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[2011] ZALCJHB 96
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Potgieter v Tubatse Ferrochrome and Others (JR 1874/08) [2011] ZALCJHB 96; [2012] 5 BLLR 509 (LC); (2012) 33 ILJ 953 (LC) (10 November 2011)
9
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
reportable
CASE NO JR 1874/08
In the matter between:
DIRK WILLEM POTGIETER
….........................................................................
Applicant
and
TUBATSE FERROCHROME
…...........................................................
First
Respondent
DIRECTOR OF THE MEIBC
JOHANNESBURG
….......................
Second
Respondent
COMMISSIONER KHABO
MAMBA
…...............................................
Third
Respondent
Heard: 12 October 2011
Delivered: 10 November
2011
___________________________________________________________________
JUDGEMENT
___________________________________________________________________
LOUW AJ
[1] The applicant seeks
to review and set aside an arbitration award made by the arbitrator
under the auspices of the MEIBC.
[2] The applicant was
charged at a disciplinary inquiry for his alleged failure to obey a
reasonable instruction to report for duty,
absence of leave without
permission and insubordination.
[3] The applicant pleaded
not-guilty to these charges. On the evidence presented to the
chairperson of the disciplinary proceedings,
the applicant was found
guilty and dismissed. After the confirmation of the finding and
sanction on appeal, the applicant referred
a dispute to the MEIBC
alleging that he was unfairly dismissed. The arbitrator (i.e. the
third respondent) concluded in her award
that the applicant’s
dismissal was substantively and procedurally unfair. Instead of
affording the applicant the primary
remedy of reinstatement, she
elected to only order the employer to compensate the applicant in an
amount equal to his last annual
remuneration. I must at this stage
add that it is obvious from the arbitrator’s award that she
duly considered the evidence
presented to her and in an exemplary
fashion analysed this evidence to ultimately conclude that the
applicant’s dismissal
was unfair.
Nature of the relief
sought
[4] In considering the
application to review the award issued by the arbitrator, despite the
applicant seeking totally different
relief, I shall, however, assume
that what the applicant seeks, is that the award is merely to be set
aside by this court insofar
as the arbitrator did not order his
reinstatement, and subsequently determine the appropriate remedy, in
the event that I conclude
that the applicant should have been granted
reinstatement.
Background to the
dismissal
[5] The applicant was
employed as a project engineer, and in his normal course of duties
reported to the employer’s (the first
respondent) System
Manager. At the time of his alleged transgressions the applicant was
in charge of the ‘ground water remediation
project’.
[6] Following his
dismissal by the employer the applicant, however, an article
published in a magazine called
Mining
Weekly.
[7] A perusal of an
extract of the relevant article,
1
reads as follows:
‘
The report
describes the environmental pollution caused by Tubatse Ferrochrome
(the first respondent) in the Steelpoort Valley.
Special emphasis
will be placed on hexavalent chromium pollution.’
[8] The purpose of the
article, as put forward by the applicant was:
‘
To ensure
that the public is informed about the extent of the pollution and the
dangers involved. Effective measures are put in
place to ensure that
the public is not exposed to the hexavalent chromium[...]
contaminated underground water (sic). Effective
measures are put in
place to prevent further contamination. Effective measures are put in
place to remove the existing contamination.’
[9] The applicant, and on
his own evidence, wrote the article “months before” his
dismissal. When it was put to the
applicant that his article was
published by him to intentionally harm the reputation of the
employer, he
inter
alia
responded
by claiming that the article was compiled by him for purposes of
protecting the public and the environment, and that he
is protected
by law for making these types of disclosures.
[10] The issue of an
alleged protected disclosure was raised in argument during the
arbitration process by the applicant’s
representative by
quoting various sections from the Protected Disclosures Act
2
(PDA) and pointing out
the following.
3
‘
a.
The
employer bases his argument on the fact that the applicant had
disclosed certain information with (sic) respect to the water
usage
of the employer to the environmental inspectors and the press which
damaged the employer’s reputation in the eyes of
the public.
These disclosures were made by the
applicant after the date of his dismissal;
At no stage does the employer deny
the contents of these reports by the applicant are correct;
The employer merely says that it
should not have been disclosed to the public
and later on:
There can be no doubt that this
protection extends to a situation such as this where the employer
seeks to prevent the reinstatement
of the applicant after an unfair
dismissal by virtue of reference to the disclosure by the applicant
of information relating
to potential damage to the environment by
the employer;
The applicant’s actions in
disclosing information relating to the contamination of water in
Steelpoort area fall squarely
within the ambit of the provisions of
the Protected Disclosures Act, and as such his actions cannot
constitute a destruction
of the trust relationship between the
employer and the employee.’
