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[2011] ZALCCT 71
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National Union Of Mineworkers obo Benjamin v CCMA and Others (C10/2010) [2011] ZALCCT 71 (5 July 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO. C10/2010
In
the matter between:
NATIONAL
UNION OF
MINEWORKERS
obo
BENJAMIN
GERHARDUS
JONATHON
Applicant
And
CCMA 1
st
Respondent
Commisisoner
Hendrik
Olifant 2
nd
Respondent
SISHEN
MINE
3
rd
Respondent
Date of
Hearing:
10 March 2011
Date of
Judgment:
05 July 2011
JUDGMENT
GUSH, J.
·
The applicants in this matter apply to review
and have set aside the arbitration award made by the second
respondent in which award
the second respondent found that the
dismissal of the second applicant was substantively fair.
·
The second applicant was employed by the third
respondent as a plant operator on 1 January 2007 and dismissed by the
third respondent
on 21 September 2009 pursuant to a disciplinary
enquiry.
·
The background to the second applicant’s
dismissal is as follows:
·
On 22 August 2009 the second applicant was on
duty at the third respondent’s premises. According to the
second applicant
the foreman had approached him and given him his
soap and coffee ration after which the second applicant decided to
leave work.
He indicated that he needed to find a bag in which to put
the items the foremen had given him and had come across a packet
containing
a spotlight, a rivet gun, a box of rivets and a roll of
insulation tape. His own explanation was that he had looked inside
the
bag and had seen what it contained but despite this put his
coffee and soap in the bag and took the bag and its contents with him
to the gate. “
Dieselfde tyd het my
voorman nou vir my seep en koffee gebring. Okay so… nou wil ek
met die goed loop… ek kyk wat
is daarin en dan kom ek toe mos
nou op goed af wat in die sakkie, maar so vat ek sommer maar my
koffee en ek steek dit in die sak.
Okay so loop ek dan…”
·
The second applicant having proceeded to the
gate but before he had left the premise was approached by the
security personal on
duty at the gate. The third respondent's
security staff were conducting searches of employees leaving the
premises.
·
The second applicant had approached the gate
but had stopped short of the gate close to the turnstiles. When the
second applicant
didn’t proceed through the gate the security
personnel approached by who indicated him and indicated that they
wished to
search him.
·
The applicant in response had indicated that
he wished to return to the to the mine premises in order to make a
telephone call.
The security personnel offered him the use of the
telephone at the gate and advised the second applicant that they were
required
to search him first before he went back to the mine
premises.
·
The security personnel explained that on
searching the second applicant they found him to be in possession of
the plastic bag. The
second applicant explained that the bag
contained soap tea and coffee. The security guards explained that the
second applicant
was reluctant to be searched and was adamant that he
wanted to return to the mine premises from the gate with the plastic
bag.
·
The security guards insisted in searching the
second applicant and his plastic bag. The security guards opened the
bag and found
that it contained in addition to the soap tea and
coffee, the spotlight, rivet gun, the box of rivets and the roll of
insulation
tape. The second applicant was unable to produce any
documentation authorizing him to be in possession of the goods in
question
viz the spotlight, rivet gun, the box of rivets and the roll
of insulation tape. The second applicant on being questioned told the
security personnel about the soap tea and coffee but did not mention
the spotlight, spotlight rivet gun rivets or insulation tape.
1.
The second applicant was charged with
misconduct described in the notice of the disciplinary hearing as
follows:
“
DIEFSTAL:
Goedere en gereedskap word in person se besit gekry sonder ‘n
wettige hek vrystelling”
The third
respondent found the second applicant guilty of the misconduct as
charged and dismissed him.
1.
The second applicant referred a dispute to the
first respondent claiming that his dismissal was substantively
unfair.
1.
