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[2012] ZALCJHB 138
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Northam Platinum Mines v Commission for Conciliation Mediation and Arbitration and Others (JR 2401/06, JR 2599/06) [2012] ZALCJHB 138 (17 January 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case No: JR 2401/06
: JR 2599/06
In the matter between:
NORTHAM PLATINUM LTD
.....................................................................................
Applicant
and
COMMISION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
................................................................
First
Respondent
L BORMAN N.O
......................................................................................
Second
Respondent
NATONAL UNION OF
MINEWORKERS obo
KHUMELENI AND ANOTHER
....................................................................
Third
Respondent
Head: 02 December 2011
Delivered:
17
January 2012
Summary: Two review
applications. The one review relates to the merits of the arbitration
award and the other to the relief granted.
JUDGMENT
MOLAHLEHI J
This mater involves two
review applications. In the first application, the applicant being
Northam Platinum Limited (the applicant)
seeks to review and set
aside the arbitration award made by the second respondent (the
Commissioner) under case number LP6164-04
dated 10 August 2006. In
that case, the applicant seeks to review the decision of the
Commission ordering that the fourth respondents
be reinstated in
their respective employ. The second review, the National Union of
Mine Workers (second applicant) on behalf
of Mr Khumeleni and Mr
Poswa (the employees) seeks to review the same arbitration award on
the limited grounds related to the
relief granted to the employees.
In that review, the applicant seeks to review the decision of the
Commissioner for not reinstating
the employees after making a
finding of not guilty of the offences they were charged with. The
first applicant has also applied
for condonation for the late fling
of its review application. Without over burdening this judgment with
the details about late
filling of the review, I see no reason why
condonation should not be granted.
Grounds for review
The applicant contends
in its grounds for review in the first review application that the
arbitration award is reviewable because
the Commissioner exceeded
his powers, failed to apply his mind to the facts on the evidence
before him, acted grossly unreasonable
and unjustifiably in arriving
at the decision as he did.
In the second
application, the applicants (respondents in this matter) contend’s
that the arbitration is reviewable because
the Commissioner failed
to order reinstatement after finding that the employees were not
guilty of the offences they were charged
with.
The background facts
The background facts in
this matter are fairly common cause and are fully set out in the
Commissioner's arbitration award. I therefore
do not intend to
repeat them in any details in this judgment. Mr Nkhumeleni and
Phoswa were prior to their dismissals employed
by the first
applicant as special team leader development and stopping specialist
respectively. They were both charged and dismissed
for assaulting a
senior manager and insubordination.
It was alleged that on
the day in question the two employees assaulted their senior by
grabbing, pushing and pulling him around.
The version of the first
applicant is that on the day in question, Mr Badenhorst, who is
alleged to have been the victim of the
assault went with other
people to investigate a fire at a number of places at the workplace.
After investigating the first area,
they proceeded to the second
area. In order to access the second area, they had to pass the
control gate in order to enter the
shaft area. It is at this point
that the two employees are alleged to have pulled and pushed Mr
Badenhorst.
The employees in their
defence say that they did not assault Mr Badenhorst but on the day
in question, Mr Badenhorst together
with those he was with sought to
access the shaft as a group in contravention of the rule which the
employees had adopted on
their own to deal with people accessing the
shaft areas in the absence of the cage. The rule also provided that
only one person
would be allowed to go through the control gate at a
time. The employees say that the rule was introduced as part of
managing
and ensuring safety as there had previously been injuries
and deaths when more than one person went into the cage. They also
say others have accessed the shaft in order to commit suicide.
The Arbitration award
In as far as procedure
was concerned, the Commissioner found that a fair procedure was
followed in disciplining the employee.
As concerning substantive
fairness, the Commissioner made the following finding:
‘
In light of
the above, I am convinced that on a balance of probabilities a
skirmish took place between Badenhorst and the applicants.
This
resulted in a pushing and pulling from both sides. I am however of
the opinion that this matter could have been resolved at
the time if
both parties were not so hot headed. The applicants did react in a
disrespectful and insubordinate manner and could
have avoided the
incident. However, Badenhorst could have listened to Nkhumeleni for a
moment, he could have avoided the incident.
