benefits assistant since 23 June
2003. On 18 April 2007 she was going through the absence
without permission (AWOP) report and noticed that one of their senior
employee was booked of as AWOP. The report showed that
the
second applicant had booked him off. She telephoned the second
applicant and asked him why he had booked off one of her
people as
AWOP. He asked her who the person was and she told him that it
was a Mr Oosthuizen (Oosthuizen). He replied
to her as follows:
“You know what, I hate white people. That is why I
did it.” She replied to him
as follows: “Excuse me,
so you are racist now” and ended the conversation. She
and the second applicant worked
in the same department but in
separate sections. He was working at central and she at the
plant. Oosthuizen was working
in the plant. She did not
know what had triggered the second applicant and did not give him a
reason to say that to her.
She had expected him to respond when
she told him that he was racist. She was offended because she
is white. The third
respondent’s position towards racism
is known to all the employees. The second applicant never
apologised to her.
She felt that she could no longer work with
him because the trust relationship was broken. They did not
share racist jokes
before and no grievance was lodged against her for
making racist remarks previously.
4.
The third respondent’s second witness was Adriaan Jacobus
Vermaak (Vermaak). He testified that he presided over the
disciplinary enquiry of the second applicant. He pleaded not
guilty to the charge of making racist remarks. He acknowledged
that he made those racist utterances, i.e. “I hate white
people”. The dismissal was the appropriate sanction.
There is a disciplinary code in the mine. Previously the third
respondent encountered a problem with racism until it came
up with a
policy against it.
5.
The second applicant testified. He admitted that a conversation
with van der Schyff took place on 18 April 2007.
The
conversation was about Oosthuizen whom he booked AWOP. She
asked why he did that. He then made a joke by saying
“He
hateswhite people”. After that he rectified the mistake
about the AWOP. The following day van der Schyff
asked him to
help her with the pay slip and he assisted her. He was amazed
to learn from the security that she had lodged
a complaint against
him. He usually joked with her and he never felt offended as a
result. The error would have happened
no matter whether one is
white or black. They had a good relationship. She once
said to him that she knew that black
people were not capable and he
did not lodge a complaint against her.
The arbitration
award
6.
The commissioner issued an award. He has set out the evidence
that was led. He than said that it was common cause
that the
second applicant uttered the words: “I hate white people”
to a white person. The second applicant’s
contention was
that he was joking when he uttered the words. On the other
hand, van der Schyff testified that after the second
applicant had
uttered the words he did not apologise to her. Under cross
examination the second applicant testified that
if a person was not
accepting his joke he would apologise. He blamed van der Schyff
for not telling him that she was offended
by the utterances.
The second applicant testified that he was amazed to learn from the
security that she had lodged a complaint
against him. In spite
of the knowledge that van der Schyff had lodged a complaint against
him with regard to the utterances
that he made, he did not ask for
forgiveness. The commissioner said that by then she was clearly
offended by the words uttered
which words he contended were uttered
jokingly. In spite of that, he never bothered apologising not
even during the disciplinary
enquiry. The commissioner said
that if this were not a sheer display of arrogance by the second
applicant it is a display
of sheer remorselessness. In the face
of these accusations, whether real or unreal, the second applicant
was under a duty
to respond immediately and he never acted
positively.
7.
The commissioner said that the second applicant testified that he
used to make jokes with the said witness. At one stage
the
witness made racist remarks and he never reported it.
Therefore, he could not argue that the third respondent was not
consistent in dealing with cases of racism because he never reported
it. The incident was never brought to the attention
of the
third respondent. The third respondent was not aware of the
incident and it could not have been expected to deal with
it.
The commissioner said that the other contention was that the third
respondent in imposing the sanction of dismissal,
did not consider
mitigating factors, for instance, the fact that he is the
breadwinner. The second applicant raised this
issue during
cross examination. In this regard van der Schyff testified that
the third respondent’s position towards
racism was known by all
employees. Vermaak testified that previously, the third
respondent encountered a problem with racism
until it came up with a
policy against it. Vermaak’s evidence corroborated the
evidence of van der Schyff on the existence
of a policy on racism.
8.
The commissioner said that for the mere fact that both the forms and
contents of the documents in the bundle were not disputed
he would
refer to them. According to the records of the third respondent
employees were warned against engaging in racist
acts. The
employees were also told that they would be dismissed if found guilty
of any racist related incidents. Moreover,
according to the
disciplinary code the sanction for racially abusive language is
dismissal for a first offender.
9.
