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[2010] ZALCJHB 12
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Parrot Products (Pty) Ltd v NUMSA obo Nxumalo and Others (JR1464/06) [2010] ZALCJHB 12 (22 January 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NO: JR 1464/06
In
the matter between:
PARROT
PRODUCTS (PTY) LTD
APPLICANT
and
NUMSA
OBO
NXUMALO
1
ST
RESPONDENT
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
2
ND
RESPONDENT
ZWANE
B,
N.O.
3
RD
RESPONDENT
JUDGMENT
Molahlehi J
Introduction
[1]
The first respondent who is the applicant
in this interlocutory application seeks an order to have the
arbitration award issued
by the third respondent (the commissioner)
under case number GAJB6791-05 made an order of the court in terms of
section 158 (1)
(c) of the Labour Relations Act 66 of 1995 (LRA). In
the main application the applicant, seeks an order reviewing and set
aside
the same arbitration award.
[2]
The respondent Parrot Production (Pty) Ltd,
in this matter is the applicant in the main review application. The
applicant, NUMSA
in this application is the respondent in the main
review applicant, acting on behalf of its member, Mr Nxumalo who in
this judgement
is for ease of reference referred to as the
“employee.”
[3]
In the arbitration award issued by the
commissioner during April 2006, the dismissal was found to have been
unfair and the respondent
ordered to reinstate the employee and pay
compensation in the amount of R7 794.
[4]
The respondent was dissatisfied with the
outcome of the arbitration award and accordingly filed a review in
terms of section 145
of the LRA on the 21
st
June 2006. The grounds for review in this matter are dealt with not
for the purpose of evaluating the review application but the
prospect
of its success.
[5]
The employee was prior to his dismissal
employed by the respondent as a store man.
[6]
The respondent proffered charges against
the employee arising from an incident which occurred on 1 February
2005. On that day the
employee had an altercation with one of the
employees of the respondent Ms Marion Schultz. The altercation arose
apparently at
a disciplinary hearing where the employee was
representing another employee, Mr Veli Nhlapo. Because of that
altercation the employee
was issued with a notice of a disciplinary
inquiry which reads as follows:
“
A
formal disciplinary charge has been laid against you
Name:
Thami Nxumalo
The
charge is as follows:
INSUBORDINATION /
FAILURE TO FOLLOW AN INSTRUCTION FROM A MANAGER
On 1
st
February 2005 you and Thembi Nhlapo came into the office of the
Financial Manager Marion Schulz to represent Veli Nhlapo, you were
advised that only one person could represent him and the other would
need to leave. You argued with her and neither one would leave
her
office. In general it is found unacceptable to argue with a manager
and not to follow an instruction given by a manager.”
[7]
The chairperson of the disciplinary hearing
found the employee guilty as charged and reasoned as follows:
“
You
of your own accord instructed a fellow employee to leave her work
place without permission.
You specifically
disobeyed an instruction from a senior member of management to come
to her office alone.
You showed extreme
disrespect to senior member of management by questioning her
authority to tell Thembi to return to work.
You were disruptive in
that you proceeded to question a senior member of
management in a manner that was completely
out of order
You interfered with a
direct management instruction given to Thembi, when Marion told her
to return to work.
You already have a
final written warning for a previous charge of insubordination.
I feel that your
behaviour is obstructive, and your disrespect and negative attitude
towards a senior manager, Marion, is totally
unacceptable and will
not be tolerated. You are therefore dismissed with immediate effect.”
[8]
The employee being unhappy with the outcome
of the disciplinary hearing referred the matter to the CCMA for
conciliation and thereafter
it having failed, referred the matter to
arbitration.
The grounds for review
[9]
The respondent in its application to review
the commissioner’s award contends that the commissioner
committed a gross irregularity
in that he made a material finding
which cannot be substantiated by the evidence presented before him.
It is further contended
that the award is not rational or justifiable
in relation to the reason given for it.
