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[2012] ZALCJHB 173
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Mudau v Metal and Engineering Industries Bargaining Council and Others (JR3408/09) [2012] ZALCJHB 173; (2013) 34 ILJ 663 (LC) (29 July 2012)
11
REPUBLIC OF SOUTH AFRICA
In the labour court of South Africa
,
JOHANNESBURG
JUDGMENT
Reportable
Of interest to other judges
case
no: JR3408/09
In the matter between:
MOLAPI
BENJAMIN MUDAU
..........................................................................
Applicant
and
THE
METAL AND ENGENEERING
INDUSTRIES
BARGAINING COUNCIL
..............................................
First
Respondent
GERALDIN
DUNN N.O
..................................................................
Second
Respondent
BOMBELA
CIVIL VENTURE (Pty) Ltd
..............................................
Third
Respondent
MURRAY
& ROBERTS
CONSTRUCTION
(PTY) LTD
..........................................................
Fourth
Respondent
Heard
:
31 January 2012
Delivered
:
29 July 2012
Summary: Review section 188A of the LRA, arbitration award-
Commissioner committing gross irregularity and exceeding powers–
determining issues which were not before her. Award reviewed and set
aside.
judgment
MOLAHLEHI J
Introduction
This is an application to review and set aside the arbitration award
of the second respondent under case number CDR/ 9/378 dated
7
December 2009 in terms of which the second respondent found the
dismissal of the applicant to have been for a fair reason.
The arbitration proceedings were conducted in terms of section 188A
of the Labour relations Act of 1995 (the LRA).
1
Background facts
The background facts in this matter are fairly common cause. The
applicant who prior to his dismissal was employed as shutter
hand
grade one was dismissed for misconduct concerning the alleged
‘unauthorised removal of company property namely steel
and
selling it to a scrap metal dealer.’
The witness of the third and fourth respondents was Mr Bucha, the
site administrator who testified that he found an invoice from
a
recycling company indicating that the applicant had sold steel to
that company. He found the payment slip in one of a car belonging
to
the fourth respondent. He then went to the company to which the
scrap metal was sold to enquire as to the person who sold
the scrap
metal. His inquiry revealed that the applicant was involved in the
sale of the scrap metal in question. He further
testified that the
scrap metal which was sold weighed 620 kg.
The applicant testified that after cleaning at the workplace there
were some off cuts which could no longer be used. He further
stated
that their foreman indicated that he would speak to the site
engineer regarding the possibility of selling them to the
scrap
metal dealers and whatever comes out of the sale could be used for a
braai. According to him, their foreman informed them
that Mr
Melville, the site engineer, agreed that they could sell the off
cuts. The sale yielded over R700,00. The amount was
used for a braai
at the foreman’s home. Apparently the site engineer also
attended that braai.
During cross-examination, the applicant indicated that he did not
know why the braai was held at the foreman’s home and
not at
the workplace. He stated that the correct person to answer the
question was the foreman.
The applicant’s witness was Mr Davies who confirmed that the
site engineer had said that because they were cleaning the
site they
could take the scrap metal.
Grounds for review
The applicant in his grounds of review contends that the
Commissioner committed misconduct in relation to his duties as an
arbitrator and further that she committed gross irregularity in the
conduct of the arbitration proceedings. In relation to gross
irregularity, the applicant contended that the Commissioner
committed irregularity when she found that the applicant had
committed
an offence which is much more serious than the charge of
an authorised removal of the respondent property.
The commissioner’s award
The Commissioner in the arbitration award identified the issue she
was seized with as follows:
‘
Whether the employee is guilty of an
unauthorised removal of company property, namely steel and selling it
to scrap metal dealer
(Prime Recycling).’
After summarising the evidence of the respective witnesses, the
Commissioner in analysing the evidence found that on the basis
of
the receipt which had been placed before her, the applicant had
concluded the transaction of selling this deal for cash. She
further
found that this fact was not disputed by the applicant. The
Commissioner then stated that the issue for determination
was
whether the applicant had permission to remove the steel. In this
respect, the Commissioner found that
‘
The onus is on the employee to show that he
was authorised to remove the steel.’
