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[2013] ZALCD 11
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Gwala v Commission for Conciliation Mediation and Arbitration and Others (D 296/11) [2013] ZALCD 11 (14 May 2013)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, AT DURBAN
JUDGMENT
Not Reportable
Case
no: D296/11
In the matter between:-
SIBONGISENI GWALA
............................................................................................
Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
...............................................................
First
Respondent
COMMISSIONER WAYNE
PAUL N.O.
..................................................
Second
Respondent
TOYOTA SA MOTORS (PTY)
LTD
............................................................
Third
Respondent
Date of hearing
:
21 February 2013
Date of judgment
:
14 May 2013
Summary
: Review
application – long delay in finalisation of disciplinary
enquiry – requirements for procedural fairness. Approach
of
arbitrator when dealing with conflicting versions –
Sasol
Mining (Pty) Ltd v Ngqeleni NO & Others
followed.
judgment
CHETTY, AJ
[1] The applicant in this
matter, Mr. Gwala, brought an application for review in terms of
section 145
of the
Labour Relations Act 66 of 1995
of the decision
handed down by the second respondent (the ‘Commissioner’),
acting under the auspices of the Commission
for Conciliation,
Mediation and Arbitration (‘CCMA’). The basis of the
review application is that the commissioner
committed a series of
gross irregularities in finding the applicant guilty of gross
insubordination and a repeated failure to follow
certain instructions
in September 2009. The applicant was charged with one count of gross
insubordination, in that it was alleged
that on 10 September 2009 he
repeatedly refused to follow an instruction from his group leader and
senior manager, a Mr. Whitehead,
to resume work and questioned the
authority of his senior manager. He was also charged with two counts
of refusing to obey instructions
shortly after the incident listed in
the first charge. It is not necessary for me to deal with the
contents of the latter two counts
as the applicant was found guilty
only on the first charge, and dismissed on 14 September 2010. The
delay in the eventual holding
of the enquiry, almost a year after the
charges had been laid, formed part of the applicant’s attack on
a ground of procedural
fairness.
[2] The factual
background to the matter, as found by the commissioner, is that the
applicant was employed as a welder in the chassis
plant section of
Toyota Motors SA since 2004. Early in September 2009, the applicant
and another colleague, Mr. Jacquere, had an
altercation over a fan.
Matters appeared to boil over when the applicant pushed a loaded
trolley onto Jacquere, causing him to
be injured. Both employees were
members of the National Union of Metal Workers of South Africa
(NUMSA), which presented problems
as to how the matter should be
dealt with. The shift on which the applicant and Jacquere worked did
not have a full time shop steward
and when the incident was reported
to their team leader, the applicant and others aligned with him were
of the view that the matter
had not been properly dealt with. The
record suggests that other members of the team also had work related
problems which had not
been properly resolved. This is evident from
the testimony of the applicant, as well as his witnesses at the
arbitration, Mr. Zungu
and Mr. Madlala. On 10 September 2009, the
group leader informed the senior manager, Mr. Whitehead, that the
applicant and other
members of the shift were demanding to speak to
him regarding their problems and refused to return to work until a
meeting took
place. The underlying reason for the stoppage is that
the applicant, and others on the shift, refused to work with
Jacquere. At
this stage, the latter was off sick having received
treatment as a result of the trolley accident. Whitehead was unable
to meet
with the applicant and his colleagues immediately due to
another meeting which he was scheduled to attend, and enlisted the
assistance
of Mr. Madlala, a full time shop steward, in an attempt to
get the employees back to work. Eventually Whitehead met with the
employees,
who were represented by the applicant and his colleague
Mr. Zungu. It is this meeting which gave rise to the charges against
the
applicant. Whitehead stressed at the arbitration, that the work
stoppage embarked on by the applicant and the others on the shift,
had the potential for disruption, as without chassis’ being
manufactured, the entire assembly plant would grind to a halt.
[3] According to
Whitehead, when he intervened to meet with the group of employees who
had stopped working, they were represented
by the applicant and Mr.