The commissioner said that against this background, he found that the
utterances that the second applicant made were careless
and
afterwards he showed no remorse by failing to apologise to van der
Schyff and to the third respondent because in essence, this
was an
offence against the third respondent. In
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and others
(2002) 23 ILJ 863 (LAC), the Labour Appeal Court upheld the dismissal
of a supervisor for having made racist remarks. It
could be
seen that racism is viewed in a serious light. The commissioner
found that dismissal was an appropriate sanction
in the
circumstances. The commissioner found that the dismissal of the
second applicant by the third respondent was substantively
fair and
dismissed his application with no order as to costs.
The grounds of
review
10.
The applicants contended that the commissioner committed misconducts
and gross irregularities, and exceeded his powers in the
following
respects:
10.1
He made mistakes as to, and misunderstood, the applicable legal
principles, and failed to apply the
applicable law.
10.2
He made mistakes so gross that they could not have been made without
some degree of misconduct.
10.3
He failed to grant the second applicant an opportunity of presenting
his case, which opportunity he
extended to the third respondent.
10.4
The commissioner denied the second applicant an opportunity to
cross-examine the third respondent’s
witnesses on material
points.
10.5
The commissioner misinterpreted the issues before him.
10.6
The commissioner failed to observe the principles of natural justice.
10.7
The commissioner failed to motivate the conclusions he reached.
10.8
The conduct of the commissioner as reflected above resulted in the
second applicant not having his
case fully and fairly determined.
10.9
The commissioner acted contrary to public policy.
10.10 His
findings are not justifiable in the light of the evidence before him,
and are irrational.
10.11 The
conclusion that commissioner reached is one which no reasonable
commissioner would have reached.
10.12 He
ignored relevant, and took into account irrelevant, evidence.
10.13 He
misunderstood the evidence before.
10.14 The
commissioner exceeded his powers.
10.15 The
third respondent obtained the award in an improper manner.
10.16 The
commissioner ignored the fact that the language which second
applicant used did not in any way undermine the
third respondent’s
authority.
10.17 He also
ignored the fact that the statement was merely jocular, as second
applicant testified.
10.18 He
ignored the fact that, as is reflected in van der Schyff’s
statement, the second applicant did not say
he hated, but that van
der Schyff knew that he hated whites.
10.19 He
ignored the fact that, in the context in which the words were used,
they could not have a serious impact on
van der Schyff.
10.20 He
ignored the fact that second applicant did not say that he hated van
der Schyff or whites, but that van deer
Schyff knew that he hated
whites. Therefore, this was not a language used against van der
Schyff, but to explain, the second
applicant’s conduct to van
der Schyff.
10.21 He
ignored the fact that the statement, being a joke to a colleague,
would negatively impair labour relations.
10.22 He
ignored the fact that the second applicant did not have a record of
using abusive or racial language.
10.23 He
ignored the fact that the words used were not racist.
10.24 He
ignored the fact that the words were uttered once.
10.25 He
ignored the second applicant’s frame of mind, which was that he
was joking to a colleague.
10.26 The
commissioner failed to appreciate the nature of the objection he
raised against the third respondent’s
officials, and regarded
it as a threat to him.
10.27 The
commissioner misunderstood the evidence, when he held that it was
common cause that the second applicant uttered
the words “I
hate white people”. The words uttered by the second
applicant were “You know I hate white
people”.
10.28 He
ignored the fact that van der Schyff never said that, as at the time
the words were uttered, she did not know
of the second applicant’s
attitude towards whites, as the uttered words suggested.
10.29 He
ignored the fact that the words were not uttered against, but as an
explanation of the failure to pay the employee
to, van der Schyff.
10.30 He
failed to appreciate the nature of the second applicant’s
defence that the words were uttered as a joke.
This is
reflected in the commissioner considering the irrelevant fact that,
after the second applicant said to van der Schyff that
the latter
knew of his attitude to whites, the second applicant did not
apologise to her.
10.31 His
finding that van der Schyff was offended is not supported by the
evidence led before him, and reflects his
failure to apply his mind.
10.32 The
commissioner misunderstood second applicant’s evidence to the
effect that he used to make jokes with
van der Schyff similar to the
one he made on the day in question in this matter. This is
reflected in his finding that second
applicant “cannot argue
that the third respondent was not consistent in dealing with cases of
racism because he never reported
it”. This demonstrates
that the commissioner misunderstood second applicant’s defence,
and therefore did not
decide his case.
10.33 The
commissioner failed to investigate, and ignored the actual content
of, the workplace rule against racism,
and decided the case on
speculation as to its content.