The dispute was arbitrated by the second
respondent who found that the second applicant had intended to remove
the equipment that
the second applicant was aware of the rule he was
found guilty of contravening that the rule was reasonable and that
the second
applicant was guilty as charged. The second respondent
further concluded that the second applicant’s misconduct
displayed
an element of dishonesty and accordingly in the light of
the evidence adduced by the third respondent dismissal was the
appropriate
sanction.
1.
In the founding affidavit the applicants aver
that the second respondent “
committed
certain gross irregularities
” and
“
came to a conclusion to which no
reasonable arbitrator could come
”
and that accordingly that the award should be set aside.
1.
The applicant's grounds of review are listed
as follows:
·
“
The arbitrator misconstrued either
the charge and/or the nature of the misconduct involved
”;
·
The third respondent had not established the
breakdown of the employment relationship; and
·
The existence of the rule had not been
established.
1.
In the supplementary affidavit filed by the
applicants the applicants a further ground of review that the charge
was not supported
by the evidence.
1.
It is trite that there is no appeal against an
award arbitration of a commissioner in. The court may only interfere
with an award
if it believes that there is a defect in the award in
that the commissioner committed misconduct in relation to his duties
as an
arbitrator; committed a gross irregularity in the conduct of
the arbitration proceedings or exceeded his powers as a commissioner.
An award may also be set aside if the award is one that “ a
reasonable decision make could not reach”
1.
Even if the court believes that the decision
is wrong it is not entitled to review and set aside the award unless
it is shown that
it is an award that a reasonable decision make could
not reach or that there is a defect in the award as set out in the
LRA.
1.
The second respondent’s award is
reasoned, reasonable, lawful and procedurally fair. He has carefully
analysed the evidence
and has considered the probabilities of the
evidence placed before him.
1.
The second respondent in analysing the
evidence concluded that the second applicant had intended to remove
the items despite the
submissions made on his behalf that the second
applicant was apprehended before he had left the premises. The second
respondent
found further that the second applicant had attempted to
avoid being searched. Based on the evidence set out in the record of
the
arbitration these conclusions are entirely reasonable and
justified.
1.
The second respondent went on to consider
whether or not the second applicant was aware of the rule he had
transgressed, whether
the rule was reasonable and whether dismissal
was the appropriate sanction. He concluded that the applicant was
aware of the rule,
that it was reasonable and that dismissal was the
appropriate sanction given the seriousness of the misconduct and that
it involved
dishonesty.
1.
In considering whether the second respondent’s
award is reviewable as opposed to being appealable in the light of
the evidence
placed before the second respondent and the applicants’
grounds of review, it is necessary to take into account what was held
in Edcon v Pillemer and Rustenburg Platinum Mines Ltd v
Commission for Conciliation, Mediation and Arbitration respectively
viz:
Reduced
to its bare essentials, the standard of review articulated by the
Constitutional Court is whether the award is one that
a reasonable
decision maker could arrive at considering the material placed before
him.”
And
Review
for reasonableness, as explained by Professor Hoexter, does threaten
the distinction between review and appeal. The Labour
Court in
reviewing the awards of commissioners inevitably deals with the
merits of the matter. This does tend to blur the distinction
between
appeal and review. She points out that it does so in the limited
sense that it necessarily entails scrutiny of the merits
of
administrative decisions. She states that the danger lies, not in
careful scrutiny, but in “judicial overzealousness in
setting
aside administrative decisions that do not coincide with the judge’s
own opinions”. This Court in Bato Star
recognized that danger.
A judge’s task is to ensure that the decisions taken by
administrative agencies fall within the bounds
of reasonableness as
required by the Constitution.”
1.
I am not satisfied that the award of the
second respondent is an award which can be said to be a decision that
“
a reasonable decision maker could arrive at
considering the material placed before [her].”
1.
In the circumstances I make the following
order:
·
The applicants’ application is
dismissed;
·
There is no order as to costs.
_____________
GUSH J
Appearances:
For the
Applicants: N
Cloete, Neville Cloete Attorneys Inc.
For the
3
rd
Respondent:
P. A. Koeberg,