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[2011] ZALCD 32
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Toyota Boshuku (Pty) Ltd v NUMSA and Others (D293/09) [2011] ZALCD 32 (25 May 2011)
LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
Case: D293/09
In the matter between:
TOYOTA BOSHOKU (PTY) LTD
.............................................................................
Applicant
and
NUMSA
.............................................................................................................
First
Respondent
VUYO NTONJANA
.....................................................................................
Second
Respondent
SUNGAREE PATHER (
N.O
.)
.......................................................................
Third
Respondent
DISPUTE RESOLUTION CENTRE OF
THE MOTOR INDUSTRY BARGAINING COUNCIL
..........................
Fourth
Respondent
JUDGMENT
LAGRANGE, J:
Introduction
The employer party in this matter ('Toyota') has
applied to set aside an arbitration award issued in favour of the
second respondent,
Mr Ntonjana a former employee and union shop
steward.
Ntonjana was dismissed on 19 October 2007 after being
found guilty of four charges arising from a series of connected
incidents
on 17 October 2007. The charges he was found guilty of
were as follows:
Leaving his workstation without permission;
Gross insubordination in that he deliberately refused
to leave the meeting to which he had not been invited;
Intimidation and threatening behaviour by threatening
to stop the production line;, and
Gross disrespect in that he shouted at a manager in
the presence of subordinates.
Without attempting to narrate every detail of the
factual context in which the charges occurred, a summary of events
is useful
to contextualise the areas of dispute. The employer's
position in brief is that Ntonjana left his workstation without
obtaining
the necessary permission from his team leader and
proceeded to interrupt a production meeting being conducted by his
group
leader, Ms Govender. He asked to speak to her as a matter of
urgency but she advised him that she was busy and would do so when
she was available. Govender attempted to carry on with the meeting
with team leaders and moved the meeting to another work
area but
the applicant followed them and would not leave. Ntonjana insisted
that Govender speak to him and threatened to interrupt
production
if she did not do so. He was shouting at Govender and had to be
asked to calm down by another team leader who was
present at the
meetinGovender. Ntonjana allegedly also said that Govender did not
deserve her position and people in her department
were not
"children".
While there is some commonality between the employer's
version of events and that of Ntonjana there are a number of
factual
disputes. Ntonjana’s case is essentially that another
union member Mr Clement Arjoona was facing imminent possible
disciplinary
action at the hands of Govender and required his
assistance. The meeting he attempted to intervene in was in fact a
meeting
convened for that purpose between Govender and Arjoona.
Govender refused to allow him to participate in a discussion with
Arjoona,and
he waited until Arjoona and Govender had finished a
discussion. Govender asked him what he wanted in her department and
when
he explained that he wanted to speak to her about Arjoona’s
situation, her response was that the matter between her and
Arjoona
was a personal one and did not concern him. Ntonjana claims he had
not left his workplace unattended, but when he could
not find his
team leader to request permission to leave his workstation he asked
another employee to attend to it while he
was gone. He said this
was normal practice when an employee left the workstation. He
denied that he had spoken loudly or harshly
to Govender, but stated
that he may have raised his voice in order to be heard above the
noise of the workplace.
The arbitrator's award
The arbitrator found that the evidence did not support
a finding that Ntonjana was grossly insubordinate, that he
intimidated
Govender or anyone else, or that he was grossly
disrespectful. While not expressly finding that Ntonjana had
permission to
leave his workplace the arbitrator found that he did
not leave his workstation in the sense of simply abandoning it but
did
so for a legitimate reason and for a brief period.
Consequently, the arbitrator found that he had been unfairly
dismissed because
no fair reason existed to justify his dismissal.
In finding that Ntonjana was not guilty of the first
three charges, the arbitrator made an important probability
findinGovender.
She found that the evidence of Govender should be
rejected as improbable and Ntonjana’s evidence supported by
that of
Arjoona was to be preferred as being reasonable and
probably true. She reached this conclusion based on two subsidiary
findings
of fact. Firstly, the arbitrator held that it was
improbable that Govender would have been so upset by Ntonjana's
presence
if she had simply been having a production meeting at the
time he approached her. The arbitrator put it thus:
"Her [Govender’s] own evidence was that the
discussion had not been about Clement -this at a time in the
evidence when
neither party had even mentioned the name ‘Clement’.
Even if, as she testified, the meeting was a ‘private’
matter with Team Leaders, nothing could have been so private so as
to cause tempers to rise merely because the applicant was
present.
