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[2012] ZALCJHB 81
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National Union of Mineworkers and Others v Commission for Conciliation Mediation and Arbitration and Others (JR2278/2010) [2012] ZALCJHB 81 (1 August 2012)
9
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no. JR2278/2010
In the matter between:
NATIONAL UNION OF
MINEWORKERS
...............................................
First
Applicant
GODFREY DITSELA and 2
OTHERS
................................................
Second
Applicant
and
CCMA
..................................................................................................
First
Respondent
JOSIAS SELLO MAAKE
N.O.
.......................................................
Second
Respondent
POTGIETERSRUST
PLATINUM LTD
(MOGALAKWENA SECTION)
...........................................................
Third
Respondent
Heard: 18 May 2012
Delivered: August 2012
Summary: review –
unfair dismissal for misconduct – reinstatement as primary
remedy for substantively unfair dismissal
– long delay not
sufficient on its own to justify denial of primary remedy
___________________________________________________________________
JUDGMENT
___________________________________________________________________
WHITCHER AJ
Introduction
This is an application
to review and set aside the relief awarded in the unfair dismissal
dispute decided by the second respondent
[“the commissioner”]
under case no LP5687/2006. The award was delivered on 22 July 2010.
The applicant employees
(“the employees), G Ditsela and A M Fatana, were dismissed for
being under the influence of cannabis,
and W M Baloyi for being
under the influence of alcohol.
The commissioner found
that the employees were guilty of these offences but that their
dismissals were substantively unfair “for
reasons of
inconsistency”. He, however, found that re-instatement was
inappropriate “taking into account the inordinate
lapse of
time between the date of the dismissals and the completion of the
arbitration proceedings”. He awarded the employees
12 months
compensation each. Ditsela was dismissed in November 2006, Fatana in
May 2007 and Baloyi in November 2006. The CCMA
conducted an
arbitration in the period September 2007 to February 2008. A fresh
arbitration, which is the subject of this review,
was conducted in
2010. The reason for, and relevance of, the lapse of time between
the date of dismissals and the completion
of the arbitration is
dealt with further on.
At the commencement of
the hearing of this matter, the applicants abandoned the grounds of
review relating to the commissioner’s
findings on the guilt of
the employees and his rulings relating to the admissibility and
reliability of the blood and urine tests
which served as evidence in
the CCMA against the employees. The applicants also abandoned the
ground of review that the commissioner
unreasonably dealt with the
‘not-guilty’ plea entered on behalf of the employees at
the internal hearing. In my view,
the applicants properly
relinquished these and other arguments in which the commissioner’s
conduct was criticised with
little, if any, factual basis.
The applicants thus
limited their grounds of review to whether the circumstances
justified the non-reinstatement of the employees,
and to whether the
commissioner supplied the minimum reasons required by law for
declining reinstatement. As stated in the founding
affidavit, the
complaint is whether ‘having found that our dismissals were
substantively unfair, [the commissioner] ignored
the law compelling
him to reinstate us, and found that reinstatement was not
appropriate.’
It is important to note
that this case is not about the reasonableness of the commissioner’s
finding on sanction. If this
were the case, then the manner in which
the commissioner applied his mind to the impact of the misconduct on
the employment relationship
or the length of service of the
employees would have been relevant.
The non-reinstatement of
the employees was relief attendant upon the commissioner finding
their dismissal substantively unfair
because of inconsistent
application of discipline. This case is thus about whether, in the
circumstances, this decision on relief
is one that a reasonable
decision-maker would not make.
In general, the award
thoroughly deals with the evidence and argument advanced by the
parties. However, when it comes to giving
reasons for the relief he
orders, the commissioner has only this to say:
‘
Accordingly,
I find that the dismissals were substantively unfair for reasons of
inconsistency. I find reinstatement inappropriate
in the
circumstances of this matter, taking into account the inordinate
lapse of time between the date of dismissals and the completion
of
the arbitration proceedings and I accordingly find that maximum
financial compensation will be in order.’