10.34 He
ignored the fact that the words uttered were not racially abusive
language which he says should be sanctioned
with dismissal, according
to his understanding of the disciplinary code.
10.35 He did
not find that the words used by second applicant were racially
abusive, but that they were careless, and
the second applicant did
not apologise to van der Schyff or show remorse, yet he applied the
sanction applicable to employees guilty
of using racially abusive
language. This demonstrates his failure to apply his mind to
and misunderstanding of, the issues
before him.
10.36 He
misunderstood and failed to apply his mind to the
Crown Chickens
case referred to in his award.
10.37 He
ignored the fact that the facts of his case were distinguishable from
those in the
Crown Chickens
case.
10.38 He
failed to determine the content of the third respondent’s
policy against racism, and simply assumed that
he had contravened its
provisions.
10.39 The
commissioner, without confirming evidence, assumed that his statement
constituted a racist act in terms of
the third respondent’s
policy on racism.
10.40 He
assumed, without supporting evidence, that in terms of the third
respondent’s disciplinary code, his
statement constituted
racially abusive language.
10.41 He
assumed, without supporting evidence, that the third respondent’s
disciplinary code was peremptory as
regards dismissal as a sanction
for using a racial language.
10.42 He
failed to apply his mind to, and to determine, the issue of whether
dismissal was one of the fair sanction,
and what the appropriate
sentence should be.
10.43 He
failed to take into account and apply the code of Good Conduct of
Dismissal.
10.44. His finding
that his conduct was an offence against the third respondent’s
constitute misconduct, gross irregularity,
excess of powers, failure
to apply his mind, misunderstanding of the issues before him and
demonstrates that it could only have
been arrived at as a result of
misconduct, amongst others.
10.45 He
ignored the fact that his statement was not directed against van der
Schyff, or the third respondent, but was
just a reference to what,
according to the joke, van der Schyff knew.
10.46
He ignored the fact that van der Schyff did not, in response to his
statement, say that she did not know that
“I hate white
people”. This clearly would have been a logical response,
if she was to be believed.
Analysis of the
evidence and arguments raised
11.
Commissioners are appointed to deal with dismissal disputes.
They are in terms of section 138(7)(a) of the Labour Relations
Act 66
of 1995 (the Act) required to issue awards with brief reasons.
This is exactly what the commissioner did. Guidelines
are given to
commissioners about what factors they should take into account in
deciding what an appropriate sanction is.
Ultimately the key
question to be asked is whether the decision made by the commissioner
is one that a reasonable decision maker
would have made. It is
not the role of this court to second guess the decision made by the
commissioner. It is trite
that commissioners must decide
whether dismissal as a sanction is fair in a particular case in
accordance with his or her own sense
of fairness. Ultimately
the commissioner’s sense of fairness is what must prevail and
not the employer’s view.
A commissioner is obliged to
independently consider the appropriateness of the sanction without
showing deference to the sanction
imposed by the employer.
12.
It is common cause that the second applicant uttered the words “I
hate white people” and was dismissed for this.
It is
further common cause that the second applicant did not inform the
third respondent’s van der Schyff that this was said
in jest.
Mr Makinta, who appeared for the second applicant conceded that van
der Schyff’s evidence on this aspect was
not fully contested.
His version that it was said in jest was not put to her when she
testified. It is further common
cause that the second applicant
did not complain to the third respondent about what van der Schyff
had allegedly said to him some
time ago.
13.
The applicants have raised 46 grounds of review which are set out in
paragraph 10 above. In
Comtech (Pty) Ltd v Mohony N.O. and
Others
DA12/05, the LAC and in dealing with the factual grounds
required by Rule 7A(2)(c) of the Labour Court Rules held at paragraph
15
as follows:
“
[15]
The difficulty with the appellant’s case in this regard relates
to whether the founding affidavit contains the
factual grounds
required by Rule 7A(2)(c) of the Rules of the Labour Court.
Rule 7A(2)(c) of the Rules of the Labour Court
requires a party who
applies for a review, such as the appellant in this matter, to
deliver a notice of motion that must be supported
by “an
affidavit setting out the factual and legal grounds upon which the
applicant relies to have the decision or proceedings
corrected or set
aside”. Rule 7A requires the notice of motion to call
upon, in this case, the commissioner “to
show cause why the
decision or proceedings should not be reviewed and correct or set
aside”.
[16]
In my view, the contents of paragraph 15 of the founding affidavit
relate to conclusions of law.