The Commissioner noted that although the applicant had stated that
they were given permission to remove the steel, he conceded
during
cross-examination that the site engineer Mr Melvin, did not say how
they were to remove the steel. It would appear common
cause that the
steel was removed with the use of the third and fourth respondents'
vehicle. The Commissioner said that by implication
the applicant and
others did not have permission to use the third and fourth
respondents' vehicle.
The Commissioner then analysed the evidence of both applicant and
his witness and found that there were contradictions between
their
versions. The contradiction between the versions of the applicant
and his witness relates to the amount for which the scrap
metal was
sold for. According to the applicant’s witness, Mr Davies, the
scrap metal that he saw could be estimated at
a 100 kg whereas the
amounts sold was 620 kg. It was on this basis that the Commissioner
found that the version of the applicant
was improbable and
accordingly made the following finding:
‘
I therefore do not accept that the employee
had discharged the onus of proving that he had permission to remove
the steel.’
The above contradiction in the versions of the applicant and his
witness was found by the Commissioner to have been significant
and
according to her it clears the issue in dispute. She further found
that if permission to remove the steel was given, it would
then had
followed that permission to use the van would have been given.
The Commissioner concluded in the assessment of the substantive
fairness of the reason for the dismissal that the applicant was
guilty as charged because as she put it:
‘
I find that the employee failed to prove
that he was authorised to remove the 620 kilograms of steel from the
company premises.
On a balance of probabilities I find the employee
guilty as charged.’
Evaluation
The Commissioner was appointed in terms of section 188A of the LRA
to determine the fairness or otherwise of the dismissal of
the
applicant. Her mandate was to determine whether the applicant was
guilty of unauthorised removal of the third and fourth
respondents’
property.
It is trite that the employee in dismissal cases has the
onus
to show that he or she was dismissed. Once the employee has shown
that he or she was dismissed the o
n
us rests on the employer
to show that the dismissal was for a fair reason. In other words,
the employer
bears the o
n
us
of proving the alleged misconduct on a balance of probability.
The present case is slightly different to the
cases that generally serve before Commissioners on arbitration. The
majority of
cases that goes to arbitration in the CCMA and other
dispute resolutions determine the validity or the fairness of the
reason
to dismiss an employee. In other words the task of the
arbitrators in those cases is to determine whether there existed a
fair
reason for dismissing an employee. Whilst the arbitrator has to
determine the matter
de novo
in those cases, he or she in relation to the sanction has to do so
by having regard to the reasons given by the employer for
dismissing
the employee.
Section 188A provides for pre-dismissal arbitration which can only
be conduct by agreement between the employer and the employee
and
when the employer intends charging the employee with misconduct.
2
The task of arbitrators in terms of section 188A is slightly
different in that in that regard the task is to determine on the
balance of probabilities whether an employee has committed an
offence for which he or she has been charged with and if so whether
there is a basis in fairness to terminate the employment
relationship between the parties. In other words, the terms of
reference
for the arbitrator in terms of section 188A are, unless
indicated otherwise, limited to determining whether an employee has
committed
an offence and if so whether there exists a basis in
fairness to terminate the employment relationship. In conducting
arbitration
proceedings under this section, the arbitrator is
required to determine the action to be taken against the employee on
the basis
of the evidence before him or her and on the criteria of
fairness.
An arbitration award made in terms of section 188A is reviewable in
terms of section 145 of the LRA. This means that an arbitration
award under that section may be reviewed for either unreasonableness
of its outcome or for a defect in the proceedings. The defects
in
the proceedings may as provided for in section 145 of the LRA relate
to misconduct, gross irregularity or exceeding powers
by the
arbitrator.
The applicant in the present matter challenges the arbitrator’s
award on amongst others, gross irregularity and exceeding
her
powers.
