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[2011] ZALCJHB 189
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Halberg Guss (Pty) Ltd v Metal and Engineering Industry Bargaining Council and Others (JR24/09) [2011] ZALCJHB 189 (10 November 2011)
3
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
CASE NO.
JR24/09
In the matter between:
HALBERG GUSS (PTY)
LTD Applicant
and
METAL AND ENGINEERING
INDUSTRY
BARGAINING
COUNCIL First Respondent
MPHO PHETLA
N.O. Second Respondent
NUMSA obo JOHANNES
MOGAPI Third Respondent
Heard: 12 October
2011
Delivered: 10
November 2011
___________________________________________________________________
JUDGEMENT
___________________________________________________________________
LOUW AJ
[1] This matter concerns
an application in terms of
s
145
of the Labour Relations
Act
66 of 1995
(the Act) to review an award reinstating the third respondent
(employee) in the applicant's employ. The award was made by the
second respondent (the arbitrator), an arbitrator appointed by the
first respondent.
[2] The third respondent
was dismissed on 24 January 2007 following a disciplinary enquiry
into an alleged incident involving fighting
and assaulting another
employee, one Lazarus Thage. The incident occurred on 22 January
2007.
[3] The third respondent
referred a dispute concerning his dismissal to the first respondent
for conciliation, which process failed.
The matter came before the
arbitrator who found the third respondent’s dismissal to be
unfair and accordingly reinstated
him with retrospective effect.
[4] A reading of the
award shows that the arbitrator in essence found that the third
respondent acted in self-defence, or as the
arbitrator formulated it,
that the pushing between the third respondent and Thage was, insofar
as it concerned the third respondent’s
involvement, an act to
“avert further blows from Thage”, and that the pushing
between the third respondent and Thage
“came about after the
insults and attacks by Thage towards the third respondent.”
[5] The applicant attacks
the award on various grounds. One of these grounds, essentially is a
complaint that the applicant did
not have a fair trial considering
the totality of the circumstances of the incident, and more
particularly that the applicant’s
representative was not given
an opportunity to present testimony as to the “seriousness of
the offence and the reason why
both the third respondent and Thage
was subsequently dismissed and justifiably so”.
[6] According to the
applicant both Mogapi and Thage were senior employees with the third
respondent ranking in seniority over Thage
and that both were
dismissed as they were actively involved in the fighting and/or
assault [on one another I take it].
[7] Despite the
arbitrator having given the applicant’s representative an
undertaking that he will be allowed to present evidence
on these
issues [once again assuming that his evidence would have concerned
the applicant’s zero tolerance policy towards
the kind of
conduct displayed by the third respondent].
[8] Counsel appearing for
the applicant referred me to various passages in the transcript of
the arbitration proceedings relating
to the arbitrator’s
undertaking and the applicant’s representative’s repeated
request to testify with regard
to the issues mentioned in paragraph
7. These passages certainly confirm the issue under questioning.
[9] The fact of the
matter is however that the arbitrator found that the third
respondent’s involvement in pushing the applicant
was merely
designed to ‘averting further blows from Thage’. Should
this finding turn out to be a decision which a reasonable
decision
maker could reach, then clearly any complaint about the applicant’s
representative not having been given an opportunity
to testify
concerning the seriousness of the offence, the reason why both the
third respondent and Thage was subsequently dismissed,
and any matter
related to a policy of zero tolerance are of no consequence. This is,
however, not to say that arbitrators act appropriately
when they
deliberately ignore a request that further evidence be led without
considering the possible relevance of the intended
testimony,
especially after such an undertaking was given. If circumstances such
as these crop up in argument before the arbitrator
he should at least
deal and answer such an argument which may go a long way in
preventing unnecessary review applications. Arbitrators
should by now
begin to understand that they need to answer and indulge parties
before them on matters raised in arguments lest
it be found that
they did not properly apply their minds in reaching, and very often,
far reaching decisions.
[10] The second attack on
the award concerns the arbitrator ignoring the fact that it was the
third respondent who went to Thage’s
office to confront him in
full view and in the presence of other junior officials. It is
obvious from the award that the arbitrator
ignored this important
fact which may well have led him to come to a different conclusion
insofar as the period of retrospective
reinstatement of the third
respondent is concerned. One may well understand the need of the
third respondent wanting to confront
Thage concerning the rumours
passed on to the third respondent. Was it, however, reasonable for
him to do so during working hours
and in the presence of other junior
officials, and especially considering the senior position which he
occupies in relation to
the entire workforce. In the above regard the
evidence of de Jager (applicant’s representative at the
arbitration) may very
well have been of some significance. To this
extent the arbitrator’s failure to abide his undertaking,
coupled with de Jager’s
repeated requests and inquiries to
present his evidence precluded the applicant from having a proper and
fair trial. That such
is an obligation placed on an arbitrator is
unambiguously set out in section 194(1) of the LRA.
[11] If the third
respondent dealt with the above aspect and concluded that he found
the respondent’s conduct in this regard
as of no consequence
for whatever reason(s), his conclusion on this aspect may very well
have been a conclusion which a reasonable
decision-maker could have
reached. Neither the applicant nor this court is privy to the
reason(s) why he chose to ignore this particular
aspect.
[12] Other than the
aspect dealt with above, and after having perused the transcript,
coupled with the arbitrator’s conclusions
on the evidence, I
see no reason to conclude that the decision made by the arbitrator
that the dismissal of the third respondent
was unfair should be
interfered with on the principals enunciated by both parties during
argument.
In the premises the
following order is made;
The award insofar as it
was found that the third respondent’s dismissal was unfair is
confirmed.
The relief granted by
reinstating the third respondent retrospectively for a period of
twelve months is set aside and is remitted
to the second respondent
for consideration
de novo.
I believe that this is
not a case where an order for costs should be made in view of both
parties being partially successful.
_______________________
LOUW AJ
Appearances
For
the Applicant: Advocate L. Erasmus
Instructed
by: Du Randt Attorneys
For
the Respondent: D. Cartwright of D. Cartwright Attorneys