[10]
The commissioner’s award is
criticised more particularly because the commissioner:
“
17.1
. . . formulated the issue in dispute too narrowly as simply whether
or not
Nxumalo was insubordinate in arauiric (fic), with me. In doing
so, he disregarded the evidence presented of Nxumalo's disrespectful
and defiant behaviour towards me as a senior manager. Which evidence
it is submitted constitutes good grounds upon which to make
a finding
that Nxumalo was guilty of serious misconduct and that there was thus
a valid and fair reason for his dismissal. As was
found in essence by
the chairperson of Nxumalo’s disciplinary enquiry.
17.2
. . . misconceived and misapplied the law concerning the rights of,
and the consequent protection afforded to,
an employee acting as a
fellow employee's representative in a disciplinary enquiry. The
applicable labour jurisprudence does not,
as effectively the third
respondent found, give an employee licence to act in a grossly
disrespectful or defiant manner towards
management merely because he
or she is acting, or purports to act, in the capacity of a
representative at a disciplinary enquiry.”
The arbitration award
[11]
In arriving at the conclusion that the
dismissal was unfair the commissioner reasoned that there was no
valid and fair reason for
the dismissal of the employee and that
accordingly the respondent had failed to discharge its onus of
showing that the dismissal
was substantively fair. It was for this
reason that the commissioner ordered the respondent to reinstate the
employee on the same
terms and conditions not less favourable to
those prevailing at the time of his dismissal.
[12]
In analyzing the evidence and the arguments
which were presented during the proceedings the commissioner observed
as follows:
“
The
question is whether or not the applicant [Nxumalo] was insubordinate
in arguing with the chairperson [Schulz] as the representative
at the
disciplinary hearing. Even if the applicant at that stage was not an
elected shop steward which he was. It is my view that
he was arguing
in the capacity of a representative at the disciplinary hearing. It
is trite law that in our labour jurisprudence
that a representative
in any labour forum has the same status as that of the opponents
(managers). In the circumstances, the argument
of the applicant was
appropriate even if he was not correct in what he was saying,
therefore it cannot amount to insubordination.”
The application to
dismiss and make the award an order
[13]
The reasons for seeking the dismissal of
the review application and making the award an order of court are set
out in the employee’s
application as follows:
“
4.1
Since the arbitration award was issued on or around the 24th
April 2006, the first Respondent failed and/ or refused
to comply
with the said award.
4.2
Despite the fact that the 1
st
Respondent has on many
occasion, they still maintain that there has been tape recording and
a Bundle A has not been delivered
.
4.3
The Applicant employee is seriously prejudiced by this delaying
tactics from the employer as he is currently
unemployed and suffering
financial hardships.”
Evaluation
[14]
It seems to me convenient to deal with the
application to make the arbitration award an order of court as the
outcome thereof will
determine whether or not there is a need to
consider the grounds for dismissal of the review application.
[15]
It is trite that a review application does
not automatically stay the enforcement of an arbitration award. In
this respect Grogan
AJ in
Professional
Security Enforcement v Namusi (1999) 20 ILJ 1279 (LC);
[1999] 6 BLLR
610
(LC) at para 10,
had this to say
:
“
Neither
the Act not (sic)] the common law lays down a hard-and-fast rule that
an application to have an award (or any judicial order)
made an order
of court must be dismissed or conditionally postponed if the person
against whom it is to be made has applied for
its rescission or
review. This court has, however, adopted the practice of postponing
applications brought under s 158(1) (c) if
the respondent has filed
an application for review.”
[16]
The legal consequences of making an
arbitration an order of court is that it changes the status of such
an award to a court order
which means any pending review would fall
away unless the court directs otherwise. See
Potch
Speed Den v Rajah
[1999] JOL 4979
(LC).
In other words there can be no review against an award that has been
made an order of court. The remedies available to a party
wishing to
challenge an award that has been made an order of court is either to
apply to have the order rescinded or apply for
leave to appeal and if
successful appeal against such an order. It should be noted that the
court could in addition to making an
award an order also suspend it
pending the outcome of the review application in terms of section
158(1) (g) of the LRA.