He was, after all, a colleague, even if from another department.
From her own evidence too, it is clear that the situation
was tense;
the applicants mere presence and refusal to move away from her
"private discussion" so disturbed that she
accused him of
being arrogant. It is probable even [on] her evidence, that there
was an underlying reason for the tension between
her and the
applicant. Based on the applicant’s evidence which Clement
corroborated, the reason for the tension was that
in his capacity as
shop steward, he had attempted to support a fellow employee who was
at the time in difficulty with his supervisor.
It is clear that
Govender felt that the applicant was attempting to undermine her
authority and for this reason, refused to allow
him to participate
in the discussion."
The second basis for the arbitrator disbelieving
Govender’s version is that she found the reasons advanced by
Ntonjana
and Arjoona to explain why she might have falsely accused
Ntonjana were probable. The supposed motive of Govender was her own
wrongful treatment of Arjoona. In order to deflect attention away
from her own misconduct she falsely implicated Ntonjana.
Grounds of review
The applicant’s grounds of review in the main
attack the reasonableness of the arbitrator’s findings. The
applicant’s
other ground of review is that the arbitrator
allowed the employee's representative to cross-examine company
witnesses after
they had already been re-examined, which it claims
constituted an irregularity in the proceedings.
Attack on reasonableness
The first finding attacked by the applicant is the
arbitrator’s conclusion that Ntonjana did not abandon his
post but
left it for a legitimate reason. The applicant says that
in arriving at this finding the arbitrator ignored the unchallenged
evidence of Mr Mkhize that employees can only leave their place of
work if authorised to do so "in matters of life and
death."
The applicant contends that there was no evidence to support a
finding that Ntonjana's desire to speak to Govender
was
sufficiently urgent to justify him leaving his workstation without
permission.
The applicant also contends that the arbitrator’s
finding that the reason for the tension between Govender and
Ntonjana
lay in him challenging her authority in the performance of
his duties as a shop steward, was also a finding that cannot be
supported by evidence. The applicant argues that there was no
evidence that Govender would have felt her authority undermined
simply because Ntonjana was attempting to represent his member.
In relation to the events of the interrupted meeting,
the applicant argues that the arbitrator failed to weigh up the two
versions
properly in the context of the circumstances. Stated thus,
this appears to be more like a ground of appeal than a ground of
review, but in support of its contention, the applicant claims that
the arbitrator simply failed to have regard to certain evidence,
and that she misconstrued the evidence before her. These grounds of
review are better expressed in the applicant’s founding
and
supplementary and affidavits.
The first important piece of evidence which the
applicant claims the arbitrator misconstrued was the nature of the
"private"
meeting that Ntonjana interrupted. The
applicant claims that there was no evidence to dispute the
applicant’s version
that the meeting was a normal production
meeting held at the start of the nightshift, and was not an
investigative meeting
prior to an enquiry involving Arjoona.
Although it is true that Govender said that she was
speaking with her team leaders, she also mentioned that when she
went to
the shop floor she called the respective team leaders and
the person that she was speaking to before, namely Arjoona, and
they
had a discussion in the back of the sewing area. Govender said
that she had been discussing Arjoona’s performance with him
before the second meeting was convened, but it is unclear why he
was still present in the so-called "production meeting"
if his performance was no longer a topic of discussion. Ntonjana
also testified that Arjoona told him of Govender’s complaint
about his (Arjoona’s) performance and that he was to meet
with Govender and his team leader. There was no evidence tendered
by the company identifying any of the other participants in the
meetinGovender. The only person who appears to have been in
close
proximity was Mr Simelane, a team leader, who intervened to calm
Ntonjana down. In fact when Ntonjana was cross-examined
it was put
to him that Govender had specifically told Ntonjana to go back
because she was having a meeting with Arjoona specifically
related
to his performance the previous night. Thus, even at an advanced
stage in the arbitration hearing, the company itself
was ambiguous
about the character of the meeting. In the circumstances, I think
it can be said on the basis of the evidence
that it was not
unequivocal that the meeting was a production meeting which did not
concern Arjoona. Consequently, I cannot
say that the arbitrator's
findings about the nature of the meeting were unreasonable.