I feel that disciplinary
action short of dismissal would have been appropriate as per the
respondent's Disciplinary Procedure .
. .’
It is on the basis of
the above reasoning that the Commissioner ordered that the employees
should be reemployed.
Evaluation of the
first review
The issue which the
Commissioner had to determine in this matter during the arbitration
hearing was whether the employees were
guilty of assaulting Mr
Badenhorst. The question for determination in this judgment is
whether the Commissioner performed that
duty as would have been
expected by the law.
It is trite that
Commissioners in conducting arbitration proceedings have certain
duties to perform in terms of the law. In performing
those duties,
the Commissioners have very wide powers to determine the appropriate
manner in which the dispute is to be resolved.
In terms of section
138 of the LRA :
‘
The
commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the dispute
fairly and quickly, but must deal with the substantial merits of the
dispute with minimum legal formalities.’
The dispute which was
before the Commissioner in this matter concerned both the procedural
and substantive unfairness of the dismissal
of the employees. The
Commissioner found that the dismissals of the employees were
procedurally fair. This finding was not challenged.
The first
applicant has challenged the finding as concerning the substantive
fairness of the dismissal. The second applicant
challenges the
finding regarding the relief granted by the Commissioner.
I have earlier indicated
that the Commissioner has set out in details the evidence of the
various witnesses that testified during
the arbitration hearing in
the arbitration award. The question is whether that is enough to
insulate the arbitration award from
interference by the Court? In my
judgment that is not enough to satisfy the requirement of ‘dealing
with substantial merits.’
as provided for under section 138 of
the LRA.
One of the duties of a
Commissioner seating as an arbitrator is to find facts and not just
to elaborate on the evidence as presented
by the parties. In this
respect, the Commissioner has a duty to effect the intentions of the
legislature by determining the dispute
as defined by the parties. In
that respect, the Commissioner is required to make a clear, precise
and definitive finding as to
the issues in question. In the present
instance, the Commissioner was required to determine in a precise
and definitive manner
as to whether the employees were guilty of
assault.
Grogan in Workplace Law
(tenth edition) page 216, says assault is an unlawful and
intentional application of force to a person,
or threat that force
will be applied. The definition of assault is wide enough to include
touching a person even if such touching
does not result in any
injury of the affected person. Even the use of force to block the
path way of a superior could equal assault
and insubordination as it
undermines authority of management. Assault on a superior will
depend on the circumstances of a given
case and can be regarded as
serious insubordination. Assault of a superior negates respect of
the position of the senior due
to the position that he or she
occupies and is a manifestation of defiance and undermining of
authority.
It is generally accepted
that assault is a valid ground for dismissal. However, an employer
has to evaluate the circumstances
within which the assault is
alleged to have taken place before imposing the sanction of
dismissal. A defence put forward by an
employee accused on assault
or an explanation of the circumstances within which the assault took
place has to be taken into account
in considering the sanction to
impose.
In the present instance,
it is common cause that the reason for the dismissals of the
employees was because of the alleged assault
on the manager. The
enquiry which the Commissioner had to conduct was whether the
assault on the manager did as a matter of fact
take place. This
enquiry is conducted to determine the validity of the reason for the
dismissal. The Commissioner had to determine
whether the assault
took place by applying the facts before him to the definition of
assault. The facts are applied to the definition
in the context
where the employer bears the onus of proving that the dismissal was
for a fair reason.
If those accused of
assault are found to be innocent of the alleged assault then that
would be the end of the matter, in that
the reason for the dismissal
would be found to be invalid and therefore the dismissal would be
found to be unfair. Once assault
is established by applying the
facts of the particular matter to the definition of assault, the
next inquiry to be conducted
by the Commissioner is to determine
whether in the circumstances of that case dismissal as a sanction is
reasonable or fair.
Another important enquiry which the Commissioner
has to conduct is that of determining whether the trust relationship
between
the employer and the employee accused of assault has broken
down.
