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[2010] ZALCCT 15
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National Union Of Mineworkers and Another v Commission For Conciliation, Mediation And Arbitration and Others (C587/08) [2010] ZALCCT 15 (12 March 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO: C587/08
In
the matter between:
NATIONAL
UNION OF
MINEWORKERS
First
Applicant
STEMBISO
PHILMON
SIBIYA
Second
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
SARENG
NEVILLE MOCWALEDI
N.O.
Second
Respondent
SEDIBENG
DIAMOND MINE JV t/a SEDIBENG DIAMONDS
Third
Respondent
JUDGMENT
TIP AJ:
[1]
This review application has come before me
on an unopposed basis. It concerns the dismissal of the second
applicant, which
dismissal was upheld pursuant to an arbitration
conducted before the second respondent. The second applicant
was dismissed
after having been found guilty of a charge of assault.
In these proceedings Mr Cloete, who appeared for the applicants, did
not contest that aspect of the finding. He raised two issues,
being questions relating to inconsistent disciplinary treatment
and a
question as to whether the third respondent had demonstrated that the
employment relationship had irretrievably broken down.
[2]
The factual circumstances may be fairly
briefly described. As at 11 February 2008 the second
applicant was employed
as a team leader performing underground work
at the Sedibeng Diamond Mine. The principal evidence about the
incident was
given by the complainant, who worked as an onsetter
transporting miners from the surface to underground and back again.
On
the instruction of the banksman he proceeded to level 15 to
collect employees and took them to the surface. After that he
went down again to level 14 to collect other employees. The
second applicant embarked at that level and confronted the
complainant
about why he had started with employees at level 15 and
not 14. The complainant explained to him that this was the
decision
of the banksman. The second applicant then started to
swear at him, poked a finger in his face, pulled the complainant by
the cord of his lamp and hit him on the nose with a clenched fist.
The complainant’s nose started bleeding. A
fellow
employee intervened and the incident was reported to security
personnel as soon as the surface was reached. The complainant
says that he did not provoke the second applicant in any way nor give
him any reason to assault him.
[3]
The second applicant denied that there had
been any assault. His version was that there had been a short
conversation about
why the transport had begun at level 15 and not
level 14 and that was the end of it. As is apparent from this,
the second
applicant has shown no remorse and has maintained a plea
of innocence both in the internal disciplinary proceedings and at the
arbitration. Corroborative evidence was called on behalf of the
employer and, overall, the guilt of the second applicant was
clearly
established.
[4]
It is of course so that any assault in the
workplace is a serious matter. The gravity of it in this
instance was materially
compounded by the fact that the assault took
place underground and in a transport cage, that being an environment
with a considerable
degree of inherent danger. Moreover, the
assault was on the man who was in charge of the transport. All
things being
equal, the second applicant would ordinarily find it
very difficult to resist the conclusion that he had made his
continued employment
intolerable and that he had been rightfully
dismissed.
[5]
The issue in this review is whether or not
the arbitrator, the second respondent, was correct in dismissing the
grounds of inconsistency
which had been placed before him on behalf
of the second applicant. Although Mr Cloete has raised the
further question whether
the employer showed that a continued
employment relationship had become intolerable, that is really bound
up with the primary issue
of the inconsistency. For the purpose
of this judgment, it is sufficient for me to give consideration to
that aspect only.
[6]
Before I turn to a consideration of the
particular facts here in question, some general observations may be
made. Consistency
in the application of disciplinary standards
and consequences forms an important part of dealing with workplace
transgressions.
At its core is the requirement that the
treatment of employees should be fair. Plainly, inconsistent
outcomes in relation
to evidently comparable factual circumstances
will lead to the serious erosion of respect for the applicable
disciplinary regime.
At the same time, it must be borne in mind
that the objective of consistency is but one of several factors in
the field of disciplinary
measures and, equally, that it is primarily
essential that fairness should be seen to result in any particular
case on the basis
of the facts in that case.
[7]
To put the matter slightly differently,
recourse to comparative elements as between one case and another
should not readily be handled
in such manner as to produce an absurd
or manifestly unfair result in a particular case. In short,
consistency is not a rigid
rule but a guiding concept calculated to
ensure that discipline is not capricious or uneven. The manner
in which an employer
applies it must be in keeping with existing
standards and expectations. See, variously:
Early
Bird Farms (Pty) Ltd v Mlambo
[1997] 5
BLLR 541
(LAC) at 545;
SACCAWU and
others v Irvin & Johnson Ltd
[1999]
8 BLLR 741
(LAC) at paras [29] and [30];
Cape
Town
City
Council v Masitho and others
(2000)
21 ILJ 1957 (LAC) at 1961B-C. Where these considerations must
be applied to a situation where outcomes in different
events fall to
be examined for consistency, it may be useful to compare different
facets of them. Ultimately, though, a value
judgment must be
exercised and not a ‘checklist’ or ‘scorecard’
approach.
