About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2012
>>
[2012] ZALCCT 51
|
|
Powertech Transformers (DPM) v Sunuko and Others (C285/2010) [2012] ZALCCT 51 (1 February 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not Reportable
Case no: C285/2010
In the matter between:
POWERTECH TRANSFORMERS (DPM)
................................................................
Applicant
and
NUMSA OBO JONGIKHAYA CHRIS SINUKO
...........................................
.First
Respondent
DANIEL DU PLESSIS
..............................................................................
Second
respondent
METAL AND ENGINEERING INDUSTRIES
BARGAINING COUCIL (MEIBC)
................................................................
Third
Respondent
Heard: 25 May 2011
Delivered: 1 February 2012
Summary: Review, determining jurisdiction,
allegations of unfair discrimination during arbitration proceedings
JUDGMENT
VAN VOORE AJ
[1] This is an application in terms of section145 of the
Labour Relations Act (the LRA)
1
for an order,
inter alia
,
reviewing and setting aside an arbitration award (the award) made by
the Second Respondent (the commissioner). The commissioner
made an
arbitration award in which he found that the dismissal of the First
Respondent, Jongikhaya Chris Sinuko (Sinuko) was substantively
unfair. The commissioner awarded that Sinuko be reinstated and that
he be paid an amount of R28 751.80 (twenty eight thousand seven
hundred and fifty one rand and eighty cents). It is this arbitration
award which the applicant seeks to have reviewed and set aside.
Sinuko was employed by the applicant until the date of his dismissal
on 1 October 2009 Sinuko was dismissed for alleged misconduct.
It was
alleged against Sinuko that he had:
“
Verbally
abused (sic) and refuse (sic) to carry out a lawful instruction from
Elliot Johnson on Monday 15 June 2009.”
[2] Sinuko was instructed to wear his hard hat whilst on
the premises and it was alleged that he had refused to comply with
this
instruction. At a disciplinary hearing, Sinuko was found guilty
of misconduct and was dismissed. At the time of his dismissal, Sinuko
had been employed by the Applicant for some 15 (fifteen) years and
had a clean disciplinary record. Further, between the date of
the
alleged misconduct (15 June 2009) and the date on which he was
dismissed (1 October 2009) Sinuko was not placed on suspension
and he
continued to perform his normal duties. After he was dismissed,
Sinuko referred an ‘alleged unfair dismissal (misconduct)’
dispute to the Third Respondent (the Bargaining Council).
[3] During the course of the oral evidence as presented
at the arbitration proceeding, evidence was given which appears to
indicate
that victimisation and in particular union victimisation was
the reason for Sinuko’s dismissal. In this regard, Sinuko
himself
gave evidence that he was not “Simemo”. It is
agreed between the parties that this was a reference to another
employee
who was a Union member (and a shop steward). It appears to
be Sinuko’s view that Elliot Johnson (Johnson) and other
employees
of the applicant and management were taking action against
him on the basis of his union membership and activities in the same
way that they have treated ‘Simemo’. Further, and under
cross-examination Sinuko gave evidence that there was a ‘plot’
by the Applicant to rid itself of NUMSA members in its employ.
Further, Sinuko gave evidence that Johnson may have had a grudge
against him.
[4] Allegations of misconduct were made against Sinuko
following an incident between Sinuko and Johnson. This incident
apparently
commenced when Johnson enquired from Sinuko why he was not
wearing a hard hat. Sinuko and Johnson exchanged words. Sinuko
responded
by saying,
inter alia
, that when other employees
leave their work stations to go home at the end of their working day
they too do not wear hard hats,
that he too had left his workstation
to go home on the day and that for this reason it was permissible for
him not to be wearing
a hard hat. Further, Sinuko appeared to be of
the view that Johnson’s approach and admonition for his failure
to wear a hard
hat was not justified and was in fact provocative.
[4] At the arbitration proceedings, and as appears from
the transcript, there does indeed appear to have been a confrontation
between
Sinuko and Johnson. During the exchange Sinuko responded to
Johnson in,
inter alia
, the following terms:
‘
Waarvoor
moet ek ‘n helmet dra, ek will mos nie die helmet op sit nie.’
[6] The Applicant contends that this constituted
aggressive behaviour on the part of Sinuko.
[7] Further, it is common cause that during their
interaction on the day, Sinuko did indeed use his hand making the
sign of a gun
in pointing at Johnson. Sinuko, most improbably, said
that:
‘
It is
something that I do frequently when I talk. I do use my hands and my
fingers. It does not indicate that I am angry or cross
or something
like that.’