It should also be mentioned that the applicant
criticises the arbitrator for failing to consider the probabilities
that Govender
would have conducted a disciplinary meeting in an
open factory without written notification. If this was an issue
which had
been prominently raised in the arbitration proceedings
such criticism might have some merit, but this appears to be an
afterthought
which the applicant is raising concerning an issue on
which it should have led evidence to highlight this issue. The
arbitrator
can hardly be criticised for not spotting something
which the applicant itself did not pertinently raise at the time.
A more serious criticism of the arbitrator’s
reasoning concerns what she failed to consider when she decided
that Govender
had falsely accused Ntonjana. There was ample
evidence that Ntonjana had become agitated in his interaction with
Govender.
Arjoona himself confirmed that the altercation was loud
enough to be heard by workers in the production lines nearby, and
also
conceded that Ntonjana’s remarks about how Govender was
‘given’ her position were uncalled for. It was also
common cause that at one point Mr Simelane, another team leader,
had seen fit to intervene to restrain Ntonjana and asked him
to
leave the area. The arbitrator fails to explain in her reasoning
why she did not find this evidence relevant in determining
whether
or not Ntonjana had been insubordinate.
The arbitrator simply does not address these
allegations of Ntonjana’s conduct directly, even though she
does accept that
matters got heated because she refers to tempers
rising and that the voices were raised during the exchange between
Ntonjana
and the group manager. However, because she decided to
determine the truth of the charges against Ntonjana by focusing on
Govender’s
motives for falsely implicating Ntonjana, it seems
that she have failed to consider the significance of this material
evidence,
which was largely common cause and clearly implicated
Ntonjana in confrontational and aggressive conduct towards
Govender.
The arbitrator should first have considered the overall
probabilities of the evidence in support of the charges before
embarking
on credibility findings. Had she done this, she would
have been more alive to the less contested portions of the evidence
in
respect of each charge and it is less likely she would have
failed to consider the significance of it.
It should also be mentioned in relation to the
arbitrator's finding that Govender reacted adversely to Ntonjana’s
attempts
to intercede on behalf of his member, that it was never
put to Govender that she was hostile to Ntonjana playing the role
of
shop steward nor was she confronted with the proposition that
she had a motive to fabricate evidence against him because she knew
she had not handled her complaint about Arjoona’s performance
properly. At the very least, this should have been put
to the
witness before the arbitrator could draw conclusions about
Govender’s motives for falsely implicating Ntonjana.
In
ascribing motives to Govender as a reason for disbelieving her
evidence, the arbitrator failed to have regard to the fact
that
these issues were not raised during Govender’s
cross-examination.
The applicant also takes issue with the arbitrator’s
effective finding that Ntonjana was not guilty of leaving his
workplace
without permission. In so doing, the applicant argues
that this conclusion fails to take account of the unchallenged
evidence
that Ntonjana was obliged to obtain permission before
leaving his workstation, that his group leader was only away from
his
workstation for a maximum of ten minutes, and that he could
have waited until his team leader returned to request such
permission.
On Ntonjana’ own evidence, he was only aware
that Arjoona had approached him on two occasions during the shift
for assistance
and that his intention in approaching Govender was
to ask if there was a problem or whether something needed to be
discussed.
The applicant submits that, on this basis, there was no
compelling urgency which required Ntonjana to leave his workplace.
If one examines the arbitrator’s reasoning on
this charge it is apparent that she did not distinguish between
whether
Ntonjana was guilty of the charge and whether he had a
justification which excused his transgression. Instead the two
issues
were rolled into one. In effect, the arbitrator found him
not guilty of the charge because he had acted responsibly in
leaving
his workplace without permission. While it might be so
that's Ntonjana’s conduct in leaving his workstation without
authorisation
might be regarded as less deserving of a sanction on
account of his reason for doing so, the enquiry into his motives is
something
that properly speaking should have been considered in the
course of determining an appropriate sanction
after
finding
that the transgression took place, rather than collapsing the two
issues into one.
The last material ground of review raised by the
applicant is the fact that the arbitrator allowed the employee's
representative
to pose further questions to Govender and Mkhize
after they had been re-examined by the employer's representative.
As a general
rule further cross examination of the witness should
not be permitted, but exceptions can be made, if for example new
issues
are raised in re-examination which cannot be said to arise
from the original cross examination. From the record it is clear
that during her evidence in chief, Govender was not asked about the
intimidatory character of Ntonjana's conduct towards her,
nor was
it canvassed during her cross examination. It was only when she was
re-examined that this aspect of the case was properly
dealt with. I
see nothing inappropriate in the circumstances in allowing the
employee's representative a further opportunity
for cross
examination, at least on this issue.