There is nothing either in
paragraph 15 or anywhere else in the founding affidavit which sets
out the factual grounds upon which
the appellant sought to base its
legal grounds of review. In paragraph 15 of the founding
affidavit the deponent said that
the commissioner erred in his award
in that he “failed and/or neglected and/or refused to apply his
mind to the evidence
led at the arbitration proceedings” but
did not motivate this bald allegation by reference either to the
evidence or the
award.
[17]
The deponent to the founding affidavit also said in paragraph 15
thereof that the commissioner “furthermore
did not apply his
mind to the relevant case law, applicable to the facts of the matter
which was presented to him, and therefore
exceeded his powers as
commissioner in not applying the relevant statutory authorities to
the applicable facts of the case.”
He did not say what
case law he was referring to the commissioner failed to apply nor did
he specify the so-called “relevant
statutory authorities”
applicable to the case that he complained that the commissioner
failed to apply. There is absolutely
no factual basis advanced
for these complaints.”
14.
What the LAC said in
Comtech
supra
applies equally to this matter. I need to say from the onset
that the grounds of review raised by the applicants are
baseless and
are not supported by the evidence led before the commissioner. Some
grounds were manufactured without having regard
to the evidence
placed before the commissioner. A few examples would do.
A ground is that the commissioner failed to
grant the second
applicant an opportunity to present his case, which opportunity he
extended to the third respondent. The
fact is that the second
applicant was represented by a union official who was afforded all
the rights afforded to representatives
at such hearings. The
commissioner cannot be faulted if the second applicant’s
version was not put to witnesses or
if their testimonies were not
contested during cross examination. The second applicant was
afforded an opportunity to cross-examine
witnesses and this is born
out by the transcript of the arbitration proceedings. It is
unclear why it was contended that
the commissioner failed to observe
the principles of natural justice or that he acted contrary to public
policy. It was contended
that the commissioner ignored relevant
evidence, misunderstood the evidence before him, ignored the fact
that the statement was
made in a jocular manner etc. The
commissioner’s award points to the contrary. The fact is
that the second applicant
did not tell van der Schyff that what he
said was said in jest. There are many other examples that show
that all of the issues
raised by the applicants were considered by
the commissioner.
15.
The second applicant did not refer to what case law he was referring
to when he said that the commissioner failed to apply nor
did he
motivate the bald allegations by reference to the evidence led at the
arbitration hearing. As stated above the second
applicant was
obliged in law to set out the factual basis for the bald allegation
that the commissioner failed to grant the second
applicant an
opportunity of presenting his case and/or denied him an opportunity
to cross-examine the third respondent’s
witnesses on material
issues.
16.
The uncontroverted evidence is that the third respondent has a zero %
tolerance against racism. There used to be racial
incidences at
the premises and the third respondent’s policy about this was
communicated to all its employees. The
fact is that van der
Schyff felt offended by the remarks made by the second applicant.
She was not informed that she had
previously also uttered such
racists statements in jest. Since the words: “I hate
white people” are obviously
a racist remark and constitute hate
speech, the commissioner in finding the employee guilty of the
charge, did not arrive at a
decision which no reasonable
decision-maker could or should have reached and therefore did not
commit a reviewable irregularity.
17.
The commissioner has given reasons why he believed that dismissal was
an appropriate sanction in the circumstances. He
referred to
documents in the bundle that were not disputed. According to
the records of the third respondent, employees were
warned against
engaging in racist acts. The employees were also told that they
would be dismissed if found guilty of any
racist related incidents.
Moreover, according to the disciplinary code the sanction for
racially abusive language is dismissal
on the first offence.
The commissioner said that against this background, he found that the
utterances that the applicant
made were careless and afterwards he
showed no remorse by failing to apologise to van der Schyff and to
the third respondent because,
in essence, this was an offence against
the third respondent. The commissioner referred to
Crown
Chickens
and said that the LAC upheld
the dismissal of a supervisor for having made racist remarks.
Racism was viewed in a serious
light. The commissioner in
arriving at the decision that dismissal was an appropriate sanction
in the circumstances, made
a decision which a reasonable decision
maker would have reached in the circumstances.
18.
The application stands to be dismissed.
19.
I do not believe that this is a matter where costs should follow the
result.
20.
In the circumstances I make the following order:
20.1
The application is dismissed.
20.2
There is no order as to costs.
_________________________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANTS
:
ATTORNEY M E S MAKINTA
FOR THIRD
RESPONDENT
:
M J VAN
AS INSTRUCTED BY CLIFFE DEKKER HOFMEYER INC
DATE OF
JUDGMENT
: 19
AUGUST 2009