[8] This version was properly rejected by the
arbitrator. A further part of the interaction between Johnson and
Sinuko followed
when, rather than going home Sinuko followed Johnson
to his office and there he said the following to Johnson:
‘
Jy sien,
Elliot, ek sal jou wys wat sal ek saam met jou maak, ek is nie Simemo
nie.’
[9] Later Sinuko again approached Johnson and repeated
that he was not ‘Simemo’ and that ‘Ek sal jou wys
wat sal
ek met jou doen.’
[10] During his testimony, and by way of explaining the
reference to ‘Simemo’ Sinuko said the following:
‘
What
Elliot does he calls us the Kaffirs and he calls the colours his
brothers, his uncles. That’s what his doing on the job.
Only
because his complexion is regarded dark he calls himself uncle to the
blacks. When he is amongst us he calls the coloured
people Kaffirs
who would, when he is amongst the coloured people the blacks
Kaffirs.’
[11] On this basis, the Applicant contends that the case
of the union and indeed Sinuko is that the real reason for his
dismissal
was victimisation and for this reason the arbitrator ought
to have found that he did not have jurisdiction to determine the
dispute.
In particular, the Applicant contends that jurisdiction is
based on the case which a party in Sinuko’s position wishes to
pursue and not the case which the arbitrator, after having heard all
the evidence, thinks would be more beneficial to the Applicant.
It is
the Applicant’s case that at the time that Sinuko raised the
version of victimisation and union victimisation in particular,
the
commissioner was required to stop the proceedings and advise the
union and Sinuko that the matter ought to be referred to the
Labour
Court.
[12] The Applicant contends that the approach adopted by
the commissioner is impermissible. The Commissioner’s approach
is
the following:
The commissioners findings
[13] The crux of the commissioners findings are the
following
2
:
’
The
summary of evidence above was restricted to the events on 15 June
2009 at the workplace. Evidence was presented about union
rivalry and
other issues. It is not necessary to refer to this evidence as my
findings are not based on any such rivalry. Rivalry
which is often
present in a workplace where there is more than one union active. I
do not see the applicant's membership of NUMSA
as reason for the
dismissal. If that was the case then the matter should have been
referred to the Labour Court.
As
procedural fairness is not in dispute and as there was no evidence
presented to indicate that there was anything amiss with the
procedures followed, I hold that the dismissal was effected in terms
of a fair procedure.
It
was not disputed that a hard hat/helmet needs to be worn whilst
working. There are certain areas and times when one needs nto
wear
this protective gear. From the evidence it is clear that the rule is
not that the hat must be worn at all times. The evidence
shows that
workers leave their helmets at their workstations or at the gate
area. Those who leave their hard hats at the work station
when going
home will obviously have to pass through "dangerous" areas
on their way out. Applicant was one of those who
left his helmet at
the workstation. If he was going home and was on his way home he need
not wear the helmet, however if he was
not going home it was
compulsory to wear the hardhat. Mr Johnson's response when hearing
applicant was on his way home clearly
supports this. He said "but
why did you not say so" when hearing applicant was to wearing
the helmet because he was going
home.
There
is no reliable evidence to show that applicant remained in the
"dangerous" areas after that. He went to the office
area,
where the helmets are not worn, to sort out a pay query. He then went
home. Applicant was thus not in breach of the rule
to wear the
hardhat. Consequently he cannot be guilty of "refusal to carry
out a lawful instruction" as he was charged
with. It is clear
that this rule and the application of this rule needs to be
streamlined. If at all practical then hardhats should
be compulsory
all the time when on the premises and hardhats are to be stored at
the entrance/exit areas.
Did
applicant verbally abuse and/or threaten Mr Johnson? Both applicant
and Mr Johnson were asked to stand up during Mr Johnson's
cross-examination. / observed that the applicant is much shorter and
smaller than Mr Johnson. Applicant made much of the fact that
he
always "talks with his hands". However, during the course
of the proceedings he sat almost always with folded arms.
As far as
"talking with hands" is concerned everybody else used their
hands more frequently than applicant.
I
accept that Mr Johnson stopped the applicant when he saw him without
the helmet. An argument must have ensued between the men.
Mr Solomons
conceded that both were talking loudly. I do not accept that only the
applicant was angry. The whole incident should
have been put to bed
once the applicant had informed Mr Johnson that he was on his way
home. The evidence points to the fact that
neither of them let it go.
