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[2013] ZALCJHB 120
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National Union of Mineworkers and Another v Commission for Conciliation Mediation and Arbitration and Others (JR 746/07) [2013] ZALCJHB 120 (12 June 2013)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 746/07
In the matter between:
NATIONAL UNION OF
MINEWORKERS
...............................................
First
Applicant
M.A. MALEPE
.....................................................................................
Second
Applicant
and
COMMISSION FOR
CONCILIATION MEDIATION,
AND ARBITRATION
...........................................................................
First
Respondent
NYOFFU L N.O.
.............................................................................
Second
Respondent
ANGLO PLATINUM MINE
.................................................................
Third
Respondent
Heard: 06 June 2013
Delivered: 12 June
2013
Summary:
JUDGMENT
BENJAMIN, AJ
Introduction
This is a judgment in a
review application in respect of an arbitration award by the second
respondent. The arbitration hearing
was conducted on 10 January 2007
and the arbitrator’s award was provided to the party during
February 2007. The review
was argued in Court on 6 June 2013.06.08
The second applicant had
been employed by the respondent mine for a period of 4 years before
he was charged with clocking fraud
committed on 15 November 2006.
For several days before then, there had been irregularities in the
manner in which the second
applicant had clocked in. The employer
alleged that on 15 November, he clocked in on the surface but did
report for duty. The
second respondent’s version was that he
had reported for duty at the Human Resources Department where he had
been working
in a trainee position.
At the arbitration
hearing, the employer presented evidence from the human resources
co-ordinator, the acting employment relations
officer and the
relevant section manager at the mine. The second applicant gave
evidence in his own defence. In the arbitration
award, the
arbitrator summarised the evidence and recorded the fact that the
applicant stated that he failed to report for duty
underground
because he needed to consult his trade union representative and
needed to undergo a refresher course. She also recorded
that the
applicant had acknowledged that he was requested by two of his
seniors to clock in underground. The arbitrator concluded
that the
applicant employee had disobeyed a direct and clear instruction by
two of his superiors regarding clocking. She also
concluded that
when the second applicant clocked in on 15 November his intention
was not to resolve his problems and that had
he not been directed to
leave the area by a supervisor he would have been remunerated by the
employer for clocking in. The arbitrator
therefore concluded that
the employee had committed clocking fraud.
In the review the
respondent challenges this finding on the basis that the charge of
clocking fraud was not the correct ground
for him to have been
charged with and he should have been charged with failing to follow
an instruction to report for duty. In
my view this challenge is not
a ground for review and is an issue that should appropriately have
been raised in the disciplinary
hearing and the arbitration. It is
not a ground for setting aside the arbitrator’s decision.
There is no discernible irrationality
in the arbitrator’s
evaluation of the evidence and in her conclusion that the employee
was guilty of clocking fraud and
that aspect of the award cannot be
aside.
Having concluded that
the employee was guilty of clocking fraud, the arbitrator proceeds
directly to accept that the employer’s
sanction of dismissal
was fair in the circumstances. However, the award unfortunately does
not reflect the reasoning for reaching
this conclusion. This
omission would appear to amount to a
“
process
error
”
in
the sense contemplated in the
Herholdt
v Nedbank
Ltd
1
.
The Applicant suggested that this provided a basis for the Court to
review the matter because the Arbitrator did not onsider
alternatives to the sanction of dismissal. The Applicant argued that
I should either substitute my own finding or refer the matter
back
to the Arbitrator to reconsider the issue. Certainly, a referral
back to the CCMA would be totally appropriate in the current
circumstances both because of the lengthy period since arbitration
and because adopting such an approach regularly would serve
to
overburden the CCMA.
There are a number of
indications on the record that the Arbitrator’s conclusion
that the sanction of dismissal was fair
is not unreasonable. These
include uncontested evidence that the employer’s Disciplinary
Code provides for dismissal for
clocking fraud as a first offence,
that this penalty had been consistently applied and that some 17
employees had been dismissed
by the employer for clocking fraud.
Accordingly, I am satisfied that the decision to confirm the
employer’s sanction was
one that could have been made by a
reasonable decision-maker and, accordingly, there is no basis for
setting it aside in review
proceedings.
The applicant further
challenged the procedural fairness of the dismissal. The Arbitrator
upheld this claim in part finding that
a failure by the employer
mine to notify the trade union that it was taking disciplinary
action against the second applicant,
who was an alternate shop
steward, was procedurally unfair because it did not comply with the
Code of Good Practice: Unfair Dismissal.
The Arbitrator awarded one
month’s compensation. While the award of compensation may be
low, again I do not feel that the
Arbitrator’s decision falls
within the ambit of a reviewable irregularity.
Accordingly, the
application for review of the arbitration award by the second
respondent is dismissed with costs.
___________________________
Benjamin, AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
For the applicant: T.
Faku
Instructed by Nomali
Tshabalala Attorneys.
For the Third respondent:
B. Shezi
Instructed by Edward
Nathan Sonnenbergs
1
(2012)
33 ILJ 1789 (LAC)`