In the case of Mkhize, the employee’s
representative was allowed to conduct further cross examination of
him after he
was re-examined. However, the only issue which was
canvassed was how Mkhize claimed to have known that Ntonjana was
not acting
on behalf of Arjoona or at his request. His answer, in
essence, was that he was told this by other persons. As such, it
constituted
hearsay evidence and clearly did not affect the
arbitrator’s findings one way or another. Moreover, it
comprises less
than one page of the transcript of the oral
evidence. In the circumstances, it cannot be said that by
permitting these additional
questions that the applicant was
deprived of a fair hearing. It is also noteworthy that the
applicant’s representative
did not see anything objectionable
in this residual line of questioning at the time.
Conclusion
Although not all of the grounds of review raised by
the applicant are justified, there are some which do warrant
setting aside
important findings of the arbitrator. Above I have
discussed the problems with the arbitrator’s approach to the
fundamental
question of whether Ntonjana was guilty of charges by
focussing her attention on making a credibility finding. This led
her
to disregard important material evidence pointing to serious
misconduct on Ntonjana’s part. In the circumstances it cannot
be said that the arbitrator’s findings on whether or not
Ntonjana was guilty of the charges were reasonable, and her
failure
to consider the overall probabilities of the evidence meant that
she did not conduct a balanced evaluation of the evidence,
which in
turn denied the applicant a fair hearing.
1
It follows accordingly that the award must be set
aside.
Remedy
The difficulty this conclusion presents is whether or
not the matter should be reheard or whether this court should
substitute
its own decision for that of the arbitrator. Ntonjana
was dismissed on 19 October 2007. The arbitration award was only
issued
on 20 March 2009. Arjoona had already left the applicant’s
employment by the time the arbitration was conducted. The applicant
submits that the court should substitute its own decision for that
of the arbitrator in the event that the arbitrator's award
is set
aside. The respondent’s made no submissions on this question
in the event the review succeeds.
I believe that there is sufficient material on the
record at least to determine whether or not as a matter of
probability Ntonjana
was correctly found guilty of the misconduct
for which he was dismissed. Accordingly it is necessary to
reconsider the evidence
relating to the charges.
Was Ntonjana guilty of insubordination?
There was no real dispute that Govender did not want
Ntonjana to participate in the meeting. In her view, his presence
was not
required. He might have thought that she was about to issue
a warning to Arjoona and that he needed to intercede on his members
behalf, but once he had made his request and was denied permission
to participate, it is obvious he did not return to work
but
remained present even when Govender tried to move the meeting to
another location to avoid him. His constant presence at
the meeting
only ended when he was physically restrained by Simelane and asked
to leave.
He argued openly with the Govender, his group manager,
in front of other employees and would not abide by her instruction
to
leave her meeting. His own witness confirmed the altercation
could be heard by other workers on the nearby lines and that
Ntonjana
made an unacceptable remark about how Govender was
appointed to her position.
His conduct amounted to persistent and aggressive
defiance of the group manager’s authority in full view of
other subordinates.
It might not have been physically threatening
enough to have amounted to assault, even in the limited sense of
conveying an
impression of a threat of harm, but it was certainly
aggressive and beyond the bounds of acceptable levels of civil
interaction
between a shop steward performing their duty and their
superior given the context of what was at issue. Ntonjana was not
dealing
with a situation in which members were being asked to
perform dangerous work and were facing imminent danger. There was
at
best a possibility of Arjoona being issued with a warning and
there is no reason why an appeal could not have been lodged if this
happened or if he had been entitled to shop steward representation
before a warning could be issued. Although Ntonjana asserted
he was
motivated to act in his member’s interest, it was never
established or argued that Arjoona was entitled as a matter
of
right to shop steward representation even if only a warning was
contemplated.
In short, even on a benign interpretation of what
motivated his conduct, Ntonjana’s reaction was wholly
disproportionate
to the matter which he believed required his
attention. At the very least, he should have backed down once he
had registered
his concern, but he was intent on imposing his will
on the situation. As such I am satisfied on the record that he was
guilty
of a serious gross insubordination, which might justify his
dismissal.
Displaying disrespect
Regarding the last charge of showing disrespect to
Govender, I believe this should properly speaking have been an
alternative
charge to that of gross insubordination. Disrespectful
conduct was part and parcel of his insubordinate behaviour. To hold
him guilty of this as well as insubordination would amount to an
unfair splitting of charges.