I now turn to deal with the principles governing gross irregularity
upon which the applicant relies on in challenging the arbitration
award of the Commissioner. In interpreting the meaning and effect of
gross irregularity on arbitration awards, the Constitutional
Court
in
Sidumo
and Another v Rustenburg Platinum mines and
Others,
3
held that:
‘
The basic principle was laid down in the
oft-quoted passage from
Ellis v
Morgan
132 where the court said:
“
But an irregularity in proceedings does not
mean an incorrect judgment; it refers not to the result, but to the
methods of a trial,
such as, for example, some high-handed or
mistaken action which has
prevented the
aggrieved party from having his case fully and fairly determined
.”
In
Goldfields
, the court qualified this general principle.
This case concerned a situation where the decision-maker misconceived
his or her mandate.
The court held that where a decision-maker
misconceives the nature of the inquiry, the ensuing hearing cannot in
principle be said
to be fair because the decision-maker has failed to
perform his or her mandate. Schreiner J expressed the principle as
follows:
“
The law, as stated in
Ellis
v. Morgan (supra)
has been accepted in
subsequent cases, and the passage which has been quoted from that
case shows that it is not merely high-handed
or arbitrary conduct
which is described as gross irregularity; behaviour which is
perfectly well-intentioned and
bona
fide
, though mistaken, may come under
that description. The crucial question is whether it prevented a fair
trial of the issues. If
it did prevent a fair trial of the issues
then it will amount to a gross irregularity.”’ [Footnote
omitted]
The Court further held that arbitrators are required to make awards
which are consistent with their obligations and functions
as set out
under the LRA and the Constitution. The arbitration awards that are
inconsistent with the powers given to the Commissioner
under the LRA
are reviewable in terms of section 145(2)(a)(iii) of the LRA. In
this respect,
Sidumo
held that:
‘
...In effect, if a commissioner fails to
determine the dispute fairly, he or she is in breach of the statute
that is the source
of his or her power to conduct the arbitration and
is also in breach of the doctrine of legality, which is a
constitutional constraint
upon the exercise of his or her powers.
This conduct on the part of the commissioner is ultra vires, that is,
beyond powers conferred
on the commissioners as contemplated in
section 145(2)(a)(iii).’
4
In the present instance, one of the irregularities which render the
arbitrator’s arbitration award reviewable relates to
exceeding
her powers by considering issues which were not properly before her.
The issue of whether the applicant and the driver
had authority to
use the vehicle was never before the arbitrator. The applicant was
also not charged with the amount of steel
which was removed from the
work place. The size or weight of the steel removed from the
workplace did not form part of the charge
against the applicant. The
charge for which the applicant was dismissed for is stated by the
arbitrator in more than one occasion
in the record of the
arbitration hearing as follows:
‘
Okay, I can see here that the charge I am
given is unauthorised removal of company property without permission,
that is scrap and
steel and they (say) you sold it to a steel metal
dealer.’
The Commissioner later in the record said:
‘
Now what we are here for this morning. My
job is to come and hear the evidence that Sipho (the respondent’s
employee) says
he has got against you in this issue of taking steel
from the company and selling it to a metal dealer, . . to a scrap
metal dealer.’
And during the case of the applicant the arbitrator reminded him that
the case was about:
‘
Okay, this matter is about you selling
scrap metal at the scrap metal dealership. This is the company’s
evidence, what do
you want to tell me, what happened on 30 November?’
The first witness of the third and fourth respondents, Mr Bucha who
at the time was site administrator, testified how he found
a
purchase slip which indicated that the applicant had sold the
property in issue to a metal dealer using third and fourth
respondents’ van. He further stated that the applicant was not
authorised to use the van. As concerning the amount of steel
sold,
he indicated that the total amount sold weighed 620kg.