[11] The arbitrator
answered these arguments in her award, being the central thread in
her reasoning for concluding that reinstatement
was impractical, in
the following manner:
4
‘
The
applicant’s contention that this was a ‘Protected
Disclosure’, made in terms of the Protected Disclosure Act,
is
not plausible and probable in my view. In terms of the Protected
Disclosures Act, the disclosure that is being made is protected
if it
is made in “good faith”. It is highly improbable that the
applicant made the disclosure in good faith, as it
was only made
after his dismissal, yet it is common cause that he had the report
with him long before his dismissal. I am of the
view that it is
highly probable that the disclosure was made by a vindictive employee
who wanted to humiliate and embarrass his
employer to get even, so to
speak.
It is for this reason that I find that
reinstatement would be impractical.’
[12]
Not only do I agree with the third respondent’s exposition of
the law, but more importantly her conclusion is certainly
a finding
which a reasonable commissioner could have reached on the evidence
before the commissioner. See
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
;
5
Fidelity Cash Management Service v
CCMA and Others.
6
[13] Employees are
protected under the PDA if they make wider disclosures (e.g. even to
the media). This is known as a general protected
disclosure.
Crucially, to be protected there must also be a good cause for going
outside and the particular disclosure must be
reasonable. There are
four good causes recognised in law.
7
The concern was raised
internally or with a prescribed regulator, but has not been properly
addressed
The concern was not
raised internally or with a prescribed regulator because the
whistle-blower reasonably believed he or she
would be victimised
The concern was not
raised internally because the whistle-blower reasonably believed a
cover-up was likely and there was no prescribed
regulator; or
The concern was
exceptionally serious.
[14] Before considering
the four good causes recognised in law, the disclosure must have been
made in
good
faith
(own
emphasis) by an employee.
8
[15] No evidence was led
to indicate that the concerns addressed in the article published in
the
Mining
Weekly
were:
raised internally; the applicant reasonably believed (months before
his dismissal) that he would be victimised; and not raised
internally
because a cover-up was likely.
[16] Such evidence may
have gone a long way to show that the applicant had good cause to
make the disclosure, and should therefore
be protected. It may
certainly have also convinced the commissioner that the disclosure
was made in good faith.
[17] No evidence was led
as to why the applicant only decided to publish the article after his
dismissal instead of keeping it a
secret “months before my
dismissal.” Such an explanation might have moved the
commissioner to conclude that the applicant
indeed acted in good
faith and not with the intention of being vindictive as a result of
his dismissal.
[18] There are, however,
important aspects concerning the applicant’s review application
which I believe need to be addressed.
[19] In the applicant’s
affidavit in support of his Notice of Motion to review, set aside or
correct the award, the applicant,
first of all, and in 9 pages of
this affidavit, deals with issues which were not dealt with during
the arbitration process, and
which could never assist this Court in
deciding the crisp and clear question for consideration. In addition
to that the applicant
served and filed 56 pages as part of the
record, including the applicant’s application for condonation
for the late referral
of his dispute to the MEIBC; the certificate of
outcome; the ruling on his condonation application; the employer’s
application
for a postponement of the arbitration hearing; the
applicant’s opposing affidavit to the postponement and lastly
the postponement
ruling. Why it was necessary to file and serve these
documents as part of the record only the applicant or his attorney of
record
will know.
[20] To further burden
the record, the applicant served and filed the entire transcript of
the proceedings before the commissioner
held on 8 November 2007, 18
February 2008 and a reconstruction of the proceedings on 28 May 2008.
In total this comprises of almost
300 pages.
[21] In continuance of
burdening the record, the applicant subsequently filed a
supplementary affidavit dealing with his ‘motivation
for
reinstatement’. This particular affidavit comprises of 139
pages. To top it all the applicant finally submitted Heads
of
Argument totalling 170 pages.
[22] Since no notice was
filed with this Court to indicate that attorney L Hugo of Nelspruit
no longer represented the applicant,
it was quite a surprise when the
applicant in person appeared at the hearing of this matter on 12
October 2011, and until then
I assumed that the serving and filing of
all pleadings on behalf of the applicant were the efforts of Mr Hugo.
Based on this assumption,
I took the existence of the voluminous
record and the unjustifiable need for this up with the parties. Save
for counsel for the
respondent agreeing that no need existed for the
serving and filing of at least eighty percent of the transcript and
the other
documents and pleadings as set out above, the applicant
gave me no indication that it was to a large extent he who elected to
serve
and file these unnecessary further pleadings. On closer
inspection it may very well have been the product of the applicant’s
efforts and not that of his attorney of record.
[23] The rules of this
Court allows for the Applicant in a review application to serve and
file only part of the record of the arbitration
proceedings.
See
Rule
7(a) (5) and (6) of the Rules of the Labour Court. In
New
Clicks SA (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others,
9
the learned judge
remarked as follows:
‘
But
where a reviewing party like the applicant before me was able to
demonstrate its grounds on portions of the records available,
such a
party is not prejudiced and should not gain an advantage simply
because certain portions not germane to its grounds are
missing.’
[24] In what appears to
be an opposing view, the learned Francis J in
Boale
v National Prosecuting Authority of SA and Others,
10
stated as follows:
‘
It is trite
that there is a duty on an applicant to provide a review court with a
full transcript of the proceedings that he wishes
to have reviewed.