It is trite that the
primary relief for a substantively unfair dismissal is reinstatement
or re-employment. Section 193 (2) (a)
– (c) of the Labour
Relations Act envisages compensation as an alternative form of
relief if the employee does not wish
to be reinstated, circumstances
surrounding the dismissal are such that a continued employment
relationship would be intolerable,
or it is not reasonably
practicable to reinstate the employee. Section 193 (2) (d) is not
relevant in this case.
The sole reason the
commissioner gives for declining to provide the employees with the
primary relief for a substantively unfair
dismissal is the
‘inordinate lapse of time’ between the date of dismissal
and the conclusion of the arbitration proceedings.
The employees in this
matter wanted reinstatement. For this to be denied them, the
‘inordinate lapse of time’ mentioned
by the commissioner
must either constitute a surrounding circumstance that makes a
continued employment relationship intolerable
or it must constitute
a condition in terms of which it is not reasonably practicable to
reinstate the employees.
Summarising the
developments in the law of review after
Sidumo
,
Anton Myburgh
1
notes that a
commissioner commits a reviewable irregularity when he makes a
finding that is either unsupported by any evidence,
based on
speculation by the commissioner or is supported by evidence that is
insufficiently reasonable to justify this decision.
A commissioner
also reaches a decision that no reasonable decision-maker would
reach if he fails to apply his mind properly to
relevant legal
provisions relating to the issue at hand.
The commissioner is
perfectly entitled to take note of the delay in this matter reaching
the CCMA, especially if the period of
delay may be relevant to the
retrospectivity of the relief of reinstatement. However, there is no
indication in the award of
any evidence being led that a continued
employment relationship would be
intolerable
as a result of the
delay. It could thus not be for this reason that the commissioner
declined to reinstate the employees.
I pause to note that it
is not feasible for the third respondent (“the employer”)
to argue that a continued employment
relationship is intolerable as
a result of the severity of the employee’s misconduct. This
matter of relief was not decided
on the basis of the appropriateness
of sanction. In any event, in finding that there was inconsistent
application of discipline,
the commissioner made factual findings,
unchallenged by the employer,
that
the employment relationship was not necessarily irretrievably
damaged by acts such as those that the employees committed.
He found
that there was no valid zero-tolerance policy in place at the
employer, that the applicable disciplinary code contemplated
a final
written warning for the misconduct in question and that internal
disciplinary chairpersons possessed a discretion to
hand down such a
lesser sanction. Based on these findings, reinstatement of the
employees would not
ipso
facto
be
intolerable.
I could also find
nothing in the award to show that the commissioner reached his
decision not to reinstate the employees because
it would not be
reasonably practicable to do so. The duty to present such evidence
fell upon the employer and it is absent from
the summary and
analysis of evidence in the award. In other words,
while there was a delay
in the matter reaching the CCMA, the remaining legal issue to which
the commissioner was enjoined by section
193 of the LRA to apply his
mind was the practicability of reinstatement. This would include
considering, for example, whether
the workplace had undergone
technological innovation during the delay or whether restructuring
had occurred which rendered the
employees redundant.
In
Lubbe
v SAPS and Others
,
2
this court considered
the reasonableness of an award in which a commissioner declined
reinstatement as relief based,
inter
alia
,
on a seven year delay in finalisation of the matter. Lagrange, J
stated:
‘
Obviously,
an employer must be alive to the fact that reinstatement always
remains a possibility if the ultimate decision goes against
it and it
cannot rely solely on a long delay in finalizing litigation as a
reason for denying the remedy the employee was entitled
to in the
first place.’
The Supreme Court of
Appeal in
Republican
Press (Pty) Ltd v Ceppwawu and Gumede and Others
3
held that a delay in
finalising a matter does not in itself justify awarding compensation
instead of reinstatement. Owing to the
fact that retrenchments had
since taken place and the union’s own role, without proper
excuse, in causing the delay, the
SCA did not order reinstatement in
Republican
Press
.
Importantly though, this decision was expressly not made on the
basis of the length of the delay as a factor on its own at all.
