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[2012] ZALCJHB 130
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National Union of Mineworkers and Another v Commission for Conciliation Mediation and Arbitration and Others (JR2327/10) [2012] ZALCJHB 130 (1 November 2012)
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case
no: jr 2327
/10
In the matter between:
NATIONAL
UNION OF MINEWORKERS
.........................................................
First
Applicant
MARABA,
PHILLIP
......................................................................................
Second
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
..............................................................
First
Respondent
TERRENCE
SERERO, NO
......................................................................
Second
Respondent
DRASET
(A division of Aveng (Africa) Limited)
.....................................
Third
Respondent
Heard
: 26 April 2012
Delivered
: ..November 2012
Summary: Review:
Arbitrator failing to address issues in
dispute. Award reviewable Referred back for hearing de novo
JUDGMENT
GUSH J
This is an application by the applicants for an order reviewing and
setting aside the second respondent arbitration award under
case
number GAJB 8719/10 and directing that the matter be referred back
the first respondent for arbitration
de novo
before a
Commissioner other than the second respondent.
The applicants in this matter are the National Union of Mineworkers,
the first applicant, the union of which the second applicant
is a
member. I shall for convenience simply refer to the first and second
applicants collectively as the applicant. The applicant
was employed
by the third respondent prior to his dismissal.
The applicant was employed by the third respondent as a bracket
assembler in May 1999. On 17 February 2010, the applicant was
suspended by the third respondent and pursuant to being served with
a notice to attend a disciplinary enquiry that took place
on 23
February 2010. At the conclusion of the disciplinary enquiry, the
applicant was dismissed, and, dissatisfied with his dismissal,
he
referred a dispute to the first respondent who in due course after
conciliation appointed the second respondent to arbitrate
the
dispute.
The "alleged transgressions" which led to the applicant’s
dismissal was recorded in the notice of the disciplinary
enquiry
handed to the applicant as:
‘
1
refusal
to obey a reasonable instruction refused to work. Whilst trying to
solve a L. L.
Problem,
asked Philip to wait while waiting for Teboho he walked off, even
asking again (Alex MacDonald) to come back – he
did not come
back.
2 gross insubordination,
seriousness respect. While you talking to him he walked all and told
me I will be disciplined.
’
The record of the disciplinary enquiry records that the applicant
was dismissed after being found guilty of the following:
‘
1
refusal to obey reasonable instruction;
2 gross insubordination’
The facts and circumstances which led to the applicant’s
dismissal appear from the evidence led at the arbitration and
the
record of the disciplinary enquiry.
1
The
essential facts relating to the incident or altercation which led to
the applicant’s dismissal are to a large extent
common cause.
At the arbitration, the third respondent led the evidence of two
witnesses. The first witnesswas a Mr Quass; the
third respondent’s
factory manager, and a Mr Spath, the chair of the disciplinary
enquiry. The applicant himself gave evidence
and he called no other
witnesses.
Quass’s evidence was that on the day in question he was
conducting an inspection of the plant. Quass was advised by a
supervisor by the name of Macdonald that he was experiencing
difficulties with an employee nicknamed Irishwho was apparently
refusing to perform certain functions as he, Irish, believed he was
not being paid to perform such tasks. Quass instructed Macdonald
to
call Irish. When Macdonald returned he advisedQuass that Irish
refused to speak to him.Quass decided that it would be appropriate
to summons a shop steward to deal with the situation and instructed
Macdonald to call a shop steward.Macdonald returned with
the
applicant.
Quass asked the applicant to which union he belonged to which the
applicant replied that Quass knew to which union he belonged.
As the
applicant did not answer the question Quass then asked the applicant
the following question "are you still part of
NUM?" The
applicant replied "you see you do know". This Quass felt
was disrespectful. Quass then asked the applicant
to call Irish.
According toQuass the applicant was not very cooperative and the the
applicant had had asked him a number of questions
including wanting
to know whyQuass wanted him to call Irish.
Quass explained that this had had the effect of "getting [him]
a bit worked up” and he had walked away from the applicant
in
order to "calm himself down". He had then returned to
where Macdonald was standing and the applicant had walked
away back
into the plant. It is clear from his own evidence that he,Quass, had
become angry with the applicant and had walked
away from the
applicant. When Quass returned to where MacDonald was standing he
explained that a further altercation ensued.
Quass’s evidence
was that as the applicant was walking away he had said to the
applicant that if he did not call Irish
he would be forced to take
disciplinary action against Irish. According to Quass the applicant
responded by telling him that
"you will be disciplined".
Quass decided that he could not allow the applicant to speak to him
“... as a factory manager ... like that’ and
told the
applicant that he was going to phone the plant manager to explain
the situation. This he did and told the factory manager
“we"
need to take action because the applicant was “not trying to
support [him] and to try and solve the problem
and that the
applicant was responding to him aggressively and uncooperatively and
was showing disrespect. Whilst he was on the
phone the applicant had
returned to the factory despite requests to come back.
Save for relatively minor discrepancies the incident as described by
the Quass the factory manager was to all intents and purposes
similar to the applicant’s evidence. As is set out below the
essence of the applicant’s challenge to the substantive
fairness of his dismissalthat the second respondent was required to
consider,was the legitimacy of the instruction given to the
applicant by Quass and whether the circumstances of the altercation
between Quass and the applicant warranted a sanction as severe
as
dismissal.
