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[2011] ZALCJHB 161
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Nkala and Others v Kruger and Others (JR 568/2010) [2011] ZALCJHB 161 (22 November 2011)
Not
Reportable
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case Number: JR 568/2010
In the matter between:
NKALA AND FOUR OTHERS Applicants
and
COMMISSIONER W
KRUGER First R
espondent
CCMA Second Respondent
WOOLWORTHS (PTY) LTD Third
Respondent
Heard:
7 November 2011
Delivered: 22 November 2011
Summary:
application for leave to appeal against judgment and order
JUDGMENT- LEAVE TO APPEAL
MOSHOANA AJ
Introduction
[1] This is an opposed application for
leave to appeal against the judgment and order of this Court issued
on 27 September 2011.
The parties filed written submissions in terms
of Rule 30 of the Rules of this Court.
Grounds.
[2] The third respondent contends that
this Court erred by misconstruing the test on review. Further the
Court erred by finding
that versions were not rejected when such was
done. There was evidence supporting the absence of the second list.
There was a resolution
of the dispute by rejecting the version of the
applicants. There was evidence supporting a conclusion that the
applicants are guilty
of insubordination. It is unfair to reinstate
Mashiane. It is not the case that the first respondent misconstrued
the
onus
issue.
The test
[3] It is now trite that in
applications of this nature, the test is that of reasonable
possibility of another court coming to a
different conclusion. In
assessing that the court seized which such an application should take
into account the facts and the law.
Grounds considered
.
The applicable test on review.
[4] It is by now settled law that the
test is that of a reasonable decision maker. The grounds as set out
in section 145 of the
LRA are not discarded but suffused. Recently
the Supreme Court of Appeal in an unreported judgment of
NUM
and Another v Samancor Limited and Others Case 625/10 delivered on 25
May 2011
had emphasised the
importance of the material before a decision maker to determine the
reasonableness of the decision subjected
to a review. It
axiomatically follows that any decision that is at odds with the
material before a decision maker is unreasonable
and ought to be set
aside. This will be the test to be applied by another court should
leave to appeal be granted. The submission
that this Court applied
the correctness test is simply not correct. The conclusion that the
‘dismissal was indeed unfair
and should have been declared as
such’ has nothing to do with the correctness of the decision
but with the outcome a reasonable
commissioner would have arrived at
given the material before him or her. Accordingly, there exists no
reasonable possibility that
another court would come to the
conclusion that a wrong review test was applied.
Versions not rejected when in fact
they were.
[5] The Court’s finding in this
regard relates to a conclusion that the applicants
could
not explain
why out of 36
employees they were the only ones not booked and why each and every
one of the other employees either attended or
made prior
arrangements. The material placed before the first respondent
revealed an explanation. Therefore, the Court was simply
stating that
it is improper to say there was no explanation when there was one.
The first respondent as a decision maker was expected
to either
accept the explanation or reject same. Accordingly, there is no
reasonable possibility that another court may come to
a different
conclusion.
Evidence supporting the absence of
the second list
.
[6] This issue of the second list is
clearly not material at all. It does seem that there was a clear
misunderstanding of what the
cross-examiner was referring to. The
evidence of Van Der Walt alludes to lists being placed on the notice
board. Two lists (MR
and SR) were introduced and formed part of the
arbitration record. In argument before this Court, there was no
indication that
there was only one list. In fact the transcript
reveals that during the cross-examination of Smit a version regarding
the MR list
and another list was put to which Smit testified that he
was not aware of. With that debate in cross-examination, the first
respondent
concluded that he will decide that issue later. However,
the true and real dispute was whether an instruction to count stock
was
given and was not followed. Even if the court were to accept that
there was one list in the face of the evidence of Van Der Walt,
the
question whether the applicants were given instruction and failed to
follow them would have remained for determination. In
short, the
issue of the existence or non-existence of the list is not material
to the outcome. Accordingly, there is no reasonable
possibility that
another court may come to a different conclusion.
Resolution of the dispute
[7] The evidence of Van Der Walt
revealed that there was a common practice that employees stay until
the last customer left. This
practice was aimed at contradicting the
booking times as set out in the MR and SR list. The existence of such
a common practice
was placed in serious dispute. Smit testified that
in one meeting where he remembers the applicants were present except
one who
was on sick leave an instruction was issued by him to work on
stock take until it is finished. Such evidence was disputed. Clearly
these two issues of instructions and the common practice were
critical to the determination of the alleged misconduct of
insubordination.
Nowhere in the award does the second respondent
resolves this dispute. In
Maepe
v CCMA and Others,
1
the LAC found that failure to deal
with critical issues is misconduct. That is what this Court found.
Accordingly, there is no reasonable
possibility that another court
may come to a different conclusion.
Evidence to support guilt
[8] It is of critical importance to
consider what the allegations of misconduct were; that being the
reason why the applicants were
dismissed. It seems to be the third
respondent’s approach that because one or two witnesses said
one thing or another such
should be accepted without considering the
other competing evidence. It is the duty of a commissioner to assess
the evidence and
to arrive at a conclusion. The assessment simply
entails taking into account all the evidence and draw conclusions
consistent with
such evidence. Therefore any attempt to refer to
pockets of evidence in order to substantiate a submission is not
helpful. In
Sidumo
,
the court mentioned that it is inappropriate for a commissioner to
leave the reviewing court guessing. Nowhere in his award does
the
commissioner foreshadow any of the evidence flashed out by the third
respondent in this application. One of the factors to
be considered
in dealing with insubordination as misconduct is clarity of
instructions. The applicants’ version was that
they worked
according to the allocated times. That being the case, there is no
basis in fact or law that could sustain a conclusion
that they failed
to follow instructions to work on 11 May 2009 as alleged.
Accordingly, there is no reasonable possibility that
another court
may come to a different conclusion.
Unfair to reinstate Mashiane
[9] This ground is not altogether
clear. When this matter was argued, the submission was that Mashiane
has waived her right to be
employed. Now it seems the argument is
that this Court erred in converting re-employment to reinstatement
without finding that
the determination that Mashiane was not without
blame is unreasonable. In the first instance, this Court converted
nothing. In
terms of section 145(4), this Court is empowered to
determine the dispute once it sets aside an award for any ground in
law. This
Court found that grounds do exist to set aside the award.
Having done that, the Court had to determine the dispute if all the
material
is at hand for it to do so. Reinstatement is a primary
remedy for unfair dismissal unless the dismissal is only procedurally
unfair
or the dismissed employee does not wish to be reinstated.
Accordingly, there is no reasonable possibility of another court
coming
to a different conclusion.
No misconstruction of the onus
issue
[10] Paragraph 52 of the award is
clear. The 1
st
,
2
nd
and
4
th
applicants did not prove that their
dismissal were unfair. Clearly this reflects that the first
respondent awaited the applicants
to prove that their dismissals were
unfair. Clearly this is in direct conflict with the provisions of
section 192 of the LRA. Accordingly,
there is no reasonable
possibility of another court coming to a different conclusion.
Conclusion
[11] Having considered the grounds of
this application, I come to the conclusion that
the
application for leave to appeal is dismissed with no order as to
costs.
____________________________
G. N MOSHOANA
Acting Judge of the Labour Court
APPEARANCES
FOR THE APPLICANT: Mr Khoza
of
RAWU, Pretoria
FOR THE THIRD RESPONDENTS: Attorney H
Schensema Of Macgregor Erasmus, Durban.
1
[2008]
8 BLLR 523
(LAC).