Zungu. The rest of the group remained in the background. At this
time, Whitehead instructed the applicant
to return to work and
undertook to address the issues at a later stage. It is evident from
the record that the discussion with
Whitehead focused on the problems
with Jacquere. When Whitehead responded that Jacquere was not at work
and there was no reason
to be fearful of him, it was perceived that
he was not receptive of their complaint. The applicant then accused
Whitehead of not
wanting to assist in resolving the problem and spoke
to him in a raised voice, then began shouting and raising his finger
at him
in the process. The evidence of Whitehead indicates that he
was about a half meter away from the applicant at the time and if the
applicant were any closer, according to Whitehead, his actions could
have constituted an assault. Throughout this time, Zungu stood
alongside the applicant. The matter was reported and after a shop
steward was called to the scene the applicant and his colleagues
returned to work.
[4] During the course of
the interaction between Whitehead and the applicant, it is important
to note that according to Whitehead,
the applicant accused him of
‘
not respecting the union’
. The third respondent
considered this allegation in a very serious light as NUMSA is the
recognised union at the plant. Mr. Maeso,
who appeared for the third
respondent, submitted that such an allegation by the applicant could
have the effect of potentially
dampening relations between the union
and the third respondent. The accusation could also lead to a lack of
respect by the employees
for a manager, on the assumption of him
being disrespectful of the union. This in turn could lead to a
refusal to carry out instructions
or instead of only taking
instructions from a shop steward. Eventually, with the assistance of
a shop steward, the situation was
diffused with arrangements for a
meeting between Zungu, the applicant and Whitehead to take place
later in the day. However, the
applicant and Zungu failed to attend
the meeting, alleging that they were unhappy with the venue.
[5] Against this
backdrop, both the applicant and Zungu were charged on 18 September
2009, found guilty and eventually dismissed.
At the time of the
applicant’s arbitration, Zungu’s matter at the CCMA was
still part-heard. The commissioner accepted
Whitehead’s
evidence that he had instructed the applicant and others in his group
to return to work. The commissioner rejected
the applicant’s
version that Whitehead had informed the group that they could remain
in a smoking area, as improbable. Mr.
Maeso further submitted that
the explanation of the applicant is even more improbable in light of
the urgency with which they were
asked to return to work, given that
the assembly of the chassis component was crucial to the final number
of vehicles finally assembled.
In weighing up the versions of the two
parties, the commissioner preferred the version of the company’s
witnesses to that
of the applicant. On review before this Court, the
applicant contended that the commissioner committed a gross
irregularity in
rejecting his version regarding the issues of
substantive fairness, as well as his finding that despite the delay
in the holding
of the disciplinary enquiry, there had nonetheless
been no basis to conclude that the dismissal was procedural unfair.
[6] Ms Gqoba, a union
official who appeared on behalf of the applicant, confined her
argument to two discreet issues. First it was
contended that the
commissioner’s conclusion that despite the delay in the holding
of the enquiry the dismissal was procedurally
fair, was not a
decision that a reasonable commissioner could arrive at under the
same circumstances. The second argument was that
the commissioner’s
decision to reject the evidence of the applicant was unreasonable for
reasons set out in
Sidumo
v Rustenburg Platinum Mines Limited & others
1
.
I shall deal with each ground separately.
[7] It was accepted by Mr
Maeso that ordinarily, a disciplinary hearing should follow without
undue delay after the issuing of the
charge sheets and the incident
which forms the subject matter of the enquiry. In analysing the
evidence on this aspect, the commissioner
noted the following:
‘
Dealing with
the issue of the respondent waiting a year to release the outcome of
the disciplinary hearing I have considered that
the applicant was on
paid suspension.
No evidence was led dealing with the
nature of prejudice and therefore I can find no prejudice sufficient
to amount to procedural
unfairness.’
[8] Ms Gqoba submitted
that the applicant had been prejudiced by the delay in finalising the
disciplinary proceedings. The exhibits
placed before the Court reveal
that the applicant was charged with offences allegedly committed on
10, 15 and 17 September 2009.
He was placed on suspension with full
pay on 18 September 2009 and at the same time was handed a notice to
attend a disciplinary
enquiry on a date to be advised. It would
appear that the enquiry commenced on 27 November 2009 and a decision
culminating in the
applicant’s dismissal only eventuated on 14
September 2010. I was advised that during the entire period between
the applicant
being charged until he was informed of his eventual
dismissal – some twelve months after the incident giving rising
to the
charge – he remained at home in a state of uncertainty
as to whether he would have any form of employment with the third
respondent or whether he should spend his time trying to secure
alternative employment in the event that he was dismissed. One must
infer from the record at the arbitration that the applicant did not
manage to secure employment after his dismissal as he was unemployed
at the time of the arbitration.
