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[2013] ZALCD 12
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Albion Services CC v Commission for Conciliation Mediation and Arbitration and Others (D 275/10) [2013] ZALCD 12 (21 May 2013)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, DURBAN
JUDGMENT
Reportable
Case no: D 275/10
In the matter between:
ALBION SERVICES CC
..................................................................................
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
..........................................................................
First
Respondent
COMMISSIONER KESHREE KEMI N.O.
......................................
Second
Respondent
NUM obo MNGUNI
...........................................................................
Third
Respondent
Heard: 30 April 2013
Delivered: 21 May 2013
Summary: Review of award - The
ultimate principle upon which a review is based is justification for
the decision as opposed to it
being considered to be correct by the
reviewing court -
incite – meaning
of - one who reaches and seeks to influence the mind of another to
the commission of a crime or misconduct
– award reasonable
.
JUDGMENT
___________________________________________________________________
CELE J
Introduction
[1] This is an application in terms of
section 145 of the Act
1
to review and set aside an arbitration
award issued by the second respondent under case number KNRB727-09 on
17 February 2010. The
third respondent opposed the application acting
on behalf of its member, Mr Mnguni, the erstwhile employee of the
applicant.
Factual Background
[2] Mr Mnguni was in the employ of the
applicant from 1 April 2004. In 2009, he held the position of a
Metallurgical Supervisor
and he also served in the capacity of a shop
steward affiliated to the third respondent, which at the material
times had not yet
gained recognition at the workplace of the
applicant. He worked with the Service and Maintenance Manager Mr
Johan Botha, the Acting
Team Supervisor Mr Bheka Ntuli, the Plant
Supervisor Mr Aaron Khumalo and the applicant’s Director Mr
Richard Ntuli. The
employees were divided into two groups referred to
as team A and B.
[3] On 25 and 26 March 2009, there was
an unprotected strike at the RBM premises of the applicant.
Management of the applicant addressed
the workforce on the
implications of taking part in the strike. One of the employees, a Mr
Mathenjwa, was then issued with a notice
to attend a disciplinary
hearing. According to the applicant, Mr Mnguni tore the notice given
to Mr Mathenjwa. Mr Mnguni then called
a workers’ meeting to be
held in the late afternoon on 27 March 2009. It is the events which
occurred in that meeting which
is the subject of this application.
The applicant subsequently charged Mr Mnguni with two acts of
misconduct of incitement to strike
and insolence. In respect of
incitement to strike he was found guilty and the internal
disciplinary chairperson pronounced a sanction
of dismissal. The
applicant dismissed him on 17 April 2009.
[4] An unfair dismissal dispute was
then referred by Mr Mnguni for conciliation and later for arbitration
by the first respondent
which appointed the second respondent to
arbitrate it. In her award, the second respondent found that Mr
Mnguni’s dismissal
was substantively and procedurally unfair in
that the applicant had failed to prove incitement by Mr Mnguni and in
that his dismissal
was not conducted fairly. She awarded him
compensation to the tune of 6 months’ salary in the sum of R 26
518, 08.
The issue
[5] Parties are in dispute about the
actual utterances of Mr Mnguni in the meeting of 27 March 2008 and
whether such utterances
amounted to incitement. The evidence of the
applicant to sustain the charge rested mainly on that of Messrs
Mkhize and Khumalo
who attended the meeting of 27 March 2009.
Chief findings of the second
respondent
[6] The second respondent found that
the balance of probabilities favours Mr Mnguni since the applicant’s
second and third
witnesses made contradictory statements and
contradicted each other materially and there was no evidence that
they were in fact
going to strike on instigation of Mr Mnguni and
that the strike was averted by management. Mr Mnguni was found to
have been clear
and consistent in his testimony and there was no
reason to doubt his credibility as his evidence was supported and
corroborated
by his first witness, whose version she accepts.
[7] She was not satisfied that it was
Mr Mnguni who arranged the meeting in question or made the
arrangements for the employees
to leave early. According to the
second respondent the crux of the matter was what transpired at the
meeting. From all of the evidence
presented she was not satisfied
that the Mnguni was proved to be guilty.
[8] It appeared to the second
respondent that it was the chairperson of the enquiry that dismissed
Mr Mnguni and she found herself
not satisfied that the applicant
followed its own code as the chairperson of an enquiry did not have
the authority to dismiss an
employee because such authority lay with
the employer. She found the dismissal of Mr Mnguni to have been
procedurally and substantively
unfair.
Evidence
[9] The applicant called four
witnesses at the arbitration. However, the first and fourth
witnesses, who were management members,
did not attend the meeting
where Mr Mnguni was alleged to have incited employees. The case of
the applicant, therefore, depended
on the evidence of the second and
the third witnesses, Messrs Mkhize and Khumalo. The relevant evidence
of Mr Mkhize pertaining
to whether Mr Mnguni incited a strike lay in
the following version recorded by the second respondent:
2
Q:
‘Did the Applicant personally talk to you at the meeting? Did
he address the crowd?”