[17]
In considering whether or not to make an
arbitration award an order of court, the court exercise a judicial
discretion which it
does by taking into account the balance of
convenience, the requirements of fairness to both parties, the goal
to bring the dispute
to finality, the prospect of success in the
review application, the policy of the LRA and the interest of
administration of justice.
In order to succeed in opposition to an
application to make award an order of court the party opposing the
application has show
prospects of success in the review application.
See
Ntshangane v Speciality Metals CC
[1998] 3 BLLR 302
(LC)
and
NEHAWU
obo Vermeulen v Director General: Department of Labour
[2005] 8 BLLR
840
(C).
[18]
In the present instance the respondent has
not made a proper case on the papers that it has reasonable prospects
of success. In
its answering affidavit it focuses its energy in
explaining the delay in prosecuting the review application. It
contends in this
respect that the delay was occasioned by the CCMA in
making the record of the arbitration proceedings available to the
Registrar.
[19]
In its heads of argument in the review
application the respondent contends that the material issue is
whether the commissioner committed
an error of law in his finding
that the employee’s conduct did not amount to insubordination
because he was acting in his
capacity as a representative of the
other employee who was at that time facing a disciplinary hearing. In
this respect the respondent
relies on the cases of,
Irvin
& Johnson Ltd v CCMA & others
[2006] 7 BLLR 613
(LAC)
and
Maneche & others v CCMA and
others
[2007] JOL 20281
–
[20]
In
Irvin &
Johnson
at para [48] the court in
dealing with the issue a commissioner committing an error in law had
the following to say:
“
[48]
the fact that the commissioner committed an error of law is not on
its
own sufficient to justify that her award be reviewed and set
aside. A commissioner is entitled to be wrong in law in certain
circumstances
without his or her award having to be reviewed and set
aside for that reason. However, in certain circumstances an error of
law
may be such that the award or decision must be reviewed and set
aside. One of those is where the Legislature did not intend that
the
tribunal concerned should have exclusive authority to decide the
question of law concerned and the error is a material one
(Hira &
another v Booysen & another
1992 (4) SA 69
(AD) at 93C–H).”
[21]
In
Maneche,
Van Niekerk AJ as he then was, in dealing with the same issue had the
following to say:
“
[13]
It is now well established in this Court that arbitration proceedings
conducted under the auspices of the CCMA may be reviewed on the
grounds that the commissioner committed a material error of law
(see
Hira & another v Booysen & another 1992 (4) SA 69
(A) at 93, Mlaba v Masonite (Africa) Ltd & others
[1998] 3 BLLR
291
(LC) [also reported at
[1998] JOL 2063
(LC)–Ed] at
301C–302E, National Commissioner of SA Police Service v
Potterill NO & others (2003) 24 ILJ 1984 (LC)
at paragraph [25],
OK Bazaars (a division of Shoprite Checkers) v Commission for
Conciliation, Mediation & Arbitration &
others (2000) 21 ILJ
1188 (LC) at paragraph [10], and Foschini Group (Pty) Ltd v CCMA &
others (2002) 23 ILJ 1048 (LC) [also
reported at
[2002] JOL 9728
(LC)–Ed] at paragraph [25]).
[14]
The reviewability of an arbitration award on the basis of an error of
law on the requirements set out in Hira v
Booysen was recently
approved by the Labour Appeal Court. In Mlaba's case, this Court held
that the review of CCMA awards on the
basis of an error of law is
essentially one of materiality (at 301). The test of materiality may
be described as follows:
‘
If,
in the exercise of this discretion, a Commissioner makes an error of
law, this does not render the decision of the Commissioner
reviewable
unless it is a material error in the sense that it results in the
Commissioner asking the wrong question or basing his
or her decision
on a matter not prescribed by the statute (see Moolman Brothers v
Gaylard NO & others (1998) 19 ILJ 150 (LC)
at 150 at 156).’