In his evidence in chief,
the third respondent’s only witness, Mr. Whitehead, was asked
about the union’s complaint
that there had been an undue delay
between the charging of the applicant and the date when the decision
was finally issued. Whitehead
was asked whether there was anything
“
sinister”
about the delay. In his response he
stated the following
‘
No, one of
the problems is the shift work there’s no HR present on
nightshifts. So, every second week we can do the hearings
with the HR
present. And also a couple of doctor’s certificates were
submitted resulting in postponements in the case.’
[9] Under cross
examination Whitehead was asked about the delay. The response was the
following
‘
Mr.
Motaung
:
I’ll come back to that question. You are saying that there has
been a delay in prosecuting this matter internally due to
some
delays. Can you ever identify those postponements that you said took
place between September 2009 and September 200[9]10?
Mr. Whitehead
: The shift work
is one of the problems because all of the people who were involved
were on nightshift together. The shift work
was a concern and also
there were one or two doctor’s certificates submitted on the
days the hearings were scheduled to proceed.
Mr. Motaung
: Who handed in sick
notes?
Mr. Whitehead
: If I recall Mr.
Zungu was one of the guys.
Mr. Motaung
: And others?
Mr. Whitehead
: Another was more
than one incident of sick notes being submitted but I cannot tell you
who and what dates.’
The record further
reveals that Whitehead could not recall whether the applicant handed
in a sick note during this period. He further
testified that Zungu’s
absence delayed the holding of the enquiry as Zungu was the
applicant’s material witness. Whitehead
further stated that as
most of the witnesses worked night shift, it was possible for an
enquiry to be convened only for two weeks
within a month.
[10] Ms Gqoba relied on
the decision in
Avril
Elizabeth Home for the Mentally Handicapped v Commission for
Conciliation, Mediation & Arbitration & others
2
in
support of her argument that the delay in providing the applicant
with a decision after the holding of an enquiry,
constituted
a procedural irregularity. Van Niekerk AJ noted
3
‘
To
some extent, chapter VIII of the
Labour
Relations Act represents
a
codification of the jurisprudence that preceded it. The Act itself is
silent on the content of any right to procedural fairness,
it simply
requires that an employer establish that a dismissal was effected in
accordance with a fair procedure. The nature and
extent of a right to
fair procedure preceding a dismissal for misconduct is spelt out in
specific terms in the Code of Good Practice:
Dismissal in schedule 8
to the LRA.’
[11] In his article
“
Right
to a Hearing before Dismissal” – Part 1
4
,
Prof Cameron (as he then was) noted that it was essential ingredient
of fairness that the employee be permitted the opportunity
to present
his case
‘
.
. .
effectively
since delay can lead to inadequate recall on the part of the employee
or to the unavailability of his witnesses. Moreover,
undue delay
between the occurrence of the alleged misconduct and the employer’s
disciplinary response blurs the impact of
corrective discipline.’
The facts in the matter
do not necessarily fit into the paradigm set out in the above two
instances. The delay complained of is
not that Mr. Gwala was charged
with misconduct
after
an undue delay but that the chairperson
of the enquiry, for reasons which are not entirely apparent, delayed
in rendering his decision.
Ms Gqoba conceded that the applicant
suffered no financial prejudice, nor was his memory impacted on by
the delay. The applicant
was notified that he was going to be
disciplined with misconduct on 18 September 2009, when he was also
placed on suspension with
pay. The enquiry proceeded in November
2009. There is no evidence to suggest that the applicant was
prejudiced in any manner, or
that he was prevented from calling
witnesses. Mr. Maeso also conceded that there had indeed been a
lengthy delay between the hearing
and the issuing of the final
sanction. However, he submitted that Whitehead’s version under
cross examination was left materially
intact and it was never the
applicant’s evidence that the delay in the issuing of the
decision had impacted on its fairness.
[12] Mr. Maeso further
contended that the commissioner properly considered the evidence
before him and applied his mind thereto
in arriving at a conclusion
that there had been no procedural unfairness. He submitted that
accordingly the decision of the commissioner
in this regard is a
decision that a reasonable decision maker, given the same
circumstances and evidence, would have reached.