In testifying on his own behalf, the applicant stated that on 13
November, there was a discussion about a possible braai for
his
team. There was also talk about taking the unused scrap metal to a
scrap dealer for sale. Their supervisor Mr Davies promised
to talk
to the site engineer about the sale of the scrap and using the
proceeds for a braai. Although he was not present when
Mr Davies
spoke to the site engineer, he said that Mr Davies told them that
there was an approval for them to sell the scrap
metal. The scrap
metal was sold for over R700,00- R600,00 of which was used for the
braai and R100, 00 was given to the driver.
The braai according to
him was held at the foreman’s house and present there was also
the site engineer.
Mr Davies in testifying on behalf of the applicant stated in essence
that he had a discussion with Mr Melvin, the site engineer
about the
scrap metal which was made of small pieces of metal off-cuts. He
also stated that Mr Melvin told him that if they were
going to clean
the site they could ‘get rid of the scrap.’ He further
answered in the affirmative when asked during
cross-examination as
to whether he gave permission for the scrap metal to be sold.
As concerning the value of the scrap steel which was on the floor,
Mr Davies testified that it could have been 100kg and not
620kg. And
as concerning the amount which could have been made in the sale of
the steel in question he stated that could not
have been R600,00 and
also that the applicant gave him R60,00 of the proceeds of the sale.
It is clear from the above summary that the case which was before
the arbitrator was that the applicant had removed the steel
metal
without the authority of the respondent. The issue of the removal of
the steel and selling thereof to a dealer is not in
dispute. The
issue which I will revert to later was whether the applicant had
authority to remove the steel and sell it.
It needs to be emphasised that the issue which was before the
arbitrator which she set out very clear at the beginning of the
proceedings and later on was whether the applicant had the authority
to remove the steel and sell it. The applicant was never
charged
with submitting less money than what was made out of the sale of the
steel, neither was he charged with taking more steel
than he was
authorised to remove. The applicant was also not charged with the
unauthorised use of the third and fourth respondents’
vehicle.
These are the issue which the arbitrator decided to determine even
though from the record it does not appear that the
applicant was
ever given the opportunity to answer to. It is for these reasons
that I am of the view that the arbitrator committed
an irregularity
that materially denied the applicant the right to a fair hearing.
It seems to me also that had the arbitrator properly evaluating the
evidence which was before her, she would have found that
the third
and fourth respondents had not discharged their duty of showing that
the applicant was guilty of the offence for which
he was charged
with.
It was the duty of the third and fourth respondents to show that the
applicant did not have authority to remove the property
in question.
It is also clear from the facts which were before the arbitrator
that the applicant was given authority to remove
the steel by Mr
Davies who in turn received authority to allow the steel to be sold
from Mr Mervin. I have already stated that
the case before the
arbitrator did not concern the amount of steel sold and the monetary
value of the steel sold neither was
the case about amount of money
given to Mr Davies. The conflicting version between Mr Davies and
the applicant as concerning
the quantity of the steel sold and the
amount given to him may have been of some concern but was irrelevant
in as far as determining
whether the applicant was guilty of the
offence of unauthorised removal of the steel from the workplace and
selling it to a steel
dealer.
In light of the above discussions, I am of the view that the
applicant has made out a case for the review of the arbitration
award of the arbitrator. On the basis of the material before this
Court I do not deem it not deem it necessary to remit the matter
back to the first respondent for a determination afresh.
I have also not found any reason why the primary relief of
reinstatement in terms of the provisions of section 193 of the LRA
should not apply.
5
I do not see any reason why the third and fourth respondents should
not be required to pay the costs of the applicant.
In the premises, the following order is made:
The arbitration award of the second respondent made under case
number arbitration CDR/ 9/378 dated 7 December 2009, is reviewed
and set aside.
The arbitration award is substituted with the following order:
‘
1 The initiator of the disciplinary hearing
has failed to proof on the balance probabilities that the employee
was guilty of unauthorised
possession of scrap metal.
2. The charges against the employee are dismissed’
The respondents are ordered to reinstate the applicant into the
position he occupied prior to his dismissal without loss of
benefits.
