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[2012] ZALCJHB 180
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Western Platinum Ltd v NUM obo Molema (JR 2344/11) [2012] ZALCJHB 180 (21 November 2012)
5
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
CASE NO: JR 2344/11
In the matter between
WESTERN PLATINUM LIMITED
......................................................................
Applicant
and
NUM obo
MOLEMA JM
...............................................................................
Respondent
Heard:
21 November 2012
Delivered:
21 November 2012
____________________________________________________________________
EX-TEMPORE J U D G M E N T
____________________________________________________________________
CELE J
[1] The arbitration award dated, 5 August 2011, issued by the second
respondent as a Commissioner of the first respondent is sought
to be
reviewed and set aside in terms of section 145 of the Labour
Relations Act, hereafter referred to as the “Act”
or the
“LRA”. The third and fourth respondents did not oppose
this application. The award was issued in favour of the
fourth
respondent, who is actually an employee of the applicant. The third
respondent being the union that the fourth respondent
was a member
of.
[2] The employee commenced his employment with the applicant on 21
May 2003 as a loco operator, I think it should be locomotive
operator
but they call it loco operator. On or about 10 May 2011, the employee
was suspended with full pay pending the outcome
of an investigation
regarding his involvement in an assault perpetrated on a fellow
employee. Over and above, the employee had
a disciplinary history
according to the record of the applicant, whose disciplinary history
included a valid final written warning
for the offences of arriving
late at the workplace, threatening violent and using abusive
language.
[3] One of the conditions of the suspension was that the fourth
respondent had to report to the Human Capital Consultant, which
is
normally abbreviated as HCC, and he had to report daily whilst he was
on suspension. The notice to attend a disciplinary hearing
for
allegations pertaining to an assault was issued to him on 16 May
2011.
[4] On 17 May 2011, the applicant received an indication that its
employees were considering withholding labour. The reason appeared
to
be a demand from employees that the Branch Committee, which included
one Mr Steve Khululekile and one Mr Dan Nomboketsi who
had been
dismissed, be reinstated. The applicant’s employees
participated in a march to the office of the applicant’s
Vice
President of the Karee Mine and presented their demands.
[5] On 18 May 2011, following the Municipal election, applicant’s
employees on nightshift commencing at about 22h00, flatly
refused to
continue with their work. Thereafter, on 19 May 2011, the entire
workforce at the applicant’s Karee Mine, including
the fourth
respondent, embarked on an unprotected strike. On Friday, 20 May
2011, which was the following day, the applicant approached
this
Court seeking on urgent basis an order interdicting what it called an
unprotected industrial action. The order was accordingly
granted
prohibiting the strike and declaring it to be unprotected. The order
was served on the employees.
[6] However, despite the employees having been served with the order,
they continued with their unprotected industrial action.
There were
three shifts which were scheduled for the weekend of 20 May 2011, and
these employees did not resume their work. The
employee himself
joined the team that was on strike. On Monday, 23 May 2011, the
applicant distributed a notice to its employees
at the hostel and at
various points on its premises. The applicant did not receive any
representations from the employees and even
less from the fourth
respondent who participated in an unprotected strike as to why they
were not returning to work and to comply
with the ultimatum given to
them.
[7] On Wednesday, 24 May 2011, the applicant sent a notice to its
employees, barring those who had tendered their services, in
which
the applicant informed them that they had been dismissed with
immediate effect. That order included the fourth respondent
who had
similarly participated in the industrial action. The applicant
required these employees to vacate the premises immediately
and
offered them transport from the applicant’s premises to
stations and bus depots. The applicant maintained that the fourth
respondent was dismissed on 24 May 2011 on the grounds of his
participation in an unprotected strike.
[8] The applicant then embarked on a process to try and re-employ
certain of its employees. It engaged the union in the course
of that
process and certain ground rules were set. They included the fact
that any employee who had a final written warning would
not be
reemployed. And in due course, the applicant began to process
reemployment of its employees, these were about 9 000
in all. It
then issued a certain document which appears here on page 39, it is a
memorandum inviting employees that qualified to
avail themself to
resume work. The memorandum is dated, 24 May 2011. Paragraphs 1, 2
and 3 of this read:
“
[1]
The company invites former employees who were dismissed on 24 May
2011 for taking part in an unprotected strike action and breaching
their contractual obligations to make application to be considered
for reemployment.
[2] The company has a right
to reject applications for reemployment where former employees were
on a final warning for previous
participation in unlawful industrial
action or previous breach of their contractual obligations owed to
the company prior to their
dismissal on 24 May 2011.
[3] The company also reserves
a right to reject an application for reemployment by a former
employee who is found to have instigated,
caused or promoted this
unlawful and unprotected strike in addition to having participated
therein.”
[9] As events would have it, somehow the employee was also in
possession of the offer of reemployment and he queued up as if he
qualified, but the applicant quickly picked it up that he had wrongly
been invited according to it because he had a final written
warning
that had been given to him. He was then detected and then was removed
from continuing with the re-employment process.
[10] He felt aggrieved by that exclusion. He then referred an unfair
dismissal dispute for conciliation and for arbitration. The
second
respondent was appointed to arbitrate this dispute. The arbitration
was scheduled for 18 July 2011 and it was eventually
proceeded with
on 20 July 2011. At the commencement of the arbitration proceedings,
the parties firstly had to establish what exactly
the fourth
respondent was alleging his case to be. The fourth respondent then
alleged that he was dismissed on 27 May 2011 after
his contract of
employment, so he claimed, was repudiated leading to his dismissal.
[11] He was actually saying that he had been reemployed in terms of
the offer given to the 9 000 employees and that the dismissal
took place at that time. The applicant disputed that and insisted
that he had been dismissed on 24 May and that he attempted unlawfully
to find his way back into employment. The second respondent in the
award found that the applicant, that is the employee, referred
to
being dismissed while the respondent vigorously disputed that. The
second respondent said:
“
I
find it a bit strange that the respondent can print 9 000 copies
of contracts including those who were not supposed to be
reemployed
knowing very well that others did not meet the required criteria.”
A further finding he made was the following:
“
On
a balance of probabilities, I defer to the version of the applicant
during his arbitration as vastly more credible than the version
presented to me by the respondent. It was overwhelmingly clear to me
that the applicant was offered reemployment, which he accepted
and he
was then dismissed.”
[12]
The second
respondent made no reference to the document which I have referred to
as the memorandum, which clearly indicated that
the company reserved
its right to reject any application for re-employment where a former
employee was on a final written warning.
It is clear from the
evidence that was adduced during the arbitration proceedings by the
witnesses of the applicant that a mistake
took place which could not
be detected or the source of which could not be detected and so he
came, that is the employee, came
to have a form for re-employment. It
is clear that the employee did not qualify for re-employment because
he did not meet the rules
set by the employer and by the unions
together, and they knew about all of this.
[13] The second respondent clearly misdirected herself in the manner
that she approached the evidential material. She failed to
consider
the very important evidential material, as a consequence of which she
misdirected herself. Clearly the misdirection was
so gross that it
allows this Court to review the award of the second respondent. There
is no doubt in my mind that the evidence
is overwhelming to show that
the fourth respondent was dismissed by the applicant on 24 May 2011,
and that he did not qualify for
re-employment.
[14] Accordingly, therefore, the order is granted as prayed for in
paragraph 1 of the Notice of Motion, which reads thus:
The arbitration award issued by the second respondent under case
NWRPRB1685/11 on 5 August 2011, received by the applicant on
11
August 2011, is reviewed and set aside.
No costs order is made.
____________________
CELE J
Judge of the Labour Court