About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2011
>>
[2011] ZALCJHB 177
|
|
NUM and Others v CCMA and Others (JR202/07) [2011] ZALCJHB 177 (15 March 2011)
Not reportable
Of interest to other judges
in
the labour court of South Africa
held
at JOHANNESBURG
case
no: jr 202/07
In the matter between:
NUM
First applicant
LUKAS MAKGORO & 12
OTHERS Second and further applicants
and
CCMA
First respondent
R
BRACKS N.O. Second respondent
VEREENIGING
REFRACTORIES (PTY) LTD Third respondent
judgment
STEENKAMP J:
Introduction
The applicants – the National Union of Mineworkers and 13 of
its members – applied to review and set aside the arbitration
award of the second respondent, Commissioner Raynold Bracks of the
CCMA (the first respondent).
The arbitrator found that the dismissal of the employees by the
third respondent, Vereeniging Refractories (Pty) Ltd, was fair
because the employees acted dishonestly by fraudulently claiming
overtime pay for time not worked. The arbitrator found that
by their
actions, the employees violated the trust relationship, which formed
the basis of their employment contracts. Both parties
were legally
represented at the arbitration.
The applicants submit that the arbitrator committed misconduct, a
gross irregularity and exceeded his powers, as envisaged in
section
145 of the LRA. They further submit that the arbitrator reached a
finding that no reasonable decision maker could have
reached, as
contemplated in
Sidumo v Rustenburg Platinum Mines Ltd
.
1
background facts
The employees were charged with and found guilty of two charges: of
leaving the workplace without clocking out; and representing
that
they clocked out at 1630, when they were in fact not on the mine
premises at the time.
In addition, the second applicant, Lucas Makgoro, was found guilty
of failing to ensure that the workers worked the correct overtime
hours. All 13 employees were dismissed in July 2005. The arbitration
award was issued on 14 December 2006.
2
The company manufactures a product known as "desolation bricks"
which are used in boilers and the steel industry. The
other
employees reported directly to Lucas Makgoro. His supervisor, in
turn, was Edwin Julian, the production manager.
3
The employees are hourly paid workers and are paid according to when
they clock in and clock out. If they work overtime, they
are
obviously entitled to overtime payment. The employees were requested
to work overtime on Friday 15 July 2005. Their normal
shift ended at
1430 on a Friday. They were required to work two hours overtime,
i.e. until 1630.
This much is common cause. However, the employees allege that they
did work until 1630. The employer disputes this. The employees'
clock cards show that they clocked out at 1630. The question is
whether they worked until that time or not.
Julian testified that, at about 1430 – shortly after the
employees were instructed to set two extra cars – he went
to
the plant to see if the work was being done. At Tunnel Kiln (TK)
setting where the employees were supposed to be working,
he found
no-one. He also found that the work had already been done. He then
telephoned Lucas Makgoro, the supervisor. Makgoro
was not at the
plant but in town. Makgoro suggested that the employees could be in
the showers at the hostel block, about 200m
to 400 m away. Julian
went to the hostel block, but found none of the employees there.
When Julian left the premises between 1530 and 1545, the employees
were nowhere to be seen. When he subsequently looked at their
clock
cards for that Friday, he found that they had all clocked out at
1630, save for one employee who had clocked out at 1631.
He
testified that, as the work had been completed much earlier, there
was no reason for them to remain on the premises, they
did not
actually work until 1630, and they were not entitled to overtime
payments.
A security officer, Abel Moleleki, also testified at the
arbitration. He was stationed at the main gate at 1630 and he did
not see any of the employees leaving at that time. The only person
that he saw leaving the premises after 1600 was the receptionist.
Moleleki left at 1745. His recollection was that most of the
employees left at 1430.
All twelve employees testified that they had worked until 1630. Some
of them also testified that it was their understanding that,
even if
they finished the work in a shorter time, they would still be paid
two hours’ overtime.
the award
The arbitrator pointed out that he had two mutually destructive
versions before him. He had regard to relevant case law as set
out
in,
inter alia
,
Plaatjies v Road Accident Fund
4
and
WESUSA v Jacobsz
.
5
In the latter case, Francis AJ
6
stated:
“
The upshot is that I am
faced with two conflicting versions, only one of which can be
correct. The onus is on the respondent [employer]
to prove on a
preponderance of probabilities that the employees were dismissed for
having taken part in an unprotected strike.
The onus will be
discharged if the respondent can show credible evidence that his
version is the more probable and acceptable.
The.credibility of the
witnesses and the improbability of what they say should not be
regarded as separate enquiry to be considered
piecemeal. They are
part of a single investigation into the acceptability or otherwise of
the respondent’s version, an investigation
where the question
of demeanour and impression are measured against the content of a
witness’s evidence, where the importance
of any discrepancies
or contradictions is assessed, and where a particular story is tested
against the facts which cannot be disputed
and against the inherent
probabilities, so that at the end of the day one can say with
conviction that one version is false and
may be rejected safely.”
The arbitrator also took into account that the burden of proof, on a
balance of probabilities, that the dismissal was substantively
fair,
rests on the employer.