In
Edcon
Ltd v Pillemer NO and Others
,
1
the
Labour A appeal Court in dealing with issue of the breakdown in the
trust held per Mlambo JA that:
‘
In my view,
Pillemer's finding that Edcon had led no evidence showing the alleged
breakdown in the trust relationship is beyond
reproach. In the
absence of evidence showing the damage Edcon asserts in its trust
relationship with Reddy, the decision to dismiss
her was correctly
found to be unfair. She cannot be faulted on any basis and her
conclusion is clearly rationally connected to
the reasons she gave,
based on the material available to her. She did not stray from what
was expected of her in the execution
of her duties as a CCMA
arbitrator. The challenge, therefore, to Pillemer's award on this
basis is without merit. I have no hesitation
in concluding that the
award issued by her is properly compliant with the constitutional
standard of reasonableness propounded
in
Sidumo
.
This conclusion on its own is, in my view, dispositive of the appeal.
I find it unnecessary therefore, in view of this conclusion,
to
consider the other interesting point regarding the admissibility of
hearsay evidence, raised on behalf of Edcon.’
Turning to the facts of
the present matter, it is apparent from the reading of the
transcript of the arbitration hearing that
the Commissioner was
faced with two contradictory versions of both parties. On the one
hand, the applicant's version was that
Mr Badenhorst was assaulted
by the employees by pushing and pulling him when he sought access to
the shaft to investigate the
possibility of fire. The employees on
the other hand denied assaulting Mr Badenhorst and asserted that it
was Mr Badenhorst who
assaulted one of them when he approached him
to advice that the rule adopted by the employees was that no one was
allowed into
the shaft in the absence of the cage.
It is important to note
that Mr Badenhorst did not testify at the arbitration hearing. The
Commissioner seems to have accepted
the applicant's explanation that
he could not testify because he was no longer employed by it. It
should however be noted that
part of his statement which seem quite
critical was read into the record during the arbitration hearing.
That statement does
shed some light into what happened in as far as
Mr Badenhorst was concerned on that day. Whilst the statement of Mr
Badenhorst
is hearsay evidence, in properly applying the rules of
evidence, this evidence could have assisted in shading light into
some
aspect of this case in particular in relation to the
credibility of the evidence of the applicant’s witnesses. This
piece
of evidence would have gone a long way to assist in resolving
the conflicting versions.
In
the recent unpublished case of
The
Director General: Department of Public Works: Limpopo v Sello Jermia
Tselane,
2
this
Court summarised the approach to adopt when dealing with conflicting
versions as follows:
‘
It is trite
that when faced with two conflicting versions the enquiry which the
arbitrator has to conduct is that which was set
out in
Stellenbosch
Farmers' Winery Group Ltd. and Another v Martell & Kie SA and
Others.
The enquiry essentially entails assessing and making a finding on the
credibility of witnesses including the probabilities to determine
where the truth lies in the matter. It would seem to me that the key
aspect of this inquiry is whether the probabilities favour
the party
that bears the onus of proof. It is also important to note that
whilst the credibility of a witness is in an extricable
manner bound
to the consideration of the probabilities of the case, the arbitrator
should resort to credibility where the probabilities
fails to point
which version embraces the truth.’
In my view, there is
some doubt about the credibility of the witnesses of the applicant
which, had the Commissioner applied his
mind to the task at hand he
would have found that the applicant had failed to show that the
dismissals of the employees were
for a fair reason. I will however
not venture into making a definitive finding regarding the
credibility of witnesses as it is
generally accepted that the issue
of determining credibility is the competency of the trier of fact
and not the court seating
on review.
It should however be
pointed out that it is hard to belief the versions of Mr Mienaar and
Mr Qoali. Mr Mienaar was at the time
of the incident a senior
security officer. He testified that he stood by and watched as his
colleague was being assaulted. He
says he could not intervene as the
‘pulling and pushing’ was going on because he was afraid
that other employees
would join in the alleged fray. He appears to
have been a biased witness who sought to exaggerate what transpired
on the day
in question. In his statement which was used during the
disciplinary hearing, Mr Badenhorst said that one of the employees
grabbed
and as he pulled him away he hit an object which injured
him.
