About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2012
>>
[2012] ZALCJHB 3
|
|
National Union of Mineworkers and Another v Commission for Conciliation Mediation and Arbitration and Others (JR 3125/09) [2012] ZALCJHB 3 (13 January 2012)
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN JOHANNESBURG)
CASE NO: JR 3125/09
In the matter between:
NATIONAL UNION OF MINEWORKERS
…...........................................
First
Applicant
ERIC NHLANHLA KHEWU
…...........................................................
Second
Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATIONN &
ARBITRATION
…................................................................................
First
Respondent
TERRANCE SERERO N.O.
…......................................................
Second
Respondent
PROTECH KHUTHELE (PTY) LTD
…..............................................
Third
Respondent
JUDGMENT
___________________________________________________________________
LALLIE AJ
Introduction
[1] The Applicants applied in terms of
Section 145 of the Labour Relations Act 66 of 1995 (the LRA) to
review and set aside an arbitration
award issued by the second
respondent under the auspices of the first respondent on 22 November
2009. The application was opposed
by the third respondent.
[2] The second applicant was employed
by the third respondent as a labourer from June 2006 until his
dismissal for misconduct on
2 October 2008. He challenged the
fairness of his dismissal at the first respondent. The second
respondent found his dismissal
substantively and procedurally fair.
It is the decision of the second respondent which the applicants seek
this court to review
and set aside. The applicants’ main
grounds for review are that the second respondent did not apply his
mind by rejecting
the applicant’s version. The applicants also
attacked the arbitration award on the basis that the commissioner
committed
misconduct by finding that the third respondent did not
have to clarify the charges it had preferred against the second
applicant
and further denied him of the right to be represented at
the disciplinary enquiry.
The arbitration award
[3] The second respondent was
presented with different versions of the events which led to the
second applicant’s dismissal.
The third respondent’s
version was that on the day in question the site foreman Mr Leopeng
(Leopeng) and site manager Mr
De Wet (De Wet) observed movement
inside a water pipe where the second applicant was performing his
duties. They shouted instructions
for the person inside the pipe to
come out. The second applicant ran out. De Wet tried to grab him. He
was unsuccessful but hurt
his hand in the process. When Leopeng and
De Wet went to look in the pipe they found pieces of copper cable. In
a statement the
second applicant was required to write on the
incident. He stated that he was smoking a cigarette in the pipe. He
later said that
he was smoking dagga. The third respondent then
preferred the following charges against the second applicant.
“
Under the
influence of intoxicating drugs at work on 26/09/2008.
Breach of employee’s duty of
good faith to the company on 26/09/2008
Gross insubordination whereby you
were called by the Site Agent and you did not respond
Unlawful possession of
Johannesburg Water property on 26/09/2008
As a result of you running away
the Site Agent’s hand was injured as you pulled away on
26/09/2008”
[4] The applicant’s version was
that while smoking a cigarette next to a steel pipe he was called by
De Wet. He did not hear
him. Leopeng called him and Brigado
(Brigado), a foreman, assaulted him. He decided to knock off and
left.
[5] The commissioner’s basis for
finding the second applicant’s dismissal substantively fair was
that the only reasonable
inference to be drawn from the second
applicant’s conduct was that he ran away after being caught
committing misconduct.
He found that it was probable that the second
applicant was smoking dagga and was responsible for the pieces of
copper cable found
inside the steel pipe.
[6] Concluding that the third
respondent cannot be faulted for dismissing the applicant for his
dishonest conduct, the commissioner
relied on the decisions in
Sappi
Novaboard (Pty) Ltd v Bolleurs
19 ILJ 784 (LAC
)
and
Central News Agency v CCMA and Another
(1991) 12 ILJ 340 (LAC)
where the Labour Appeal Court found that in employment law a premium
is placed on honesty because any conduct
involving moral turpitude by
employees damages the trust relationship on which the contract is
founded.
The test for review
[7] In
Bestel v Astral Operations
Ltd
[2011] 2 BLLR 129
(LAC) the Labour Appeal Court emphasised the
need for this court to maintain the distinction between an appeal and
a review as
follows:
“
It is
important to emphasise, as is exemplified from Carephone, and in
Schwartz, supra, that the ultimate principle upon which a
review is
based is justification for the decision as opposed to it being
considered to be correct by the reviewing court; that
is whatever
this Court might consider to be a better
decision is irrelevant to review
proceedings as opposed to an appeal. Thus, great care must be taken
to ensure that this distinction,
however difficult it is to always
maintain, is respected.”
[8] In
Sidumo and another v
Rustenberg Platinum Mines Ltd and others
[2007] 12 BLLR 1097
(CC)
the Constitutional Court found that a CCMA arbitration award will be
unreasonable and reviewable if it is a decision “
that a
reasonable decision-maker could not reach”
[9] Having referred to the
Sidumo
decision, the Court in
Edcon Ltd v Pillemer NO and others
[2010] 1 BLLR 1
(SCA) held as follows in paragraphs 15 and 16:
“
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.
It is therefore the reasonableness
of the award that becomes the focal point of the enquiry and in
determining this one focuses
not only on the conclusion arrived at
but also on the material that was before the commissioner when making
the award. It is remarkable
that the constitutional standard of
“reasonableness” propounded by the Constitutional Court
in Sidumo is conceptually
no different to what the LAC said in
Carephone. The only difference is the semantics – the LAC had
preferred “justifiability”
whilst the Constitutional
Court has preferred the term “reasonableness”.