Applying these principles to the evidence before him, the arbitrator
accepted Julian's evidence that the employees were nowhere
to be
found when he walked through the plant and the hostel searching for
them. The employees in their evidence could not explain
why they
were not where they were supposed to have been when Julian went to
inspect the area. The employees, on the other hand,
all confirmed
that the work had been done but none of them could say when it was
completed. The arbitrator also accepted the
security guard’s
evidence that the employees did not clock out
en masse
at
1630 as reflected on their clock cards. The security guard would
have noticed such a mass exit.
The arbitrator came to the conclusion that the employees must have
known that they were paid to work for the full duration of
the shift
and by absenting themselves they knew that they were "stealing
their employer’s time".
7
He did not believe the employees' version that they were instructed
to stay on the premises when they had completed the work;
and that
they would still be paid overtime.
Regarding the additional charge against Makgoro, the arbitrator was
not convinced that Makgoro believed that he could leave the
workplace at such a crucial time, since he was the only senior
member of management present at the time. This action, the
arbitrator
found, was a gross dereliction of his duties.
The arbitrator came to the conclusion that the employer had shown
that the dismissal of the employees was fair. With regard to
sanction, he took into account that the employees acted dishonestly
by not being present at the workplace when they should have
been and
by clocking out as if they were present at all times. He found that
the employees had violated the trust relationship,
which forms the
basis of the employment contract. He also came to the conclusion
that the employees' misconduct had rendered
the continuation of the
employer/employee relationship impossible. For those reasons, he
found the dismissal of the employees
to have been substantively
fair.
Is the award reviewable?
I have to decide whether the decision reached by the arbitrator is
one that a reasonable decision maker could not reach.
8
Mr
Boda
, for the employer, drew my attention to the recent
decision of the Labour Appeal Court in
Mutual Construction
Company Tvl (Pty) Ltd v Ntombela NO
9
.
He pointed out that the arbitrator’s decision in this case
is directly supported by the reasoning of the LAC in that case.
The
commissioner in
Mutual Construction
had found that the
employee had defrauded his employer by altering his timesheets in
order to claim overtime payment. Nevertheless,
he found dismissal to
have been unfair. The LAC found that the employee was not contrite,
and did not admit to the misconduct.
It found that the altering of
his timesheets amounted to gross dishonesty and fraud which was
bound to cause harm and prejudice
to the employer's business
operation. Retaining the employee in the company’s employ, in
the circumstances, would have
been severely detrimental to the
company's operational requirements and therefore inappropriate.
Ndlovu AJA found that any continued
working relationship between the
employer and employee was, as a result of the employee’s
misconduct, rendered intolerable.
Accordingly, the court was
satisfied that the decision reached by the commissioner in that case
– that the dismissal of
the employee was unfair -- was indeed
one which a reasonable decision-maker could not make. The court
found that the employee’s
misconduct was a fair reason to
justify his dismissal.
The facts before me and before the arbitrator in this case are very
similar to those in the
Mutual Construction
case. On the
evidence before him, having weighed up the probabilities, the
conclusion that the arbitrator reached is not one
that a reasonable
decision maker could not have made. The arbitrator's finding that
dismissal was a fair sanction for the misconduct
is also not
unreasonable.
Similarly, the arbitrator's finding with regard to Makgoro is not
unreasonable. Makgoro was meant to supervise the employees
until
1630. By this own admission, he was not present. The arbitrator's
finding that his actions amounted to gross dereliction
of his duties
is not unreasonable.
Conclusion
On the test as set out in
Sidumo
, the award is not
reviewable. There is an ongoing relationship between the National
Union of Mineworkers and Vereeniging Refractories.
I do not consider
it appropriate in law or fairness to order either party to pay the
other party's costs.
Order
The application for review is dismissed. There is no order as to
costs.
_______________________
STEENKAMP J
Date of hearing:
17 February 2011
Date of judgment:
15
March 2011
For the applicants:
Adv MI Manautlala
Instructed by: ES Makinta
For the respondent:
Adv FA Boda
Instructed by: Deneys Reitz
1
(2007) 28
ILJ
2405
(CC)
2
The delay in the period between the issuing of
the award and the hearing of the review application is largely due
to attempts
by the parties to reconstruct a deficient record. It is
not clear why there was an 18 month delay between the dismissal and
the
issuing of the award; however, it was a lengthy arbitration,
running over 6 days in a piecemeal fashion in August, October and
December 2006.
3
His name is variously given as “Edwin
Julian”, “Julian Edwin” or “Edwin Julyan”.
I shall refer
to him as “Julian” throughout.
4
[1999] 1 All SA 162 (SE) 168
5
[2000] 8 BLLR 977
(LC) para [39]
6
as he then was
7
Referring to the minority judgment in
CWIU
v Boardman Brothers (Natal) (Pty) Ltd
[1995]
3 BLLR 1 (LAC)
8
Sidumo v Rustenburg Platinum Mines Ltd
(2007) 28
ILJ
2405 (CC)
9
[2010] 5 BLLR (513)