The same applies to Mr
Qoali who at the time of the incident was a team leader. He also
stood as a spectator during the assault
of his colleague. According
to him, the assault took place over a period of about five to six
minutes. The picture that he projected
in the same way as Mr Mienaar
is that of total chaos, frightening and everything being out of
control. However, they did nothing
even seeking assistance.
The testimony of Mr Bear
was also not helpful to the case of the applicant when properly
analysed. He testified that he did not
know the employees and could
not identify them with their faces but remembered that one had a
bigger body than the other.
Beside the issue of
resolving the conflicting versions, the two tasks which the
Commissioner ought to have applied his mind to
but failed to do so
were; whether there was a breakdown in the relationship between the
parties as a result of the alleged offence
and whether the sanction
imposed by the applicant was fair in the circumstances of this case.
There is no indication
in the record of this matter, that the applicant led evidence to
show that the relationship between the
parties had broken down as a
result of the incident in question. It was argued on behalf of the
applicant during the hearing
of this matter that it should be
inferred that there was a breakdown in the relationship. In my view,
there is no basis on the
facts and the circumstances of this case to
warrant such an inference.
Turning to the issue of
the fairness of the sanction, I am of the view that had the
Commissioner applied his mind to the facts
he would have come to the
conclusion that the sanction imposed was in the circumstances of
this case too harsh. In the first
instance, the version that the
employees did not know Mr Badenhorst and his position as a manager
was not challenged by the applicant.
Assuming that it was to be
found that they assaulted Mr Badenhorst as was alleged, then in the
facts as they stood they could
not be guilty of undermining the
authority of their senior. The uncontested evidence is there they
did not know who he was and
those who have assisted in the situation
stood by and did nothing They could therefore not have had the
intention to undermine
his authority in the absence of knowledge of
his position.
Conclusion
In my view, the precise
findings which the Commissioner ought to have made are whether the
employees were guilty of assault and
also whether they had the
intention to undermine activity of the manager. The failure to make
that clear pronouncement renders
the award of the Commissioner
reviewable. Although I do not make any determination as to the
credibility of the witnesses as
an aspect of resolving the
conflicting versions which would have necessitated remitting the
matter back the CCMA, I do not intend
remitting the matter back for
two reasons which are very apparent from the record. The reasons are
as indicated above the harshness
of the sanction and failure by the
applicant to prove that the relationship of trust has broken down as
a result of the alleged
assault.
In light of the above,
the arbitration award of the Commissioner stands to be reviewed set
side and substituted with an award
that the dismissals of the
employees were unfair and the relief should be reinstatement. There
is no evidence that the reinstatement
would be an inappropriate
relief.
It goes without saying
that the second review stands to succeed. I do not however belief
that costs should be awarded to any of
the parties.
Order
In the premised, the
following order is made:
The arbitration award
issued by the second respondent is reviewed and set aside.
The arbitration award
of the second respondent is substituted with the award that reads
as follows:
(a) The dismissals of the
applicants were unfair.
(b) The respondent is
ordered to reinstate the applicants in their employ retrospective to
the date of their dismissal without loss
of any benefit.
3. There is no order as
to costs.
________________
Molahlehi J
Judge of the Labour Court
of South Africa
APPEARANCES
:
FOR THE APPLICANT: Adv G
Scheepers instructed by Van Zyl Le Roux Attorneys
FOR THE RESPONDENT: Mr P
Motaung of Nomali Tshabalala Attorneys
1
[2009]
JOL 24333
(SCA);
[2010] 1 BLLR 1
(SCA) at para 23.
2
case
number JR 948/09 at para
See
Stellenbosch Farmers' Winery
Group Ltd. and Another v Martell & Kie and Others
2003 (1)
SA 11
(SCA) and
Westonaria Local Municipality v SALGBC and Others
[2010] 3 BLLR 342( LC).