Leaving his workstation without permission
As to the charge of leaving his workstation without
proper permission, there is no real dispute that he did not have
such authority
and he should have obtained it before leaving. The
central question is whether the persistent requests from his member
for
assistance and his perception that some kind of disciplinary
action might be in the offing was sufficient reason to justify him
leaving his workstation after arranging someone to keep an eye on
it. It could not really be disputed on the evidence that
permission
to leave one’s workstation was not readily granted. If
disciplinary action was taken against Arjoona without
Ntonjana
being present and if Arjoona had been entitled to representation in
any disciplinary matter, then good grounds for
appealing against
any warning improperly issued would have existed. There was no
evidence that Arjoona was facing a situation
where any adverse
disciplinary consequences could not be reversed by delayed action.
I accept that Ntonjana showed some degree
of responsibility in not
simply abandoning his workstation, but some disciplinary sanction
would still be warranted for this
misconduct, in my view.
Intimidatory or threatening behaviour
Even though a team leader physically restrained
Ntonjana, it does not seem that he actually threatened physical
violence against
Govender. The only evidence that he threatened to
stop production was given by Govender and there was no evidence to
show he
made any attempt to give effect to it. In any event, a
threat to stop production is not the same as threatening a person
with
physical harm and is not comparable to a threat of imminent
assault, which appears to have been the real concern underlying
this charge. For this reason, and for the reasons discussed above
regarding the nature of Ntonjana’s aggression towards
the
group leader, I do not think he was guilty of intimidatory conduct
in the sense that there was an implicit threat of violence
towards
Govender if she did not back down. There was also the uncontested
evidence that Ntonjana was not suspended immediately
after the
incident and did have some limited contact with Govender in the
course of work which did not give rise to any problems.
In so far
as a threat was made, it was a threat of wildcat strike action. It
may have had a coercive intention but such coercion
was of the
economic variety and did not involve a threat of personal injury. I
do not think this falls into the normal ambit
of what would be
described as intimidation. Accordingly, I do not find that Ntonjana
was guilty of intimidatory action or threatening
behaviour. The
aggressive character of his engagement with Govender has been dealt
with under the charge of gross insubordination.
Given that my findings of misconduct are not the same
as the employer’s, I think it would be unfair to both parties
for
the court simply ti pronounce on the fairness of the dismissal
or on any other appropriate sanctions without giving them an
opportunity to make representations and, if necessary, lead limited
evidence on the question of appropriate sanctions and remedies
in
the event it is found that Ntonjana’s dismissal for the
misconduct described was unfair. By so doing, it is not my
intention to suggest that the court has adopted a view on the
fairness of Ntonjana’s dismissal in the light of the proven
misconduct.
Order
In the light of the reasons above, the following order
is made:
The arbitrator’s award issued on 13 March 2009
under case number MIDB3526 is reviewed and set aside.
The arbitrator’s findings that the second
respondent was not guilty of the charges for which he was
dismissed are substituted
with the following findings for the
reasons stated in the body of this judgment:
The second respondent was guilty of serious gross
insubordination towards Govender;
The second respondent was guilty of leaving his
workstation without permission.
The matter is referred back to the fourth respondent,
which must set the matter down before an arbitrator other than the
third
respondent to determine if the dismissal of the second
respondent was substantively fair in the light of the substituted
findings of misconduct above and, if not, to determine an
appropriate remedy, including any alternative disciplinary
sanctions,
after considering this judgment, the evidence of the
record of the arbitration and any additional relevant evidence the
parties
might lead, or representations they wish to make on these
issues.
No order is made as to costs.
R
LAGRANGE, J
JUDGE
OF THE LABOUR COURT
Date
of hearing: 26 October 2010
Date of judgment: 25 May 2011
For the applicant: M G Maeso of Shepstone & Wylie
For the first and second respondents: P Naidoo of
Harkoo, Brijlal & Reddy Attorneys
1
In
this regard see
Southern Sun Hotel Interests (Pty) Ltd v
Commission for Conciliation, Mediation & Arbitration and others
(2010) 31
ILJ
452
,at 462, par
[20] and
Santam Bpk v Biddulph
2004 (5) SA 586
(SCA)
at 589, par [5], where the SCA held: “…
findings of credibility cannot be judged in isolation, but
require to be considered in the light of proven facts and the
probabilities
of the matter under consideration.
”