[8]
In the present matter, two other
disciplinary events were raised. The first one concerned Ms
Catherine Dube, who testified
at the arbitration. She was
employed at the mine as a waste sorter, which essentially involved
sorting rock and other material
which was passing on a conveyor
belt. Whenever the belt stops, the sorters are to step back
from it. On 4 October 2007,
according to Ms Dube, she had
done this when another employee, Ms Sithole, came up to her and
pulled her by her neck.
Ms Dube was dragged and choked by
Ms Sithole. A security officer intervened. Ms Dube
felt strongly that she had
been assaulted and raised that matter with
various mine officials. However no charge was laid against Ms
Sithole. Her
dissatisfaction continued and on 24 October 2007
the two employees were called before the plant manager. They
were informed
that the matter had been fully investigated and that
the company had concluded that no real assault had taken place.
Rather,
it was said, this had been childish, irresponsible and
potentially dangerous behaviour from both parties. It was
further
said that Ms Dube had provoked Ms Sithole by deliberately
occupying the latter’s usual sorting position. On this
basis,
both employees were given “
a
final counselling and stern warning”
.
The employer’s note goes on to record that in the event of a
further incident of this nature, the fact that this counselling
had
been given would serve as an aggravating circumstance. Ms Dube
was not at all happy with this outcome and referred a
dispute to the
CCMA. This resulted in an agreement on 13 December 2007 to the
effect that Ms Dube would raise the issue of
the final counselling
together with a letter that she had given to the manager, and that
this would be dealt with at the workplace
on or before 18 January
2008.
[9]
Pursuant to this, a letter setting out Ms
Dube’s complaint was lodged with the third respondent on 18
January 2008.
This produced the following response from the
mine manager:
“
With
reference to your letter dated 18 January 2008 regarding the
above-mentioned matter I wish to inform you that we are not prepared
to discuss the issue. The case was at the CCMA on 13 December
2007 and you, in terms of the agreement at the CCMA, had sufficient
time to raise your concerns with regard to your final counselling
before 18 January 2008 (as was also agreed at the CCMA
that
the case be dealt with on or before 18 January 2008). It cannot
be accepted that you only wrote a letter on 18 January
2008 and then
expected the case must be discussed. If it was such a crucial
issue you would have raised your concerns much
earlier.”
[10]
On the face of the evidence presented by Ms
Dube, there were at least some parallels with the case concerning the
second applicant
in this matter. The conduct of Ms Sithole was
unprovoked on any reasonable assessment. It involved dragging
and choking.
It occurred in the vicinity to some moving
machinery and was therefore in a dangerous location. The
question then arises
what the implication is of the fact that the
employer chose not to take Ms Dube’s complaints seriously
enough to institute
a formal assault charge.
[11]
In his evaluation of this matter, the
arbitrator set out the evidence of Ms Dube, noted that the shop
steward, Mr Bashi, was not
an eyewitness, and then proceeded to state
that:
“
Against
this, we have the evidence of Mr Van der Heever that the decision to
give final counselling to both Ms Dube and Ms Sithole
was based on an
investigation and the account of eyewitnesses to the incident in the
form of the security officers who were present
during the said
incident.”
[12]
Those officers did not give evidence at the
arbitration. That fact forms one of the grounds for criticism
of the arbitrator’s
approach to this matter, but the weight to
be accorded to this in the context of a review requires further
evaluation. It
is of course so that the evidence given by Mr
Van der Heever in this regard embodies a hearsay reflection of what
those security
officers apparently reported to the company
investigators in respect of the incident. According to the
account given by Mr
Van der Heever, such information was to the
effect that there had not been an assault of any consequence –
and, implicitly,
that the version of the incident given by Ms Dube
had been overstated. That view led to the decision that the
company would
not institute formal disciplinary proceedings against
Ms Sithole, but resorted to what it called a “
final
counselling”
.
[13]
The arbitrator dealt with the resultant
situation on the basis that it could not be said that the employer
had simply folded its
arms in relation to Ms Dube’s
complaint. To the contrary, he considered, there had been an
investigation and,
on the strength of the information which was thus
gathered, a particular course of action had been decided upon.