The third and fourth respondents are to pay the costs of the
applicant the one paying the other to be absolved.
_______________
Molahlehi J
Judge of the Labour Court of South Africa
APPEARANCES:
FOR THE APPLICANT: Mr KF Mphepya of the Legal Aid South Africa
FOR THE RESPONDENT: Adv Holander instructed by Petersen, Hertog and
Associates.
1
Act
66 of 1995.
2
Section
188A reads as follows:
“
188A. Agreement for
pre-dismissal arbitration
(1) An employer may, with the consent of the
employee
,
request a
council
, an accredited agency or the Commission to
conduct an arbitration into allegations about the conduct or
capacity of that
employee
.
(2) The request must be in the
prescribed
form.
(3) The
council
, accredited agency or the
Commission must appoint an arbitrator on receipt of -
(a) payment by the employer of the
prescribed
fee; and
(b) the
employee’s
written consent to the
inquiry.
(4) (a) An
employee
may only consent to a
pre-dismissal arbitration after the
employee
has been advised
of the allegation referred to in subsection (1) and in respect of a
specific arbitration.
(b) Despite subparagraph (a), an
employee
earning more than the amount
determined by the Minister in terms of
section
6
(3) of the
Basic
Conditions of Employment Act
,
may consent to the holding of a pre-dismissal arbitration in a
contract of employment.
(5) In any arbitration in terms of this section a party
to the
dispute
may appear in person or be represented only by
-
(a) a co-employee;
(b) a
director
or
employee
, if the party
is a juristic person;
(c) any member, office bearer or official of that
party’s registered
trade union
or registered
employers’
organisation
; or
(d) a legal practitioner, on agreement between the
parties.
(6) Section 138, read with the changes required by the
context, applies to any arbitration in terms of this section.
(7) An arbitrator appointed in terms
of this section has all the powers conferred on a commissioner by
section
142(1)(a) to
(e), (2) and (7) to (9), read with the changes
required by the context, and any reference in that section to the
director
for the purpose of this
section, must be read as a reference to -
(a) the secretary of the
council
, if the
arbitration is held under the auspices of the
council
;
(b) the
director
of the accredited agency, if
the arbitration is held under the auspices of an accredited agency.
(8) The provisions of sections
143 to 146 apply to any award made by an arbitrator in terms of
this section.
(9) An arbitrator conducting an arbitration in terms of
this section must, in the light of the evidence presented and by
reference
to the criteria of fairness in the Act, direct what
action, if any, should be taken against the
employee
.
(10) (a) A private agency may only conduct an
arbitration in terms of this section if it is accredited for this
purpose by the
Commission.
(b) A council may only conduct an arbitration in terms
of this section in respect of which the employer or the employee is
not
a party to the council, if the council has been accredited for
this purpose by the Commission.’
3
2008
(2) SA 24
(CC) at para 262-263.
4
At
para 276.
5
Section
193 of the LRA reads as follows:
‘
193. Remedies for unfair
dismissal and unfair labour practice
(1) If the Labour Court or an arbitrator appointed in
terms of
this Act
finds that a
dismissal
is unfair,
the Court or the arbitrator may -
(a) order the employer to reinstate the
employee
from any date not earlier than the date of
dismissal
;
(b) order the employer to re-employ the
employee
,
either in the work in which the
employee
was employed before
the
dismissal
or in other reasonably suitable work on any
terms and from any date not earlier than the date of
dismissal
;
or
(c) order the employer to pay compensation to the
employee
.
(2) The Labour Court or the arbitrator must require the
employer to reinstate or re-employ the
employee
unless -
(a) the
employee
does
not wish to be reinstated or re-employed;
(b) the circumstances surrounding the
dismissal
are such that a continued employment relationship would
be intolerable;
(c) it is not reasonably practicable for the employer
to reinstate or re-employ the
employee
;
or
(d)
the
dismissal
is
unfair only because the employer did not follow a fair procedure.’