A:
Yes
Q:
And he wanted to go on strike on Monday?
A:
Yes.
....
Q:
In other words according to your statement the [sic] was a question
as to what the people will think about Nathi and Mathenjwa.
There was
a question?
A:
That question was whether we will stop on Monday or what.’
[10] Mr Khumalo was asked to and he
did confirm that the written statement he made in this matter was
correct. Under cross-examination
he confirmed that his statement was
not correct in a number of respects. He also confirmed under
cross-examination that nowhere
in his statement had he stated that Mr
Mnguni said the workers were to go on strike. It is apparent from the
following line of
questioning and his responses thereto that he did
not believe Mr Mnguni had invited the workers to strike:
3
‘
Q:
The next phrase of your statement says he asked what was Team B
thinking, or asked what was the view of Team B. In your view
does
that mean that people must strike?
A:
That was a question from the Applicant.
Q:
Confirm that it does not mean that people must strike?
A:
Yes’
[11] In respect of the question of
authority to suspend or dismiss, it remained common cause that the
applicant’s disciplinary
code provided that only the
Chairperson of its executive committee had the power to impose
disciplinary sanctions. Mr Botha, who
was the first applicant’s
witness, conceded that there was no provision in writing in the code
allowing such authority to
be transferred to another individual. It
was the applicant’s version that it was Mr Botha who dismissed
Mr Mnguni and that
he was empowered to do so because Mr Ntuli
delegated the powers conferred on him in the applicant’s
disciplinary code to
Botha. Mr Ntuli, as the fourth witness for the
applicant, said that the chairperson of the disciplinary enquiry
merely made a recommendation
and it was up to Mr Botha to decide
whether he wished to follow that recommendation. Mr Mnguni challenged
the fairness of his dismissal.
Grounds for review
[12] The applicant submitted that
there was no reasonably sustainable fit between the material
available before the second respondent
and the conclusion that she
reached in finding that the dismissal was unfair when it was the
evidence of Mr Botha that the disciplinary
code provided for
dismissal as a sanction for incitement to strike. Mr Mnguni himself
said that he had asked team B what their
views were on the fact that
team A was striking and what they intended to do about it. Mr Mnguni
said that he did not make a request
to Bheka or anyone to have a
meeting with the workers which contradicted the evidence he gave at
the enquiry. Mr Mnguni’s
evidence that the only issue discussed
with the employees at the meeting was regarding the outcome of the
meeting he had had with
management on the issue of a monetary
increase of R 2.00 directly contradicted his evidence at the enquiry.
[13] The submission was further that
in the context of the evidence that on 26 March 2009 management spoke
to the employees, including
Mr Mnguni about the consequences of the
illegal strike on 25 and 26 March 2009; and as a result of the
meeting there was an agreement
by both teams A and B that they would
embark on an unlawful strike on 30 March 2009. It was clear that Mr
Mnguni expressly, alternatively
tacitly, instigated the strike as he
certainly took no steps to avert a potential unlawful strike. It was
submitted in the circumstances
that the findings of the second
respondent were findings that a reasonable decision maker could not
reach.
Grounds opposing the review
application
[14] The union submitted that the
second respondent quite rightly took, as her point of departure, the
applicant’s version
of what occurred at the meeting. The
applicant’s first witness, Mr Botha was said to lack personal
knowledge of Mr Mnguni’s
alleged conduct at the meeting on 27
March 2009. Similarly, the applicant’s fourth witness lacked
personal knowledge of the
alleged conduct at the meeting on 27 March
2009 as both witnesses admittedly did not attend that meeting.
[15] The applicant’s case was
therefore relied on the testimony of its second and third witnesses,
Mr Mkhize and Mr Khumalo.
The sum total of Mr Mkhize’s evidence
in chief was described as pertaining to whether Mr Mnguni incited a
strike and was
contained in two leading questions to which Mkhize
replied “yes”. Quite apart from the fact that these were
leading
questions, the submission was that the answers did not
establish whether Mr Mnguni made any attempt to persuade the “crowd”
to go on strike on Monday of 30 March 2009. Under cross examination,
Mr Mkhize acknowledged that he had contradicted his witness
statement.
[16] Mr Khumalo’s evidence in
chief began by him reading his statement in isiZulu, which was then
interpreted. The second
respondent recorded that she was uncertain
whether the interpretation was correct. The submission was that the
applicant, in its
evidence-in-chief, curiously failed to ask Mr
Khumalo whether he confirmed his statement under oath. Nor was Mr
Khumalo directly
asked about the content of Mr Mnguni’s speech
on 27 March 2009.
[17] It was contended that under
further cross-examination, Mr Khumalo conceded that Mr Mnguni at the
meeting also addressed about
“the incident of R2.00”, and
that he had failed to mention that in his earlier testimony. He
acknowledged that it was
important for the workers to be briefed
about that issue. Mr Mkhize stated that after Mr Mnguni spoke, some
workers replied. Mr
Khumalo was said to have directly contradicted
the evidence of Mr Mkhize in this regard when he stated that only Mr
Mnguni spoke
and that no-one replied to his speech. In the context of
a charge of incitement to strike, it was submitted that this was a
material
discrepancy.
