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[2012] ZALCJHB 147
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Rustenburg Platinum Mines (Rustenburg Section) v Commission for Conciliation Mediation and Arbitration and Others (JR 882/09) [2012] ZALCJHB 147 (1 March 2012)
7
Not Reportable
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Case no. JR 882 - 09
In
the matter between:
RUSTENBURG
PLATINUM MINES
LIMITED
(RUSTENBURG SECTION)
...................................................................
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
...........................................................
First
Respondent
MUDAU
N.O
........................................................................................
Second
Respondent
UNITED
ASSOCIATION OF SOUTH AFRICA
.......................................
Third
Respondent
VAN DER MERWE PJ
..........................................................................
Fourth
Respondent
Heard: In chambers
Delivered: MARCH 2012
Summary: Application for leave to
appeal against a judgment in a review application. Application
dismissed.
________________________________________________________________
JUDGMENT
REDDY
AJ
Introduction
[1] This is an opposed application for
leave to appeal against the whole judgment handed down on 20
September 2011.
[2] The applicant raises five grounds
of appeal each of which I deal with in turn. I do not intend
repeating the factual issues
and grounds of review raised in the main
review application as these are comprehensively dealt with in the
main judgment.
The commissioner erred in
determining the appropriateness of sanction
[3] The applicant submits that the
commissioner did not have the power to determine the appropriateness
of the sanction after he
had found that the dismissal of the employee
was substantively unfair.
[4] The applicant’s main
submission in this regard is that the parties agreed in the
pre-arbitration minute that the commissioner
needed only to decide if
the employee had broken the rule and not whether the dismissal was
fair, as the parties had also agreed
that once the rule was broken,
it resulted in a dismissible offence.
[5] The applicant’s submission
ignores the notion that even if the rule was broken and a dismissible
offence resulted, it
is not axiomatic that a dismissal would be
justified, appropriate or fair. Paragraph five of the pre-arbitration
minute records
the agreement between the parties that the
commissioner is required to decide whether the employee was dismissed
fairly or not.
[6] Not only did this agreement
empower the commissioner to look into the appropriateness of the
sanction but the principle of fairness
dictated that he consider,
inter alia,
the consistent application of discipline, the
employee’s disciplinary record and whether the employment
relationship had irretrievably
broken down.
[7] The above issues are fully and
plainly dealt with in the judgment. Apart from repeating those
submissions made during the review
hearing, the applicant takes its
argument no further in its application for leave to appeal. In the
circumstances, I find that
there are no prospects of the Labour
Appeal Court arriving at a different conclusion to that reached by
me.
The commissioner erred in not
making a credibility finding against the employee
[8] The applicant submits that because
the employee changed his plea from guilty (in the disciplinary
hearing) to not guilty (in
the arbitration hearing) it amounted to
the employee’s version of events changing fundamentally. It
also repeats its submission
in the review hearing that the
commissioner ought to have made a credibility finding against the
employee for testifying that he
was misled into initially pleading
guilty.
[9] The commissioner found that the
employee was not misled into pleading guilty in the disciplinary
hearing. The applicant submits
in the application for leave to appeal
that the employee and his witness’s versions on this issue
differ. The applicant draws
a distinction between the employee’s
words that Mostert “told me to plead guilty” and the
employee’s witness’s
words that Mostert suggested that
the employee plead guilty. Apart from a denial by Mostert during the
arbitration hearing, this
distinction was not interrogated before the
commissioner by the applicant and it was not raised during the review
hearing. In any
event, the above words are not so materially distinct
so as to impugn the employee’s credibility, rather it confirms
the
employee’s belief that he would not have been dismissed had
he pleaded guilty in the internal hearing. The commissioner’s
finding that the employee was not misled to this effect leaves the
conclusion that the employee incorrectly relied on this belief
when
pleading guilty. The applicant has not submitted how a credibility
finding against the employee, in light of the evidence
that does not
justify a dismissal, would have resulted in the dismissal being fair.
[10] The employee’s change of
plea does not amount to a fundamentally changed version of events. A
plea is merely a response
by the employee to the question of whether
he admits or denies that he is guilty of the offence with which he is
charged. A plea
is not a version of events.
[11] The employee’s version of
events was that he was instructed to oversee three sites, he had not
given the instruction
for the workers to start working but merely to
enter the area and see if it was safe, he had not seen the misfires
as he had not
entered the area and he was at the other site when the
workers commenced the drilling.
[12] The applicant has not submitted
in its application for leave to appeal how the employee’s
factual version changed. In
the absence of such submission there is
no merit in the argument that the commissioner ought to have made a
credibility finding
against the employee. There is accordingly no
prospect of the Labour Appeal Court coming to a different conclusion
to that reached
by me.
Reliance on legislation
[13] The applicant submits that the
commissioner did not consider relevant legislation in terms of which
the employee was appointed
to the position in question.
[14] The applicant has not submitted
what impact the legislation had on the facts that were before the
commissioner. The undisputed
evidence by the employee that he was
instructed to oversee three sites on the day in question, he had not
given the instruction
to start drilling but merely for the workers to
inspect the area for safety, that he was at one of the other two
sites when the
workers commenced drilling, and that he ought not to
have been taken away from the site in question by those in authority.
Whilst
there may have been legal and safety imperatives for the
employee to remain at the site in question and complete his usual
duties,
the applicant has not submitted what the employee was
expected to do in the face of instructions to do just the opposite.
There
is very little reliance that an employer can place on
legislation, when its own instructions to an employee run counter to
the
applicable legal provisions. I accordingly find that the Labour
Appeal Court will not arrive at a different conclusion to that
reached by me.
Trust relationship
[15] The applicant’s submissions
in this regard do not take the issue any further than what was before
me at the review hearing.
There is no merit in the submissions made
by the applicant in this regard. I accordingly find that the Labour
Appeal Court will
not arrive at a different conclusion to that
reached by me.
Inconsistent application of
discipline
[16] The applicant submits that it was
agreed in the pre-arbitration agreement between the parties that
discipline was consistently
applied. It accordingly refers to
paragraph 3.11 of the minute which records that ‘Inconsistent
application of discipline
is not in dispute.’
[17] Apart from the above recording
implicitly indicating otherwise, that is that the parties agreed that
discipline was inconsistently
applied, the applicant has not
explained why it did not challenge the employee’s evidence that
discipline was not consistently
applied in the past.
[18] The applicant submits that it
would have led evidence in this regard had it been agreed between the
parties that this issue
was in dispute. Even if my interpretation of
paragraph 3.11 is incorrect and it was not disputed between the
parties that discipline
had been consistently applied, this became an
issue in dispute when the employee and his witness led evidence to
this effect. The
applicant could have placed on record before the
commissioner that this was not previously an issue between the
parties, but seeing
that it had become an issue, it would attempt to
cross-examine the two witnesses and apply to re-open its case should
the need
arise. The applicant did none of this and left the
employee’s version unchallenged.
[19] In the circumstances, the
commissioner correctly found that discipline had been inconsistently
applied. There is no prospect
of the Labour Appeal Court coming to a
different conclusion to that reached by me.
[20] In the circumstances, I make the
following Order:
1. The application for leave to appeal
is dismissed.
_______________________
Reddy AJ
Appearances:
NONE
APPEARANCES:
NONE