Mr
Johnson summoned people and again approached the applicant. Applicant
then also, probably as a sign of "spite" entered
Mr
Johnson's office. He admitted that he then became angry when Mr
Johnson waved him away. That is also when he told Mr Johnson
that he
was not Simemo. When applicant was on his way out, Mr Johnson again
approached applicant. There was no reason on earth
why he should have
done that. It does seem that both of them wanted to state some point
to the other.
I
do not consider the applicant's statement that he was not Simemo and
that Mr Johnson would see what would happen as a threat.
It is
irrelevant whether or not Mr Johnson felt scared or intimidated. The
evidence does not support "verbal abuse".
There was
certainly a heated argument between the men an dthe applicant's
version that he was calm throughout is rejected. He must
have done or
said something to provoke the applicant to such an extent to suddenly
become angry and behave in a manner that has
not been seen in almost
18 years of working at the respondent. Even if all other evidence is
ignored, then on applicant's own version
he threatened Mr Johnson in
his office. Applicant was therefore guilty of uttering a threat. I do
not consider it verbal abuse
though.
The
respondent's "Personnel Policies and Procedures" document
indicates that "insolence and/or using abusive and/or
insulting
language to fellow employees" and "refusal to carry out
lawful instructions or perform duties" carries
as suggested
sanction for a first offence a final written warning thereafter
dismissal with notice. Mr Harmsen testified that the
matter warranted
a departure from the code due to the seriousness. Mr Harmsen was the
sole witness to testify that the employment
relationship had broken
down irretrievably (or as he put it the trust relationship). It is
not Mr Harmsen who works with the applicants.
None o the other three
witnesses testified that they could no longer work with applicant. In
fact, after the applicant was charged
with misconduct he was not
suspended. He worked throughout the protracted disciplinary process
and there were no incidents between
the men.
It
seems thus that somehow they had all moved on and that it was only
management who was still unhappy. I cannot accept Mr Harmsen's
evidence as proof of the irretrievable breakdown of the employment
relationship and definitely not as proof of the irretrievable
breakdown of the employment relationship and definitely not as proof
of breakdown of the trust relationship. Applicant was not
found
guilty of having been dishonest. How can the trust relationship
therefore have broken down? Mr Harmsen simply did his job
when
stating that the relationship had broken down. As Mr Johnson was not
completely innocent in the whole incident I do not see
this as an
appropriate matter where the respondent could deviate from their own
code of conduct.
As
the circumstances I hold that dismissal was not a fair sanction and
that the dismissal was therefore not for a fair reason. A
final
written warning valid for 12 months would have been appropriate.
This
was an "attitudinal offence". Behaviour and/or attitude
needs to be managed. To simply resort to dismissal for such
offences
seem to be generally not in line with the principal of "corrective
discipline".
Applicant
requested reinstatement. I see no reason not to award him this
together with backpay and a final written warning to be
placed on his
record.’
[14] The Applicant contends that at the stage when it
appears that the reason relied on by an employee party at arbitration
concerns
an alleged automatically unfair dismissal, then an
arbitrator is required to determine the true nature of the dispute
and then
rule that he has no jurisdiction with the true nature of the
dispute concerns an alleged automatically unfair dismissal. In this
regard, the Applicant relies on a number of cases including the
following:
[15] An example of the correct approach may be found in
Chuma and Giflo
Engineering
(BOP) (PTY) Ltd:
3
’
The
Wardlaw case was revisited in Communication Workers Union obo
Chabangu & others v CCMA & others (unreported - case no
JR
1354-03). The arbitrating commissioner in this case issued a ruling
in terms of which the CCMA lacked jurisdiction to arbitrate
an unfair
dismissal dispute because the applicants had been dismissed for
participating in unprotected industrial action 'rather
than mere
misconduct in the strict sense of the word'. The applicants sought to
have the said ruling reviewed and set aside. The
Labour Court
extended the principles laid down in the Wardlaw case to arbitrating
commissioners and, in para 15, held that a commissioner
was enjoined
to determine the 'real' or 'true' nature of a dispute that was
referred to the CCMA irrespective of the characterization
of the
dispute in the referral form. The court pointed out that a
commissioner at the CCMA might well have 'to hear sufficient
evidence
in order to identify the true reason for the dismissal if it is not
possible to determine this question in the light of,
for example,
documentation or even the opening statements of the respective
parties'. And in para 16 of the written judgment the
court once again
emphasized that it was 'the duty of the commissioner to determine the
true nature of the dispute, not the parties'.
