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[2011] ZALCJHB 224
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Dunlop Belting Products (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (J 1260/2010) [2011] ZALCJHB 224 (8 July 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Not reportable
Case no: J 1260/2010
In the matter between:
DUNLOP BELTING PRODUCTS (PTY) LTD
..................................................
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
.....................................................
First
Respondent
COMMISSIONER MS RAFFEE N.O
................................................
Second
Respondent
CEPPAWU obo KENNETH QALAZA
.................................................
Third
Respondent
Date of hearing : 05 July 2011
Date of judgment : 08 July 2011
JUDGMENT
FOURIE AJ
Introduction
The third respondent (the employee) was employed by the applicant
(Dunlop) as a qualified fitter. Dunlop manufactures conveyer
belts
for the mining industry. During the nightshift on 18 August 2009,
the employee and the duty electrician were instructed
to investigate
a malfunction on a machine known as the Euler Press (the press).
The electrician could not find any electrical faults on the machine.
The employee made certain adjustments to the hydraulic system
of the
press, after which the press worked normally. The following morning,
when the manager (van der Merwe) arrived at the premises,
the press
was leaking oil and overheating, and this situation potentially
endangered lives and property.
An expert technician from a company that Dunlop had engaged to
service the hydraulic equipment on its machines attended to repair
the press. He later sent an email to Dunlop (titled ‘Service
Report’) in which he reported that the damage was caused
by
unauthorised tinkering with the hydraulics system. The costs to
repair the press were substantial.
The employee was suspended and charged with misconduct described as
‘Gross negligence / dereliction of duties, breach of
safety
and breach of trust’. The gist of the complaint was that
fitters were prohibited from working on hydraulic systems
on any
machines as they were not qualified to do so, that the employee was
aware of this rule, and that his conduct (in making
adjustments to
the hydraulics system) created a serious safety risk and resulted in
substantial losses to Dunlop.
A disciplinary inquiry was convened. The employee elected to be
represented by a supervisor, but the employer refused, on the
grounds that the supervisor formed part of Dunlop’s management
team, and a shop steward was appointed to represent him.
Various witnesses, including the technician that inspected and
repaired the press, presented evidence at the inquiry. The employee
was found guilty of misconduct and was dismissed. An internal appeal
failed. The employee referred a dispute of unfair dismissal
to the
CCMA, and the second respondent (the arbitrator) was duly appointed
to arbitrate the dismissal dispute.
At the arbitration, Dunlop presented the evidence of Van der Merwe
(the manager) and Markgraaf (the electrician). Dunlop did
not call
any other witnesses, and its representative did not mention that any
witnesses were unavailable. The employee testified,
and called two
other fitters employed by Dunlop.
Both parties submitted bundles of documents. It appears that no
attempts were made to reach agreement on the status of documents.
No
pre-arbitration minute was filed, and the transcript does not
reflect any agreement or debate on the status of documents.
The crux of the dispute at the arbitration was whether fitters were
prohibited from working on hydraulics systems. Van der Merwe
testified that he joined Dunlop in March 2009, and soon thereafter
he put a stop to the existing practice of fitters working
on
hydraulics systems. He appointed an outside company with expertise
in hydraulics to attend to maintenance and repairs. The
company was
available to dispatch a qualified technician to Dunlop at any time
should a problem arise. Van der Merwe communicated
the new rule to
all the fitters verbally during various staff meetings.
The employee testified that there was no general prohibition on
fitters carrying out adjustments and minor repairs to hydraulics
systems. The prohibition was only in respect of a particular machine
(not the press in question) as it was under warranty. The
employee
called two other fitters currently employed by Dunlop to confirm his
version. Reference was also made to log records
kept by the fitters,
which indicated that they would on occasion work on hydraulic
equipment. The fitters testified that management
were quite aware of
this practice.
Faced with a material dispute as to the existence of a rule
prohibiting fitters working on hydraulic equipment, the arbitrator,
after assessing the credibility of witnesses and the probabilities,
reached the conclusion that the version attested to by the
employee
and the other fitters was more probable than that of van der Merwe.