The applicant has failed to provide this court with a full transcript
of the proceedings that I he wishes to
have reviewed. Where an
applicant fails to provide a full transcript of the proceedings, the
review application must be dismissed.
The only exceptions would be
where the tape cassettes are missing or where the parties are unable
to reconstruct the record. Where
an applicant is furnished with all
the audio cassettes and fails to transcribe the audio cassettes, this
court must follow only
one route which is to dismiss the
application.’
and continued:
‘
I am bound
by the decision of
JDG
Trading (Pty) Ltd t/a Russells v Whitcher NO and Others
(2001)
22 ILJ 648 (LAC)
[2005] ZALC 1
; ;
[2001] 3 BLLR 300
(LAC).’
11
[25] I am, with respect
not inclined to agree with the learned judge that
JDG
Trading (Pty) Ltd t/a Russells v Whitcher NO and Others,
12
did indeed lay down such
a bold and unqualified obligation. What the learned judges of the
appeal court found was that the applicant
had been obliged to do, in
terms of rule 7A(5)-(7) of the Rules of this Court, was to have the
handwritten record and the cassette
tapes transcribed, which the
appellant had failed to do in that matter. In the absence of the
transcribed record of the proceedings
before the CCMA
the
Labour Court had been in no position to adjudicate properly on the
application before it
(
own underlining) and it ought, accordingly, to have dismissed the
review. This was clearly a case where the
information
before the labour court
(own
underlining) did not entitle this court to review and vary the award
made by the relevant commissioner
[26] Similarly in
Lifecare
Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v
Commission for Conciliation, Mediation and Arbitration
and Others,
13
the learned judges
remarked:
‘
It follows
that what Lifecare was obliged to place before the Labour Court in
terms of rule 7A was a transcript of F the electronic
recording of
the arbitration proceedings, which was the “record”
for
the purposes of the review.
’
(own
underlining)
[27] In
Department
of Transport, North West Province v Sebotha NO and Others
,
14
this court found that the
arbitrator's handwritten notes were incomplete and provided a partial
recording of the testimony of the
only witness for the applicant.
Since the applicant based its attack on that part of the award that
criticized the testimony of
the witness and found the witness to be
unreliable,
his
testimony was crucial in determining whether or not to review the
award. In the absence of a proper record the court was unable
to
determine whether or not there was any basis for the criticism by the
arbitrator and his conclusion that the witness had been
an unreliable
witness
.
(own underlining)
This becomes all the more
clear when the learned judge remarked the following:
‘
There are
however instances where the court may be able to determine whether or
not the award is reviewable based on specific and
relevant portions
of the record only or for that matter on the arbitration award alone.
This would be so in particular if the irregularity
complained of is
patent from a reading of the award. See
Shoprite
Checkers (Pty) Ltd v CCMA
(2002)
23 ILJ 943 (LC)
;
[2002] 7
BLLR
677
(LC) at
para 11.’
15
[28] In my view parties,
especially applicants and their attorneys who practices in this
court, and deem themselves to be
au fait
with the rules of
this court and its judgements, should be careful of what they place
before this court, or not, so as to not overburden
Judges by obliging
them to read pleadings, transcripts and documents which in the end
serves no purpose for deciding any attack
or challenges that are made
on the awards issued by arbitrators. Judges of this Court have more
than enough to do otherwise.
[29] Had I been convinced
that the applicant’s attorney of record was somehow responsible
for the manner in which the record
in this matter was burdened with
irrelevant issues for purposes of determining the question whether
the commissioner’s decision
was that of a reasonable decision
maker, I would have had no hesitation in awarding cost against him
de
bonis propiis.
[30] As I have stated
before, the test to determine whether or not a conclusion reached by
an arbitrator is reasonable or otherwise
is that of a reasonable
decision-maker. The question to be answered in considering the
reasonableness or otherwise of an award
is whether the conclusion of
the arbitrator is one which a reasonable decision maker could not
reach. This is certainly not the
case in the current matter.
I accordingly make the
following order:
The application to have
the award reviewed, set aside or corrected is dismissed.
The applicant is ordered
to pay the costs.
____________________
LOUW AJ
APPEARANCES:
For the applicant: In
person
For the Respondent:
Advocate L. Giai-Coletti
Instructed by: Webber
Wentzel
1
Annexure
“A” to Applicant’s supplementary affidavit
2
Act
26 of 2000
3
Applicant’s
Heads of Argument submitted to the arbitrator
4
Para
6.11in the award
5
2008
(2) SA 24
(CC)
6
(2008)
29 ILJ 964 (LAC)
.
7
Section
9 of the PDA
8
Section9(1)of
the PDA
9
(2008)
29 ILJ 1972 (LC)
at para 26
10
(2003)
24
ILJ
1666 (LC) at paragraph 5
11
Id
at para 9
12
(
2001)
22 ILJ 648 (LAC)
13
(2003)
24
ILJ
931 (LAC) at para 13.
14
(2010)
31 ILJ 97 (LC
)
15
Id
at para 17.