Evaluation
[10] In reaching the decision that the
applicant’s dismissal was substantively fair the commissioner
considered the evidence
before him. He did not analyse the charges
which had been preferred against the applicant individually. He
instead dealt with them
collectively. He cannot be faulted for
adopting that approach because all the charges are based on a single
incident.
The commissioner’s power to make
decisions was acknowledge in the
Sidumo
case
supra
when
the court found as follows in paragraph 119:
“
To my
mind, having regard to the reasoning of the commissioner, based on
the material before him, it cannot be said that his conclusion
was
one that a reasonable decision-maker could not reach. This is one of
those cases where the decision-makers acting reasonably
may reach
different conclusions. The LRA has given that decision-making power
to a commissioner “
[11] The applicant’s argument
that the commissioner failed to apply his mind to the evidence before
him has no basis because
the commissioner gave reasons for rejecting
the applicant’s version. He therefore demonstrated that he took
his decision
after considering the evidence before him. In rejecting
the applicant’s version the commissioner noted that the
applicants
failed to dispute the third respondent’s evidence
that the second applicant was found inside the steel pipe, the
applicants
instead tried to argue that the second applicant’s
superior injured himself by trying to grab him as he ran out of the
pipe.
He further found that the second applicant provided a
contradictory account as to why he was found inside the steel pipe.
[12] The commissioner’s decision
on the substantive fairness of the second applicant’s dismissal
is rationally connect
to his reasons considering the material before
him. His decision on the substantive fairness of the applicant’s
dismissal
is not one that a reasonable decision-maker could not
reach. There are no grounds to interfere with it.
[13] I now turn to the commissioner’s
decision on the procedural fairness of the second applicant’s
dismissal. In his
award the commissioner noted that one of the
grounds cited by the applicants for alleging that the second
applicant’s dismissal
was unfair was that he was not even
allowed to have a representative at the disciplinary enquiry. He made
a negative comment on
the second applicant’s candour at the
arbitration which he found to be the cause of his inability to
provide an explanation
for the respondent’s failure to allow
him representation at the disciplinary enquiry. He found it
improbable that the second
applicant was denied representation
because he signed the notice outlining his rights.
[14] Section 188 of the LRA provides
that a dismissal which is not automatically unfair is unfair, if the
employer fails to prove
that the reason for the dismissal is fair and
that the dismissal was effected in a fair manner. It further requires
anyone considering
the fairness of a dismissal to take into account
the Code of Good Practice: Dismissal (the Code of Good Practice) in
schedule 8
of the LRA. Further, section 192 of the LRA places the
onus of proving the fairness of a dismissal on the employer.
[15] The commissioner adopted an
approach of requiring the applicant to prove the procedural
unfairness of his dismissal. That approach
is contrary to the
provisions of section 188 and 192 of the LRA. No evidence was led
before the commissioner to prove the procedural
fairness of the
second applicant’s dismissal. His decision that the applicant’s
dismissal was procedurally fair is
not supported by the evidence
before him. It constitutes a decision that a reasonable
decision-maker could not reach and stands
to be reviewed and set
aside.
[16] Having reviewed and set side the
commissioner’s finding that the second applicant’s
dismissal was procedurally
unfair, I have to decide whether to remit
the matter to the CCMA or to take the decision that the commissioner
should have taken.
The Court in
Shoprite Checkers (Pty) Ltd
v
CCMA
and others
[2007] 10 BLLR 917
(LAC) applied the
decision in
Traub
v
Administrator of Transvaal and others
(
1998) 10 ILJ 9 (T) and held that it had the power in cases such
as the one before it to make the decision which the tribunal whose
decision is on review should have made.
[17] Both the letter and spirit of the
LRA require expeditious resolution of disputes arising from the
relationship of employment.
The second applicant was dismissed on 2
October 2008. The commissioner correctly found his dismissal
substantively fair. All the
information that has to be considered in
determining the appropriate relief for the procedural unfairness of
the second applicant’s
dismissal is before me and I am
therefore in a position to take the decision the commissioner should
have taken.
[18] As the second applicant’s
dismissal was only procedurally unfair the appropriate relief to
grant him is compensation.
In determining compensation which is just
and equitable in all the circumstances I have considered his length
of service and the
fact that he made himself guilty of dismissible
misconduct. I find that compensation equivalent to remuneration the
second applicant
would have earned over a period of 2 months
calculated at the rate of his remuneration on the date of dismissal
will be fair and
equitable.
[19] In the premises, I make the
following order:
1. The arbitration award issued by the
second respondent on 22 November 2009 under case number JB31634/2008
is reviewed and set
aside and replaced with the following order:
(a) The second applicant’s
dismissal was substantively fair but procedurally unfair.
The third respondent is ordered to
pay the second applicant compensation equal to 2 months’
remuneration.
No order is made as to costs.
____________________
LALLIE
Date of hearing: 11 March 2011
Date of judgement: 13 January 2012
Appearances:
For Applicant: Adv I M Maunatlala
Instructed by: Makinta Attorneys
For Third Respondent
:
Mr Donald
Graham of
Donald
Grahamn Attorneys