The arbitrator found that the employee’s dismissal was
substantively unfair, as no clear prohibition was proved (and thus
no violation). In addition, the arbitrator held that the refusal by
the chairperson of the disciplinary inquiry to allow the
employee to
choose a representative of his choice from Dunlop’s staff, and
the failure to postpone the matter to allow
the new representative
time to consult and prepare, rendered the dismissal procedurally
unfairn
The arbitrator ordered that the employee be retrospectively
reinstated`with backpay.
Dunlop subsequently launched revieW proceedings in which it seeks to
review and!set aside the arbitration award. The review application
is unopposed. Various gzounds of review are raised in the founding
and suppleoentary affidavit. With the excepti?n of one alleged
defect which falls under qection 14u(2)(a)of the LA"our
Relations Act (LRA),
1
and which will be dealt ith separately, Dunlop’s revkew is
based on an attack on the reasonableness of the result.
Reviewing for ‘reasonableness’ – general
principles
The Supreme Court of Appeal summarised this type of review in the
recent judgment of
Samancor
2
:
“
It
is trite that an appeal does not lie against the award of an
arbitrator. Even if the reviewing court believes the award to be
wrong, there are limited grounds upon which it is entitled to
interfere.
Section 145
of the
Labour Relations Act 66 of 1995
permits
the Labour Court to set aside an award for one or other defect stated
in
s 145(2)
– none of which are now applicable. But it was
recognised in
Sidumo
v Rustenburg Platinum Mines Ltd
,
adopting what was held in
Carephone
(Pty) Ltd v Marcus NO
,
that an award may also be set aside if it is one that ‘a
reasonable decision-maker could not reach’, and it was on
that
basis that Samancor sought to have the award set aside. Thus the
question that was before the Labour Court – and subsequently
before the Labour Appeal Court – was whether the award in this
case was so defective as to fall within that category.”(footnote
omitted).
In a recent paper
3
,
Anton Myburgh SC summarizes the review test to be applied as
prescribed in
Sidumo
, and as interpreted by the Labour Appeal
Court and Supreme Court of Appeal (most recently in
Samancor
4
)
as follows:
“
the
Sidumo
test is a
result-based test, which test the reasonableness of the result /
outcome of the award;
in order to assail an award on
the basis of the
Sidumo
test, the applicant must thus assail
not only the commissioner’s reasons, but also the result of
the award;
the reasonableness of the
result of the award stands to be determined on all the material that
was before the commissioner (with
the result that the award can be
sustained for reasons not considered by the commissioner);
the focus is on whether the
result of the award falls within a range of reasonable outcomes, as
opposed to whether it was correct
(this so as to maintain the
distinction between a review and an appeal); and
seen in the context of the
above, the fact that a commissioner (as occurred in
Samancor
)
commits an error in the process of his reasoning will not result in
the
Sidumo
test being met, unless the result of the award is
incapable of justification on all the material before the
commissioner.”
Recently, the LAC in
Bestel v Astral Operations Ltd and Others
[
5
worded the test as follows:
“
It
is important to emphasise…that
the
ultimate principle upon which a review is based is justification for
the decision as opposed to it being considered to be correct
by the
reviewing court
;
that is whatever this Court might consider to be a better decision is
irrelevant to review proceedings as opposed to an appeal.
Thus, great
care must be taken to ensure that this distinction, however difficult
it is to always maintain, is respected.”
(My emphasis).
Material properly before the arbitrator
Many of the complaints raised by Dunlop in the review papers relate
to the arbitrator’s failure to consider and attach
proper
weight to evidence presented at the internal disciplinary inquiry,
but not repeated at the arbitration. On behalf of Dunlop
it was
argued that the arbitrator should have scrutinized the content of
the documents contained in Dunlop’s bundle of
documents,
regardless of whether this evidence was referred to or repeated at
the arbitration.
For instance, the failure by the expert to present evidence at the
arbitration does not, according to counsel for Dunlop, preclude
the
arbitrator from considering this evidence, as documents in the
bundle contain a summary of the expert’s evidence presented
at
the inquiry, in the form of an email, and the summarised minute of
the disciplinary proceedings. In a similar vein, it was
argued that
evidence at the disciplinary inquiry presented by management
witnesses as to the existence of the prohibition, should
be taken
into consideration when assessing the credibility of the employee
and his witnesses, despite the fact that the witnesses
were not
called to testify at the arbitration.
To determine whether this submission has merit, it is necessary to
consider the role of the arbitrator in statutory arbitrations
in
terms of the LRA.