Before
a court will interfere with an award on grounds of procedural
irregularity, the issue must be considered holistically to
determine
whether any procedural flaws were so gross and of such a nature to
justify such an interference.
5
After giving due
considerations to the grounds advanced by the applicant regarding
procedural unfairness, I find no reason to interfere
with the
conclusion arrived at by the second respondent, especially as the
applicant was unable to show as sign of prejudice occasioned
by the
delay, whether financially or in his ability to present his case.
[13] I now turn to the
grounds of attack dealing with the substantive fairness of the
decision of the commissioner. The thrust of
the argument advanced by
Ms Gqoba, was that the commissioner committed a gross irregularity by
accepting the uncorroborated version
of Whitehead and rejecting the
version of the applicant, which was corroborated by Mr. Zungu. On the
charge of gross insubordination
and gross insolence arising from
events on 10 September 2009, Whitehead gave direct evidence that the
applicant raised his voice,
while standing a half meter away from
him, and pointing his finger at his senior manager. Under cross
examination, Whitehead stated
that if the applicant had come any
closer to him during this encounter, it could have constituted an
assault. A reasonable inference
that could be drawn is that the
applicant was acting in a threatening manner towards his manager. The
applicant and his witnesses
denied any knowledge that he threatened
Whitehead as set out above,
or
that he had refused an instruction to return to work.
[14] The commissioner, in
analysing the two competing versions,
notes
that Whitehead’s evidence of the waving of the finger in his
(Whitehead’s) face and the comment that Whitehead
had no
respect for the union, “remained materially intact”. He
further stated of Whitehead’s version that it
was “given
in a clear and confident manner and was at no stage contradicted
under cross examination”. In contrast,
the commissioner weighed
up the evidence by the applicant, finding that the applicant changed
his version of events under cross
examination as to whether or not he
was in a smoking area at the time when approached by Whitehead. Mr.
Zungu, the applicant’s
witness, was evasive and simply refused
to provide answers to questions. Mr. Maeso further submitted that
Zungu’s evidence
should be discounted because he was in exactly
the same position as the applicant,
in
that he too,
had
been charged and dismissed for the same offences as the applicant.
The commissioner, on the evidence before him, proceeded to
make a
credibility finding in which he accepted, on a balance of
probabilities, the evidence of the third respondent as remaining
“intact and without contradiction”, compared to the
evidence of the applicant which he found had “fundamental
contradictions”.
[15] It was submitted by
Mr. Maeso that the commissioner’s decision to prefer the
version of the third respondent to that
of the applicant was
reasonable in light of the evidence, alternatively,
that his decision would
fall into the range of reasonable outcomes or an “area of
legitimate diversity”, that is, a
space within which various
reasonable choices may be made. Hence, the decision is reasonable,
even if it is not correct
or perfect.
6
[16] Having regard to the
evidence on record and the arbitration award, I am of the view that
the commissioner approached the matter
in the correct manner when
faced with two competing versions. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd
7
Ngcobo J stated that
‘
. . . where
a commissioner fails to have regard to the material facts, the
arbitration proceedings cannot in principle be said to
be fair
because the commissioner fails to perform his or her mandate. . . And
the ensuing award falls to be set aside not because
the result is
wrong but because the commissioner has committed a gross irregularity
in the conduct of the arbitration proceedings.’
[18] In dealing with
matters where an arbitrator is faced with two disputing versions, the
proper approach, as set out by Van Niekerk
J in
Sasol
Mining (Pty) Ltd v Ngqeleni NO & Others
8
is to conduct an
‘
. . .
assessment of the credibility of the witnesses, a consideration of
the inherent probability or improbability of the version
that is
proffered by the witnesses, and an assessment of the probabilities of
the irreconcilable versions before the commissioner.
As Cele AJ (as
he then was) observed in
Lukhnaji
Municipality v Nonxuba NO & others
[2007]
2 BLLR 130
(LC), while the LRA requires a commissioner to conduct an
arbitration hearing in a manner that the commissioner deems
appropriate
in order to determine the dispute fairly and quickly,
this does not exempt the commissioner from properly resolving
disputes of
fact when they arise.’
9
It is clear the
arbitrator did not do this.
