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[2013] ZALCJHB 132
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Rustenburg Platinum Mine Limited - Union Section v Viljoen and Others (JR77/11) [2013] ZALCJHB 132 (11 July 2013)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case no: JR77/11
In the matter between:
RUSTENBURG PLATINUM MINE LIMITED –
UNION SECTION
.........................................................................................................
Applicant
and
VILJOEN, D.H.
................................................................................................
First
Respondent
RAMOTSHELA, MATHEWS,
N.O
.............................................................
Second
Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
.................................................................
Third
Respondent
Date of hearing : 09 July 2013
Date of judgment: 11 July 2013
Summary: Arbitration award
reviewable in so far as the Commissioner awarded reinstatement while
the employee indicated that he did
not seek reinstatement. The court
confirmed compensation amount equivalent to what the Commissioner
awarded as back pay to be a
fair compensation.
JUDGMENT
BALOYI AJ
Introduction
[1] The Applicant is seeking to review
and set aside the arbitration award made by the Second Respondent
wherein the dismissal of
the First Respondent was found to be
procedurally fair and substantially unfair. The Second Respondent
awarded relief of reinstatement
coupled with back pay equivalent to
six months remuneration. The award follows the First Respondent’s
referral of unfair
dismissal dispute to the CCMA which was ultimately
arbitrated by the Second Respondent. Both the review application and
the opposition
were filed out of time and the parties applied for
condonation of such lateness. The representatives of both parties
agreed not
take issues against each other in this respect, they
wished to have the matter dealt with on its merits.
Background facts
[2] The brief facts of the matter is
that, the First Respondent was dismissed for having uttered racial
remarks towards Shopstewards
at a work place which included the use
of “K” word. The three Shopstewards testified in support
of the Applicant’s
case to the effect that they heard the
remarks in question from the First Respondent who appeared to have
been angry at the moment
of such utterances. The First Respondent
denied making any racial remarks as he only spoke to one Alfred
Tshepo Phefo when enquiring
about procedures applicable for release
of Shopstewards. According to the Applicant’s case, the remarks
were made after Phefo
told the First Respondent that his enquiries
should rather be directed to the Employee Relations Officer. Motlatsi
Letsa, one of
the three witnesses of the Respondent witnessed an
incident wherein the First Respondent was requested by Phefo to
remove his hand
from Phefo’s computer and the First Respondent
responded by uttering racial remarks.
[3] The second Respondent’s
finding of the unfairness of the dismissal was based on the fact that
the Applicant’s three
witnesses who were in the same office
which is the scene of misconduct differed about the source of the
First Respondent’s
anger which led to the remarks. According to
Phefo and Tshabalala the racial remarks were made for no reason while
according to
Letsa the request by Phefo to have the First
Respondent’s hand removed from the computer triggered the
insults. The Second
Respondent found this as a discrepancy in the
evidence of the Applicant and went on to make a finding which is
subject matter of
this application.
[4] The Applicant’s grounds of
review are based on the fact that the commissioner reached
conclusions that are not rationally
justifiable which no reasonable
decision maker would have reached. The grounds were backed by facts
in sequence of what transpired
at the time of misconduct. It is not
worthwhile to repeat them herein save to point that the Applicant’s
submissions amongst
others are that; The Second Respondent was
required to determine whether the First Respondent was guilty of the
offence charged
with, in so doing it was his duty to weigh the
evidence presented by the parties against each other. The Second
Respondent lost
focus on what he was to determine, the speculative
assessment of the First Respondent’s mind could not be a
determining factor
on whether the words were uttered.
[5] Ms Hanif for the applicant
emphasized that the Second Respondent’s finding is indicative
of his failure to properly weigh
evidence placed before him. Ms
Schonken for the Third Respondent submitted that the issue of burden
of proof was more determining
on whether the remarks were uttered or
not. The burden rested on the Applicant. In the light of the First
Respondent’s abandonment
of relief of reinstatement at the
commencement of arbitration proceedings, Ms Schonken conceded that
the awarding of reinstatement
was not based on what was placed before
the Second Respondent.
Evaluation
[6] It is trite that the court in
scrutinizing the award it should not expect that commissioners should
apply mathematical precession
towards their decision making process.
The Second Respondent appears to have given clear reasons (though not
in a simple language)
for his finding. What can be extracted from the
award and the record is that there were mutually destructive versions
from the
parties. The Second Respondent’s finding against the
Applicant (who had a burden of proving the fairness of the dismissal)
is not the one which a reasonable decision maker could not reach. The
discrepancy in the Applicant’s evidence according to
the Second
Respondent in respect of the touching of the computer which was seen
differently or not seen at all by other witnesses
justifies the
Second Respondent’s arrival at the decision made. Having been
faced with mutually destructive versions by witnesses
the Second
Respondent was therefore entitled to accept the Respondent’s
evidence as more probable or consistent see
Masilela
v Leonard Dingler (Pty) Ltd
1
.
[7] In this regard the award of the
Second Respondent does not deserve to be interfered with in so far as
his finding on unfairness
of the dismissal is concerned. The worrying
issue is the reinstatement relief awarded. The Second Respondent
clearly recorded it
at the commencement of arbitration proceedings
that the First Respondent was not seeking reinstatement and the First
Respondent
confirmed same. His awarding of reinstatement despite
First Respondent having not asked for, constitutes an irregularity
which
warrants correction of the award but not to be entirely set
aside. Since reinstatement has fallen away the only relief available
to the First Respondent is compensation. An equivalent of six months
remuneration as determined by the Second Respondent when awarding
back pay based on the period which the First Respondent was out of
work between the date of dismissal and the award is fair and
reasonable. There is no need to interfere with the quantum save to
say that it is no longer back pay but compensation. This is
not a
matter which calls for a cost order against any of the parties as
there is partial success on both of them.
[8] With regard to condonation
applications by both parties in respect of the review application and
answering affidavit, I am inclined
to grant such applications with no
order as to costs.
Order
[9] In the premises, the following
order is made;
8.1. The late filing of the review
application and late filing of first Respondent’s answering
affidavit are condoned,
8.2 The review application is
dismissed in part and upheld in part,
8.3. Part of the arbitration award
relating to the relief is reviewed and set aside and replaced with
the following one;
8.3.1. The dismissal of the First
Respondent is found to be unfair,
8.8.2. The Applicant is ordered to pay
the First Respondent R123 420-00 which is an equivalent of six months
remuneration within
14 days of this order,
8.4 I make no order as to costs.
_______________
BALOYI AJ
Appearances:
For the Applicant:
Ms S Hanif of Edward Nathan &
Sonnenbergs Attorneys
For the First Respondent:
Ms
Schonken of Shonken Incorprated
1
(2004)
25 ILJ 544 [LC] at paragraph 29