Section 138
of the LRA states:
“
(1)
The commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the
dispute
fairly
and quickly, but must deal with the substantial merits of the
dispute
with
the minimum of legal formalities.
(2)
Subject to the discretion of the commissioner as to the appropriate
form of the proceedings, a party to the
dispute
may give
evidence, call witnesses, question the witnesses of any other party,
and address concluding arguments to the commissioner.”
The Courts have interpreted this provision in various decisions.
Briefly, the arbitrator’s primary duty entails determining
whether the decision to dismiss was fair
6
.
As explained by the Constitutional Court in
CUSA v Tao Ying Metal
Industries and Others
7
:
“
Consistent
with the objectives of the LRA, commissioners are required to ‘deal
with the substantial merits of the dispute
with the minimum of legal
formalities’. This requires commissioners to deal with the
substance of a dispute between the parties.
They must cut through all
the claims and counter-claims and reach for the real dispute between
the parties. In order to perform
this task effectively, commissioners
must be allowed a significant measure of latitude in the performance
of their functions. Thus
the LRA permits commissioners to ‘conduct
the arbitration in a manner that the commissioner considers
appropriate
’
But in doing so,
commissioners must be guided by at least three considerations. The
first is that they must resolve the real dispute
between the parties.
Second, they must do so expeditiously. And, in resolving the labour
dispute, they must act fairly to all the
parties as the LRA enjoins
them to do.
A
commissioner must, as the LRA requires, ‘deal with the
substantial merits of the dispute’. This can only be done by
ascertaining the real dispute between the parties.
In
deciding what the real dispute between the parties is, a commissioner
is not necessarily bound by what the legal representatives
say the
dispute is. The labels that parties attach to a dispute cannot change
its underlying nature. A commissioner is required
to take all the
facts into consideration including the description of the nature of
the dispute, the outcome requested by the union
and the evidence
presented during the arbitration. What must be borne in mind is that
there is no provision for pleadings in the
arbitration process which
helps to define disputes in civil litigation. Indeed, the material
that a commissioner will have prior
to a hearing will consist of
standard forms which record the nature of the dispute and the desired
outcome. The informal nature
of the arbitration process permits a
commissioner to determine what the real dispute between the parties
is on a consideration
of all the facts. The dispute between the
parties may only emerge once all the evidence is in.” (footnote
omitted).
In
Scheme Data Services (Pty) Ltd v Myhill NO and Others
8
Ngalwana AJ explained the injunction to deal with the dispute ‘with
a minimum of legal formalities’ as follows:
“
The
scheme of the LRA is such that employment-related disputes must be
conciliated and arbitrated by the CCMA or bargaining council
with the
minimum of legal formalities
(section
138(1)
of the LRA). The idea is that such disputes must be
resolved reasonably expeditiously, equitably and with minimum fuss
and posturing
that sometimes goes with litigation in the higher
courts. The effect is that indigent parties are not non-suited or
otherwise prejudiced
simply because they cannot afford a lawyer; and
disputes are brought to finality much quicker than would be the case
in the ordinary
courts.”
In
Naraindath v CCMA and& Others,
9
the arbitrator elected to take into account evidence presented at
the disciplinary inquiry in rejecting the veracity of a version
before him. On review, the applicant complained that the
arbitrator’s conduct in basing the finding on hearsay evidence
amounted to a reviewable irregularity. Wallis AJ undertook a
detailed analysis of the duties of arbitrators in conducting
statutory
arbitrations in terms of the LRA, and held that:
“
It
would stultify the entire purpose of the legislation if this Court
were, in the face of such clearly stated intentions, to insist
on
arbitrators appointed by the CCMA to resolve unfair dismissal
disputes conducting those proceedings in slavish imitation of
the
procedures which are adopted in a court of law and subject to the
technical rules of evidence which apply in those courts.
Such an
approach is in my view contrary to the express provisions of the LRA.
Section 138(1)
is the decisive provision in this regard. It empowers
the commissioner to conduct the arbitration in such manner that the
commissioner
considers appropriate in order to determine the dispute
both fairly and quickly. Lest the commissioner is under any
misapprehension
as to what is required the section goes on to direct
that he or she discharges his or her functions “with the
minimum of
legal formalities”.