The court concluded by
stating that a (CCMA) commissioner who finds that a dispute falls
within the Labour Court's jurisdiction,
should either suspend the
proceedings and refer the matter to the Labour Court or seek the
consent of the parties to continue adjudicating
the dispute that
falls within the jurisdiction of the Labour Court - see para 17 of
the written judgment.
Arbitrating commissioners at bargaining councils are obviously also
enjoined to determine the true nature of a dispute, but it
is
necessary to point out that s 141(1) of the Act (in terms of which
parties may agree to arbitration under the auspices of the
CCMA) does
not apply to bargaining councils. Section 51(8) of the Act,
significantly, only extended the application of ss 142A
and 143-146
to bargaining councils - no mention is made of s 141 of the Act.
………
I consequently also accept Mr Lekhoaba's submission that the
applicant 0 and his colleagues had been dismissed because of his
participation in a strike that did not comply with the provisions of
chapter IV of the Act and not because of any unrelated misconduct.
This is the true nature of this dispute and it follows that the
council does not have jurisdiction in this matter, regardless of
the
certificate of outcome issued by Commissioner Stemmett on 20 May
2009.
Ruling
1
The respondent dismissed the applicant because of his participation
in a strike that did not
comply
with the provisions of chapter IV - ie a reason as contemplated in s
191(5)(b) (iii) of the Act.
The
council does not have jurisdiction in this matter.
3
The applicant may refer the dispute to the Labour Court.’
[
16]
CUSA
v Tao Ying Metal Industries
and Others
4
the Court held that:
'Consistent
with the objectives of the LRA, commissioners are required to "deal
with the substantial merits of the dispute
with the minimum of legal
formalities'. This requires commissioners to deal with the substance
of a dispute between the parties.
They must cut through all the
claims and counter-claims and reach for the real dispute between the
parties. In order to perform
this task effectively, commissioners
must be allowed a significant measure of latitude in the performance
of their functions. Thus
the LRA permits commissioners to "conduct
the arbitration in a manner that the commissioner considers
appropriate'. But in
doing so, commissioners must be guided by at
least three considerations. The first is that they must resolve the
real dispute between
the parties.... I
A
commissioner must, as the LRA requires, "deal with the
substantial merits of the dispute'. This can only be done by
ascertaining
the real dispute between the parties. In deciding what
the real dispute between the parties is, a commissioner is not
necessarily
bound by what the legal representatives say the dispute
is. The labels that parties attach to a dispute cannot change its
underlying
nature. A commissioner is required to take all the facts
into consideration including the description of the nature of the
dispute,
the outcome requested by the union and the evidence
presented during the arbitration What must be borne in mind is that
there is
no provision for pleadings in the arbitration process which
helps to define disputes in civil litigation. Indeed, the material
that a commissioner will have prior to a headng will consist of
standard forms which record the nature of the dispute and the desired
outcome. The informal nature of the arbitration process permits a
commissioner to determine what the real dispute between the parties
is on a consideration of all the facts. The dispute between the
parties may only emerge once all the evidence is in.'
5
[17] In my view, the commissioner’s approach in
relation to the jurisdictional issue does indeed constitute a gross
irregularity
as contemplated in section 145 of the LRA. In the
circumstances, I make the following order:
The review application is granted.
The Respondent is ordered to pay the Applicant’s
costs, such costs being limited to the costs of the hearing of the
application
and the drafting of Heads of Argument. The matter is
remitted back to the Third Respondent for determination before an
arbitrator
other than the Second Respondent.
______________
VAN VOORE
APPEARANCES:
FOR THE APPLICANT: Mr Colin Kahnovitz SC
INSTRUCTED BY: Louis van Zyl Attorneys
FOR THE FIRST RESPONDENT: Mr J. White
INSTRUCTED BY: Cheadle Thompson and Haysom
1
66
of 1995.
2
See
paras 5.1 — 5.14 at pages 27 — 30 of the pleadings,
Paragraph numbers have been inserted for ease of analysis
in the
pleadings.
3
(2009)
30 ILJ 2572 (BOA).
4
(2008)
29 ILJ 2461 (CC) at paras 65-66.
5
See
also
Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) V
Commission For Conciliation, Mediation & Arbitration &
Others
(2010) 31 ILJ 371 (LC)