‘
In
SFW
Group Ltd & another v Martell et Cie & others
2003 (1) SA 11
(SCA), the proper approach to the resolution of
factual disputes was explained by the Supreme Court of Appeal (per
Nienaber JA)
in the following terms at para 5:
On the central issue, as to what the
parties actually decided, there are two irreconcilable versions. So,
too, on a number of peripheral
areas of dispute which may have a
bearing on the probabilities. The technique generally employed by
courts in resolving factual
disputes of this nature may conveniently
be summarised as follows. To come to a conclusion on the disputed
issues a court must
make findings on (a) the credibility of the
various factual witnesses; (b) their reliability; and (c) the
probabilities. As to
(a), the court’s finding on the
credibility of a particular witness will depend on its impression
about the veracity of the
witness. That in turn will depend on a
variety of subsidiary factors, not necessarily in order of
importance, such as (i) the witness’
candour and demeanour in
the witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv)
external contradictions with
what was pleaded or put on his behalf, (v) the probability or
improbability of particular aspects
of his version, (vi) the calibre
and cogency of his performance compared to that of other witnesses
testifying about the same incident
or events. As to (b), a witness’
reliability will depend, apart from the other factors mentioned under
(a) (ii), (iv) and
(v) above, on (i) the opportunities he had to
experience or observe the event in question and (ii) the quality,
integrity and independence
of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party’s
version on each of the disputed
issues. In the light of the assessment of (a), (b) and (c) the court
will then, as a final step,
determine whether the party burdened with
the onus of proof has succeeded in discharging it. The hard case,
which will doubtless
be a rare one, occurs when a court’s
credibility findings compel it in one direction and its evaluation of
the general probabilities
in another. The more convincing the former,
the less convincing will be the latter. But when all factors are
equipoised probabilities
prevail.
’
10
[16] The arbitration
award clearly records that the commissioner made a credibility
finding in favour of the version of the third
respondent, despite it
being the evidence of a single witness. The commissioner took into
account that Whitehead was consistent
in his version of events as to
what happened on 10 September 2009, whereas the applicant’s
testimony contained instances
where he refused to make concessions
where he would have been expected to, or refused to give a version of
events when called upon
to do so. An example of this is when the
applicant was asked whether a work stoppage would compromise
production. Although he was
not facing a charge of participating in
an illegal work stoppage, he responded that “I don’t
know. I don’t remember.”
Similarly, when questioned
regarding the version of Whitehead’s instruction to return to
work, the applicant proved to be
evasive in answering questions. His
witness, Mr. Zungu, did not aid his cause, especially as the employer
argued that he had a
self interest in supporting the applicant.
[17] I am satisfied that
the commissioner reached the factual conclusions he did based on the
evidence placed before him. Mlambo
JP’s comments in
Afrox
Healthcare Limited v Commission for Conciliation, Mediation &
Arbitration & others
11
are instructive
‘
The fact of
the matter is that the reasonable decision maker yardstick crafted in
Sidumo
,
viewed in proper context, is none other than that in the absence of a
“rational objective basis” between the decision
arrived
at and the material placed before the decision maker, the relevant
decision is clearly not one which a reasonable decision
maker would
have arrived at
.
12
[18] I accordingly make
the following order:
The application is
dismissed;
No order as to costs.
_______________________
Chetty, AJ
Acting Judge of the
Labour Court
Appearances
:
For the Applicant: Ms P
Gqoba, union official.
For the Third Respondent:
Mr. M G Maeso.
Of Shepstone & Wylie
Attorneys
1
(2007)
28 ILJ 2405 (CC).
2
(2006)
27 ILJ 1644 (LC).
3
Above
at 1651C-E.
4
(1986)
7 ILJ 183, at page 200.
5
Mutual
Construction Company Tvl (Pty) Ltd v Ntombela
NO & others
(2010) 5 BLLR 513
(LAC), para 41.
6
‘
The
future of Judicial Review in South African administrative law”,
C Hoexter,
(2000) 117 SALJ 484
at 510.
7
Above
1, at para 268.
8
(2011)
32 ILJ 723 (LC).
9
Above
at 727C-F.
10
Above
8, at 727E-728B.
11
(2012)
33 ILJ 1381 (LAC).
12
Above,
1391 at para 21.