[14]
Prima facie
this
approach on the part of the mine management left a good deal to be
desired. What it in effect did was to reach a conclusion,
through its own evaluation, in respect of a question of credibility
that should have been determined through a hearing. If
that
revealed that Ms Dube had falsely exaggerated the event,
consequential action could then have been taken against her.
Conversely, if her account proved to be correct then action against
Ms Sithole would have had to follow. However, this perspective
on what the employer did and did not do does not
per
se
constitute a disciplinary result
that is directly comparable to the outcome in the case of the second
applicant in this matter.
[15]
An allied question that flows from this is
the extent to which an arbitration of the sort here in the picture is
obliged to delve
into the detail of matters that are raised as
founding an allegation of inconsistency. In my view, it is not
contemplated
within the jurisprudence relating to inconsistency that
an arbitration concerning one particular dismissal should find itself
seized
with a full rehearing in respect of various other incidents.
That is also not what is contemplated in the objective of expeditious
dispute resolution as formulated and given expression in the LRA.
Rather, the basis of an inconsistency contention should
comprise
relatively patent demonstrations that a particular employee is the
victim of a whimsical and haphazard disciplinary system.
[16]
In the course of the evidence before the
arbitrator, Ms Dube produced a copy of a medical certificate
purporting to show that she
had been booked off as from 5 October
2007 until 9 October 2007. Precisely what the reason for this
was is not clear from
the certificate itself. Ms Dube also said
that she had prepared a grievance form in respect of the fact that
her complaint
against Ms Sithole had not taken the form of formal
disciplinary proceedings. She went on to say that when she
tendered this
form, it was refused by the official to whom she sought
to deliver it. Both of those submissions contain inherent
evidential
shortcomings and, in any event, had not in any way been
put to the company witnesses at the arbitration. The arbitrator
had
regard to these circumstances – correctly so in my view.
[17]
I turn now to the second of the incidents
upon which the contention of inconsistency was based. This
related to an incident
between two employees called Sebeela and
Malebane. Plainly, there had been some quarrel between them
with physical exchanges.
However, the precise details thereof
are unclear since no formal disciplinary proceedings were
instituted. The two employees
in question fully settled their
differences on their own and neither wished any disciplinary action
to be pursued. Both employees
had been suspended for five days
pending the investigation. The suspension did not amount
per
se
to a direct disciplinary sanction.
When the investigation led to the realisation that it would not be
feasible to conduct
a formal hearing, the matter came to an end.
[18]
Once again some criticism of the company
may be appropriate, in the sense that generally speaking disciplinary
action should not
be averted merely because of an agreement between
the employees concerned. That said, however, it must also be
taken into
account that the material placed before the arbitrator was
hardly such that he could with conviction have concluded that the
company
was indeed in a position to present a prosecution case and
that it had failed to do so in a manner amounting to comparable and
inconsistent treatment.
[19]
Ultimately the question whether an
arbitrator has rendered an award which should be reviewed and set
aside by this Court is one
that requires some circumspection.
Whilst there may be points of criticism and even disagreement with
the analysis and conclusions
reached by the arbitrator, that does not
mean that the award cannot stand. There must be an irregularity
in his conduct of
the hearing or in his treatment of the evidence
such as to bring the award’s reasoning and conclusion within
the zone of
reviewability. In the present case I am not
persuaded that the second respondent’s award falls into that
latter category.
In my judgment, he was alive to the issues
with which he had been confronted. He analysed them with care.
Having done
so, he found that the two incidents which had been put
forward as constituting the basis for an inconsistency finding were
not
sufficient for the dismissal of the second applicant to be set
aside. I find myself unable to disagree with that result.
[20]
Although I have found that there are not
sufficient grounds for the upholding of the review, it is appropriate
that I should record
my appreciation for the able manner in which Mr
Cloete dealt with this case. The papers were carefully prepared
and well
presented. Mr Cloete’s argument was direct and
pertinent. Moreover, he assisted with the submission of helpful
supplementary heads of argument subsequent to the hearing.
[21]
I make the following order:
[1]
The application is dismissed.
[2]
There is no order as to costs.
__________________________________
KS TIP
ACTING JUDGE OF THE
LABOUR COURT
DATE
OF HEARING:
29 January 2010
DATE
OF JUDGMENT:
12 March 2010
FOR
APPLICANTS:
Mr N Cloete
of
Neville Cloete Attorneys Inc
FOR
RESPONDENTS:
No appearance