[15]
The Labour Appeal Court has emphasized the importance
of the
requirement that a commissioner "ask the right question".
In Stocks Civil Engineering (Pty) Ltd v Rip NO &
another (2002)
23 ILJ 358 (LAC) [also reported at
[2002] JOL 9318
(LAC)–Ed]
Van Dijkhorst AJA said:
‘
If
the decision cannot be arrived at should the correct criterion be
applied, it may justifiably be concluded (in the context of
an error
of law) that the tribunal 'asked itself the wrong question' or
'applied the wrong test' or 'based its decision on some
matter not
prescribed for its decision' or 'failed to apply its mind to the
relevant issues in accordance with the behest of the
statute'. Such
decision is reviewable.’ ”
[22]
It is clear that the above authorities do
not support the proposition of the respondent because it is not every
error in law that
would vitiate the arbitration award of a
commissioner to an extent justifying interference by the Court. It is
only when the commissioner
commits an error of law which is so
material that it denies the other party a fair hearing that the court
would be entitled to
interfere with the award. In other words an
error in law would vitiates the award if it has been shown that the
commissioner has
failed to apply his or her mind to the relevant
issues before him or her.
[23]
The other basis upon which the respondent
relies on in contending that the commissioner committed an error of
law in arriving at
the conclusion that the decision of the
commissioner is reviewable is the dictum in the case of
Mondi
Paper Co Ltd v Paper Printing Wood & Allied Workers Union &
Another (1994) 15 ILJ 778 I(LAC).
[24]
In
Mondi Paper
supra
the
matter initially came before the then Industrial Court in terms of
section 46(9) of the Labour Relations Act 28 of 1956. The
shop
steward who at the time of the disciplinary hearing had been in the
employment of Mondi Paper was dismissed after interrupting
a meeting
which was convened by a manager to discuss a written warnings which
had been given to employees in their absence because
they were
refusing to attend disciplinary hearings where they would have been
charged with participating in a national stay away.
Soon after the
commencement of the meeting the shop steward arrived and contended
that the meeting was irregular and unauthorized.
[25]
The shop steward effectively disrupted the
meeting and took with him the employee who had been summoned to the
meeting, in defiance
of an express request by the manager who had
called the meeting that the employee should remain.
[26]
The Labour Appeal Court agreed with the
Industrial Court that the conduct of the shop steward in interrupting
the meeting was unjustified.
In dealing with the merits of the matter
the Labour Appeal Court held that:
“
No
doubt a shop steward should fearlessly pursue the interests of the
members he represents, and he ought to be protected against
being
victimized for doing so. However this is no licence to resort to
defiance and needless confrontation. I do not agree with
the view of
the court a quo that the fact that he is acting in his capacity as a
shop steward serves to 'mitigate' conduct which
objectively is
unacceptable. Notwithstanding the position to which he has been
elected, a shop steward remains an employee, from
whom his employer
is entitled to expect conduct appropriate to that relationship.
I agree with the
finding of the court a quo that the second respondent's defiance of
management's authority amounted to insubordination.
It is clear too
that his conduct was deliberate, and in my view warranted
disciplinary steps being taken against him.
The appellant’s
counsel conceded, correctly in my view, that the incident did not in
itself warrant the ultimate sanction
of dismissal. He submitted
though that the second respondent's lack of remorse and persistence
in I maintaining that
he had done nothing wrong, weighed
against the second respondent, and that on those grounds the
dismissal was justified. He referred
us in this regard to principles
developed by the criminal courts in relation to the assessment of
sentence.”
[27]
The Court went further to say:
“
An
employer's response to a breach of duty by an employee ought properly
to be dictated by the extent to which the breach has impaired
the
employment relationship, and nothing more. The fact that an employee
remains defiant is relevant only in that context.
