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[2011] ZALCJHB 160
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BHP Billiton Klipspruit Colliery v NUM obo Dlamini and Others (JR650/10) [2011] ZALCJHB 160 (11 November 2011)
Not reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR
650/10
In the matter between:
BHP
BILLITON KLIPSPRUIT COLLIERY
........................................
Applicant
and
NUM
OBO DLAMINI ALEXANDER
.....................................
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
..................................
Second
Respondent
LUNGILE
MATSHAKA N.O
...............................................
Third
Respondent
Heard
:
3 November 2011
Delivered
:
11 November 2011
JUDGMENT
SAVAGE AJ
Introduction
This is an application to review and set aside an arbitration award
made by the third respondent (“the commissioner”)
on 11
December 2009 in which the dismissal of the first respondent (“Mr
Dlamini”) was found to be both procedurally
and substantively
unfair.
Mr Dlamini was found guilty of misconduct on 21 July 2009 following a
disciplinary hearing and was dismissed on 4 August 2009.
He referred
an unfair dismissal dispute to the CCMA which was arbitrated on 24
November 2009. The applicant was represented by
its Employee
Relations Specialist, Mr Molefe, at the arbitration hearing and Mr
Dlamini was represented by an official of NUM,
Mr Mabuza. Mr Molefe
was based at the applicant’s head office and had been an
observer at the disciplinary hearing. During
the arbitration, neither
party called any witnesses or presented evidence under oath. The
commissioner found that Mr Dlamini’s
dismissal was both
procedurally and substantively unfair and reinstated him into the
same or similar position with the same terms
and conditions of
employment as previously enjoyed. Mr Dlamini was to resume his duties
on 15 January 2010.
Arbitration award
The commissioner found:
“…
the
problem lies squarely with the Respondent in proving that the
dismissal of the Applicant was fair. This is mainly due to the
fact
that the Respondent has not brought in a single witness it had relied
on when it imposed the dismissal sanction
”.
The commissioner then concluded that evidence led should be the best
evidence and hearsay evidence would only be admissible in
exceptional
circumstances. He found that the applicant had not discharged the
onus to prove that Mr Dlamini’s dismissal was
procedurally and
substantively fair and recorded his difficulty in accepting the
applicant’s evidence given that it could
not be tested for its
veracity. The commissioner concluded that Mr Dlamini “is
therefore entitled to be reinstated but full
reinstatement is denied
partly because he is to blame for what led to his dismissal”.
Grounds of review
The applicant’s grounds of review can be summarised as follows:
The conclusion reached by the commissioner was not justifiable in
relation to the evidence led at the arbitration hearing; and
The commissioner erred in finding the dismissal substantively and
procedurally unfair while finding that Mr Dlamini was “partly
to blame for what led to his dismissal” without giving reasons
for such finding.
Evaluation
Once a dismissal has been established, the employer must prove that
the dismissal is fair in terms of sections 192(2) of the LRA.
In
determining whether the employer has discharged the onus to prove
that the dismissal was fair, the court must select the most
probable
inference and by “balancing probabilities select a conclusion
which seems to be the more natural, or plausible,
conclusion from
amongst several conceivable ones, even though that conclusion be not
the only reasonable one.” (Wigmore on
Evidence, (
3rd
ed. para 32). If this favours the employer,
on whom the onus rests, then the employer is
entitled to an award being made in its favour. If an inference in
favour of both parties
is equally possible, the onus of proof will
not have been discharged and the dismissal, it follows, will not be
found to be fair.
Section 138(1) of the LRA permits commissioners in the course of
arbitration proceedings to ‘deal with the substantial merits
of
the dispute with the minimum of legal formalities’. In
undertaking such task, a commissioner is entitled to ‘conduct
the arbitration in a manner that the commissioner considers
appropriate in order to determine the dispute fairly and quickly’.
Commissioners must however be guided by at least three
considerations: the resolution of the real dispute between the
parties;
as expeditiously as possible; and in a matter which is
fair.
1
An arbitration award stands to be set aside only if the award is
unsupported by any evidence, is based on speculation, is disconnected
from the evidence or is made without appropriate consideration of
evidence that may be considered unreasonable
2
.