In
Lubbe
(supra) the award was
set aside on the basis that the commissioner reached conclusions
that could not reasonably have been reached
on the evidence before
him by denying the applicant the primary remedy of reinstatement.
The learned judge stated, ‘In
this instance the arbitrator
simply assumed, without hearing evidence on the issue, that the
workplace will have changed to an
extent that the applicant would be
unable to adjust to it.’
In the present matter,
the commissioner does not appear to even have assumed that the
employees would be unable to resume work,
either because it would be
intolerable or not reasonably practicable to reinstate them. In so
doing, he has effectively elevated
delay as an unexamined,
sufficient and stand-alone ground for denying reinstatement for
dismissals that are substantively unfair.
This is at variance with
the governing provision of the LRA, section 193 (2).
The question of who was
responsible for the delay was not reflected in the award and it does
not appear to have been raised as
a material issue by either party
at the hearing. In their review papers, the applicants criticize the
commissioner for not enquiring
into the reason for the inordinate
delay, for which they blame the employer, before finding that
reinstatement would not be appropriate.
They claim that the delay
was caused by the employer taking the first arbitration on review
and then withdrawing same. The employer
answered that the
commissioner was not required to investigate the history of the
matter. The employer goes on to say ‘If
this was a factor that
the applicants wished to rely on, they should have placed it before
the commissioner in evidence’.
The duty is in fact, the
opposite. It was the employer’s duty, if it wished to resist
the primary relief of reinstatement
for a substantively unfair
dismissal, to have laid an evidentiary basis for this in the
evidence they led at the CCMA.
It is conceivable that
another party in the employer’s position may have
cross-reviewed on the basis that the commissioner
ought to have
guided it on the evidence it needed to provide in order to resist
reinstatement. The employer did not do so and
it is therefore
unnecessary to comment further on the strength of such an argument.
As appears from the LRA
and relevant case law, a delay could only be a reason to deny an
employee reinstatement for a substantively
unfair dismissal if it is
coupled, in evidence, to a circumstance rendering a future
employment relationship intolerable or not
reasonably practicable.
There was though no evidence on this question before the
commissioner.
By denying the employees
reinstatement solely because of an ‘inordinate’ delay,
the commissioner in my view decided
the question of relief in a
manner not reasonably supported by the evidence before him. There
does not seem to have been any
other evidence before him that could
have legitimised the substitution of compensation for the primary
remedy of reinstatement.
By relying on delay as a sufficient,
stand-alone basis to deny reinstatement, he also committed a
reviewable error of law in
deviating from the provisions of section
193 (2) of the LRA.
Conclusion
In am satisfied that in
denying the applicant employees the primary remedy of reinstatement
for their substantively unfair dismissal,
the commissioner reached
conclusions that could not reasonably be reached on the evidence
before him. Accordingly, his award
of compensation as an appropriate
form of relief must be set aside.
Order
In view of the reasoning
above:
The second respondent’s
finding that compensation of 12 months’ remuneration is an
appropriate form of relief is reviewed
and set aside.
The second respondent’s
finding on the appropriate relief for the applicant employees’
unfair dismissal is substituted
with an order that the third
respondent must reinstate the applicant employees with retrospective
effect including backpay from
the date of their dismissals.
The applicant employees
must be issued with final written warnings on their return to work.
The applicant employees
must be reinstated by 1 September 2012.
The third respondent
must pay the applicants’ costs.
_____________
Whitcher, AJ
Acting Judge of the
Labour Court
Appearances:
For the Applicant:
Advocate L Tyatya
Instructed by: E.S.
Makinta Attorneys
For the Third Respondent:
L Louw
Instructed by: Edward
Nathan Sonnenbergs
1
Myburgh
‘
Reviewing the Review Test: Recent Judgments and
Developments’
(2011) 32
ILJ
1504.
2
Lubbe
v Roop NO and Others
(JR 1303/09) [2012] ZALCJHB 7 (20 January
2012) at para 24.
3
Republican
Press (Pty) Ltd v CEPPWAWU and Gumede and Others
[2007] 11 BLLR
1001
SCA at para 22.