The applicant in addition to challenging the substantive fairness of
his dismissal also challenged the procedural fairness of
his
dismissal. The applicant’s grounds for challenging the
procedural fairness was that as he was a shop steward the respondent
was obliged to inform and consult the union irrespective of the
disciplinary enquiry and that he was entitled to be represented
by a
union official but was refused representation. It was common cause
that the third respondent did not consult the union and
had refused
the applicant such representation.
A further issue in contention was the applicant’s averments
that the two charges of misconduct were in essence a duplication.
In
respect of the procedural irregularities the third respondent called
Spath the chairperson of the disciplinary enquiry. The
issue of the
duplicated charges and the failure consult the union was canvassed
extensively during Spath’s evidence. Despite
this the second
respondent makes no reference whatsoever to Spath’s evidence
in his award save for the following "however
it is correct that
the chairperson, Mr H Spath advised the applicant that external
representation was not permitted as per the
companies disciplinary
code."
2
the only other reference to the pursuit of fairness appears in the
penultimate paragraph of the second respondent’s analysis
where the second respondent concludes that the failure to allow the
applicant union representation was not the a material procedural
defect and that it was sufficient to simply inform the union that a
shop steward was to be subjected to an enquiry without discussing
the merits of the charges.
3
The specific issues which the second respondent was to decide are
clearly set out in the third respondent’s heads of argument
in
the arbitration. The third respondent lists the issues to be decided
as follows:
no union official permittedto represent accused in disciplinary
hearing
charges unclear or duplicated
Chairman biased
reason for dismissal not valid
instruction not work-related
no such a rule in disciplinary code
4
Conspicuous by its absence in his award, is any attempt whatsoever
by the second respondent to address any of these issues, save
for
his desultory comments regarding the first issue listed above.
The applicant’s grounds of review to all intents and purposes
mirror the issues listed above in that the applicant averred
in his
founding affidavit that the second respondent should have held that:
his dismissal was procedurally unfair in that the union had not
been consulted;
the charges of misconduct were duplicated;
the second respondent should have found that the instructions given
byQuass were unreasonable; and
his conduct did not amount to either insubordination or a refusal
to obey instructions.
The applicant’s case, in argument,was that by failing to do so
the second respondent committed reviewable irregularities
or came to
a decision that a reasonable arbitrator could not have reached given
the material before him.
Considering the second respondent’s award, apart from its
brevity, there are a number of concerns which manifest themselves.
These are:
Firstly and most importantly the second respondent appears to
justify the dismissal of the applicant’s application on
the
spurious grounds that the applicant had not "challenge[d] the
company version".
5
There
can be no doubt from the record that the applicant’s version
was at all times patently clear to all parties to the
arbitration.
The issue regarding the applicant’s so-called failure to put
his defence to the third respondent's witnesses
appears in the
third respondent’s "Heads of Argument"
6
.
In fact the second respondent appears unjustifiably to have adapted
for the purposes of his award the averments made by the
third
respondent’s representative in the paragraph headed
"ARGUMENT” in the "Heads of Argument"
7
.
Secondlyas regards the second respondent’ssomewhat pejorative
reference to the applicant’s "brief testimony"
there could be no doubt regard being had to the record as to the
nature and basis of the applicant’s challenge to the
fairness
of his dismissal.
8
The transcript of the entire arbitration runs to some 148 pages of
which the applicant’s evidence comprises 56 pages.
It is
clear from the applicant’s evidence that at all times the
applicant challenged the legitimacy of the charges levelled
against
him both insofar as the charges amount to a duplication and on the
grounds that the instruction to the applicanta shop
steward in the
circumstances was not a legitimate instruction.These issues were
clearly issues which the second respondent
was required to decide
which he clearly did not.
Coupled with the second respondent's failure to even refer to or
consider the third respondent’s disciplinary code is
the
second respondent’s failure to consider in any manner whether
dismissal was an appropriate sanction in the particular
circumstances of the matter.
In coming to his award,the second respondent to have unjustifiably
relied upon and accepted the third respondent’s submission
that the applicant had not challenged the third respondent’s
evidence. In so doing the second respondent andfailed to consider
or
deal with those issues which on the third respondents own
submissions he was required to. For these reasons, I am satisfied
that the second respondent’s award is reviewable and falls to
be set aside.
The applicant sought an order that the matter be referred back to be
arbitrated
de novo
. In the circumstances, I make the
following order:
the arbitration award under case number GAJB 8719/10 is reviewed
and set aside;
the matter is referred back to the first respondent to be
arbitrated
de novo
before a Commissioner other than the
second respondent;
there is no order as to costs
_________________
D H Gush
Judge
APPEARANCES
FOR THEAPPLICANT: G I Hulley
Finger Phukubje Inc Attorneys
FOR THE THIRD RESPONDENT: E Hutchinson
Moodie and Robertson Attorneys
1
Transcribed
record of arbitration pages 10 – 19.
2
Award
para 3.9
3
Award
para 5.7.
4
Bundle
of documents page 42.
5
Award
para 5.1 and 5.5.
6
Bundle
of documents page 42.
7
Bundle
of documents page 44.
8
Award
para 4.1.