The record of proceedings clearly indicates that no witnesses were
sworn in at the hearing of the matter and that the only oral
evidence
tendered by the applicant was that of Mr Molefe, the applicant’s
Employee Relations Specialist. This was in spite
of the fact that
there existed material disputes of fact between the parties relating
to the fairness of the dismissal of Mr Dlamini.
The applicant, a
large multinational company, chose to be represented at the
arbitration proceedings by Mr Molefe. It is not the
applicant’s
case that Mr Molefe was unaware as to the manner in which arbitration
proceedings before the CCMA are conducted
or that he had no
experience as to what was required of parties appearing at such
proceedings and I am satisfied that, given his
position, Mr Molefe
could reasonably have been expected to have known what was required
in order to present the applicant’s
case.
The approach adopted by Mr Molefe was to present the facts of the
case himself, without having been sworn in as a witness, apparently
on the basis that he had been an observer at the disciplinary hearing
and although he did not have direct knowledge of the misconduct
alleged to have been committed by Mr Dlamini. He called no further
witnesses and at no stage applied for a postponement in order
to
allow him to do so, even when asked by the commissioner why he did
not bring witnesses to testify
3
.
This Court is entitled to set aside an arbitration award if the
commissioner’s decision falls outside of a band of decisions
to
which a reasonable person could come on the available evidence (see
Sidumo & another v Rustenburg Platinum Mines Ltd &
others).
4
It is accordingly not the correctness of the commissioner’s
decision which is relevant but whether the result of the arbitration
proceedings is reasonable. I find that the decision of the
commissioner that the onus of proof had not been discharged was a
reasonable
one on the basis of the evidence available to him. The
applicant cannot fail to present material evidence before a
commissioner
but come to this Court in review proceedings and claim
that the error was that of the commissioner. This is all the more so
where
the applicant is a multinational company with experience in
labour matters. Were this Court to find differently, any applicant
could attend at arbitration proceedings, fail to present material
evidence relating to the dispute and then claim a reviewable
irregularity on the part of the commissioner in failing to call for
such evidence. This would serve only to undermine the current
dispute
resolution system.
This is not to say that it may, in fact, have been prudent for the
commissioner to call for evidence from witnesses with direct
knowledge of the alleged misconduct. However, for the reasons
canvassed above, I find that his failure to do so does not create
a
reviewable irregularity which warrants the review and setting aside
of the award.
The applicant’s further ground of review is that the
commissioner erred in finding the dismissal substantively and
procedurally
unfair while at the same time finding that Mr Dlamini
was “partly to blame for what led to his dismissal”
without giving
reasons for such finding. As a consequence of this
finding, the commissioner denied Mr Dlamini full reinstatement. I am
not satisfied
that this finding
was
material to the conclusion that the dismissal was procedurally and
substantively unfair. Its only effect was to limit full reinstatement
for Mr Dlamini, an issue with which he may have elected to take issue
but did not. Accordingly, the award does not justify being
reviewed
and set aside on this basis.
In the circumstances, I find
that the
conclusion reached by the commissioner was
justifiable in relation to the evidence before him and that the
arbitration award does
not fall outside of a band of decisions to
which a reasonable person could come on the available evidence. The
application to review
and set aside the arbitration award accordingly
must fail.
Costs
The court has a broad discretion, set out in section 162 of the LRA,
to make an order for costs according to the requirements of
the law
and fairness. The fact that the applicant has not been successful in
this application militates in favour of a costs order
in favour of
the first respondent. There are no reasons before me to suggest why
costs should not follow the result.
Order
Accordingly, I make the following order:
The application to review and set aside the arbitration award issued
under CCMA case number MP6877/09 is dismissed with costs.
_______________________
K M Savage
Acting Judge
APPEARANCES:
APPLICANT: J A Raubenheimer
THIRD RESPONDENT: L Malan
Instructed by Finger Phukubje Inc, Johannesburg.
1
CUSA
v Tao Ying Metal Industries & others
[2008] ZACC 15
;
2009 (1) BCLR 1.
2
See
A Myburgh ‘Sidumo v Rusplats: How the Courts deal with it’
(2009) 30 ILJ 1
3
Record
page 46 lines 5-7
4
[2007]
12 BLLR 1097
(CC)