In my view it is perfectly clear
in these circumstances that a complaint that a commissioner has
conducted proceedings in a way
which differs from the way in which
the same dispute would be dealt with before a court of law cannot as
such succeed.”
It is clear that an arbitrator has a discretion to admit hearsay
evidence, and to attach to it the appropriate weight, as he
or she
sees fit. The exercise of this discretion will rarely be cause for a
successful review. This is in effect what Dunlop
seeks to attack in
the present review. While an arbitrator may elect (
meru motu
or otherwise) to take into account the contents of documents placed
before him or her, the failure or refusal to do so does not
in
itself amount to a reviewable irregularity. To find otherwise would
frustrate the entire purpose and content of
section 138
of the LRA.
By way of analogy, even in conventional civil litigation, a litigant
cannot merely attach documents to an affidavit and expect
a court to
take cognisance of the content thereof.
10
If this approach doesn’t even pass muster in civil litigation,
it is unlikely to ever achieve success in review proceedings.
Complaint of interference in cross-examination
Dunlop complains that the arbitrator committed misconduct in his
duties as arbitrator, in that he interfered with cross-examination
of the employee. During cross-examination, the employee disputed the
accuracy of the minutes of the inquiry, where it was recorded
that
the employee acknowledged the general prohibition on fitters working
on hydraulic equipment. When the cross-examiner complained
to the
arbitrator that ‘that is his opinion but it is not true’,
the arbitrator advised him to put the question directly
to the
witness. The representative moved on to another topic.
11
Later during the cross-examination, it was put to the employee that
he had fabricated the logbook entry. The employee denied
this, and
the cross-examiner responded with the comment that ‘it is very
surprising to hear that you are now bringing up
a new dispute that
you are now disputing the correctness of the minutes issued’.
The arbitrator then said ‘That you
can reserve for your
argument. Put your next question please’, to which Dunlop’s
representative responded ‘I
do not have any further
questions’.
12
This hardly amounts to misconduct by the arbitrator, or interference
with cross-examination to the point of unfairness to a party.
The
employee’s version throughout the arbitration was to deny the
general prohibition on working on hydraulics. This was
made clear in
the opening address. This was confirmed by documentary evidence (in
the form of logbooks) and by two other witnesses,
who were not
challenged in cross-examination on this point.
There is no merit to this ground of review.
Conclusion
The manner in which the arbitrator dealt with the evidence before
him is in my view entirely consistent with his powers and duties
as
an arbitrator.
The arbitrator correctly identified the real dispute (existence of a
prohibition), recognised that he was faced with conflicting
versions, and proceeded to make findings on credibility of witnesses
and versions, and on the overall probabilities, with reference
to
relevant evidence. Having decided the probabilities in favour of the
employee, the arbitrator concluded that the dismissal
was
substantively unfair. He then applied the primary remedy prescribed
by the LRA, namely restoration of the employment contract
(reinstatement with backpay).
In summary, the arbitrator’s award is one that a reasonable
arbitrator could reach, the process followed in reaching the
award
was consistent with the arbitrator’s powers, and none of the
grounds of review in
section 145(2)(a)
of the LRA were established.
The review application is dismissed, with no order as to costs.
__________________
Greg Fourie
Acting Judge of the Labour Court
Appearances:
For the applicant: Adv W Hutchinson, instructed by Fluxmans Attorneys
For the respondents: No appearance for any respondents
1
66
of 1995.
2
National
Union of Mineworkers v Samancor Ltd
(625/10)
[2011] ZASCA 74
(25 May 2011) para 5.
3
Reviewing
the Review Test: Recent Judgments and Developments (not yet
published)
4
National
Union of Mineworkers v Samancor Ltd
(625/10)
[2011]
ZASCA 74
(25 May 2011).
5
Bestel
2011] 2 BLLR 129
(LAC) at para 18.
6
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28
ILJ 2405 (CC) at para 79.
7
[2009]
1 BLLR 1
(CC) at para 65-66.
8
[2009]
4 BLLR 381
(LC) at para 22.
9
[2000]
6 BLLR 716
(LC) at para 26 and 27.
10
Swissborough
Diamond Mines v Government of the Republic of South Africa
and
Others
1999 (2) SA 279
(T).
11
Transcript,
bundle p186.
12
Transcript,
bundle p189.