In my view the proper
enquiry in each case is whether the employer can fairly be expected
to continue the employment relationship.
The attitude adopted by the
employee is but one of the factors which is relevant to that enquiry.
The second respondent had been
a shop steward for about two years.
The evidence does not suggest that he has a history of carrying out
his duties in a confrontational
and defiant manner. Although he has
received warnings previously, they do not appear to have related to
his conduct as a shop steward.
Furthermore, in the absence of
evidence relating to the circumstances which gave rise to those
warnings, it is not possible to
infer there from that the employment
relationship cannot fairly be expected to continue. I agree in those
circumstances with the
view of the court a quo that the sanction of
dismissal for the infraction in question was excessive. I have
already indicated,
however, that in my view the second respondent's
conduct warranted disciplinary action being taken against him, though
falling
short of dismissal. Section 46 (9)of the Act contemplates
that a court will grant such relief as may be appropriate to finally
determine the dispute before it. An order of reinstatement, without
more, does not achieve that purpose, suggesting as it does that
no
disciplinary action against the second respondent is warranted. In my
view the determination should be amended to make it clear
that
disciplinary action was not warranted.”
[28]
It is common cause in the present matter
that Nxumalo arrived at the disciplinary hearing to represent another
employee with a certain
Thembi. There was an exchange of words as
concerning the role and the need for two representatives at that
hearing. The chairperson
of the hearing insisted that Thembi should
go back to her workstation as the policy allowed for only one
representative at a disciplinary
hearing.
[29]
The commissioner in his award formulated
the issue he had to answer to be:
“
Whether
or not the applicant was insubordinate in arguing with the
chairperson at the disciplinary hearing.”
[30]
The commissioner found that Nxumalo in
arguing with the chairperson of the disciplinary hearing did so in
his capacity as the representative
of the employee who was facing a
disciplinary hearing and that whatever he may have said could not
amount to insubordination. The
commissioner in arriving at the
conclusion that the dismissal was unfair seems to have been
influenced by the circumstances within
which the exchange between the
parties took place. In this respect the commissioner took into
account that the argument between
the parties concerned, whether
there was a policy which governed the number of representatives who
could assist an employee at
the disciplinary hearing. Although the
respondent argued that such a policy was in existence none was
produced.
[31]
What the respondent ought to have done in
order to succeed in its opposition to the applicant’s
application to have the award
made an order of the Court was to make
averments and substantiate it in its opposing papers showing that
there is a chance that
the award could in the review application be
found that the award does not meet the standard of reasonable award
as set out in
the case of
Sidumo and
Another v Rustenburg Platinum Mines and others
[2007] 12 BLLR 1097
(CC).
It seems to me, reading from the
other award and considering the grounds of review, the prospects of
faulting the commissioner
for unreasonable or any of the grounds
listed under Section 145 of the LRA, is remote. The commissioner in
arriving at the conclusion
as he did, considered and applied his mind
to the facts and the circumstances of the case.
[32]
In the light of the above, I am of the view
that the respondent has failed to show a reasonable probability in
succeeding in its
review application and for this reason it would not
be fair to delay the finalisation of this matter any more. In fact as
indicated
earlier the respondent did not in its opposing papers make
out a case showing that it has prospects of succeeding in its review
application and for this reason alone the applicant stand to succeed
in its application to have the award made an order of Court.
[33]
In the premises the following order is
made:
1. The
arbitration award issued by the third respondent under case number
GAJB 6791-05 and dated 24
th
April 2006 is made an order of
the Court.
2.
There is no order as to costs
___________________________
Molahlehi
J
Date
of Hearing :
16
th
September 2009
Date
of Judgment :
22
nd
January 2010
Appearances
For
the Applicant : Adv J
Campanella
Instructed
by :
Matjila Hertzberg
and Dewey Attorneys Cliffe Dekker Hofmeyr Inc
For
the Respondent: Mr J Motau
(union official)
Respondent:
Mr
J Motau (union
official)