[18] In the premises, it was submitted
that the second respondent was justified in finding that the
applicant’s second witness
made two contradictory statements,
one in writing and one at the disciplinary hearing. The applicant’s
third witness also
made two contradictory statements, also one in
writing and one at the disciplinary hearing. Those two witnesses were
said not to
have corroborated each other’s version and in fact
contradicted each other materially.
[19] Furthermore, the submission was
that it was apparent from the testimony of the applicant’s
witnesses at the arbitration
that the applicant’s case went no
further than Mr Mnguni allegedly telling the workers that Team A was
going to strike on
Monday 30 March 2009 and wanting to know what Team
B was going to do, as confirmed by Mr Myeni, a witness of Mr Mnguni.
This version
was duly noted by the Commissioner in her award. The
union said that it was apparent that the Commissioner,
notwithstanding concerns
over the credibility of Mr Mkhize and Mr
Khumalo as witnesses, gave consideration to this version at face
value. She concluded
that the applicant’s version conveyed no
more than that, Mr Mnguni was not spurring the workers to strike or
rousing them
to strike. Neither was he provoking them or instigating
them. He was merely trying to ascertain their views.
[20] It was submitted that at best for
the applicant, on its own version, Mr Mnguni’s conduct could be
construed, perhaps,
as raising the curiosity of the workers about the
possibility of going on strike. That, it was submitted, did not
amount to incitement.
The thinness of the applicant’s case in
this regard was said to be summed up by the applicant’s rather
equivocal submission
at the end of paragraph 7 of its heads of
argument:
‘
It
is clear that the Third Respondent expressly, alternatively tacitly,
instigated the strike – he certainly took no steps
to avert a
potential unlawful strike.’
[21] It was submitted that, in the
premises, the second respondent’s conclusion that Mr Mnguni was
not guilty of incitement
to strike was entirely reasonable and
justifiable on the evidence placed before her.
[22] The question of authority to
suspend or dismiss was raised in the cross-examination of Mr Botha.
It was common cause that the
applicant’s disciplinary code
provided that only the Chairperson of its executive committee had the
power to impose disciplinary
sanctions. Furthermore, Mr Botha
conceded that there was no provision in writing in the code allowing
such authority to be transferred
to another individual. The second
respondent concluded that as it appeared it was the chairperson of
the disciplinary enquiry who
imposed the sanction, the applicant had
not complied with the strict provisions of its disciplinary code and
hence had not complied
with its disciplinary procedure.
[23] It was submitted that the finding
made on the power to dismiss was reasonable, but that even if the
Court did not agree that
it formed a reasonable basis to find the
dismissal to be procedurally unfair, then nonetheless facts were
placed before the second
respondent justifying a finding of
procedural unfairness.
Evaluation
[24] Subject to the grounds of review
provided for in section 145 of the Act, the test in an application
for review is whether:
1. the decision of the second
respondent is one that a reasonable decision maker could not reach;
and
2. there is a reasonably sustainable
fit between the evidence and the outcome
4
.
[25] In
Bestel
v Astral Operations Ltd,
5
the Court commenting on an appropriate
approach to review applications said that:
‘
[T]he
ultimate principle upon which a review is based is justification for
the decision as opposed to it being considered to be
correct by the
reviewing court; that is whatever this Court might consider to be a
better decision is irrelevant to review proceedings
as opposed to an
appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected.’
[26] With these principles in mind,
the evidence led at arbitration falls to be considered for a
determination whether Mr Mnguni
was proved to have committed the
misconduct of inciting members of Team B to engage in a strike. The
Act, as amended does not have
the meaning of “incite”. Mr
Christison appearing for the third respondent, and to whom I am
indebted, drew Court’s
attention to a decision of the then
Appellate Division, now the Supreme Court of Appeal in the case of
National Union of
Metalworkers of SA and Others v Gearmax (Pty) Ltd
6
where the Court considered the meaning
of ‘incite’ in a labour context and it said:
‘
Incite'
comprehends something less. The latter word received judicial
interpretation in the case of
Dunlop
SA Ltd v Metal and Allied Workers Union and Another
1985 (1) SA 177
(D) ((1985) 6 ILJ 167 (D)), an action dealing with
this section of the Act. Booysen JA adopted the reasoning of Holmes
JA in
S
v Nkosiyana and Another
1966 (4) SA H 655 (A), where the components of 'incitement' were
considered. The learned Judge in the Natal court accepted the
definition of Holmes JA and quoted his very words (at 188E-F) in the
following passage:
'Counsel
were
ad idem
that an "inciter" in criminal law is one who reaches and
seeks to influence the mind of another to the commission of
a crime.
The machinations of criminal ingenuity being legion, the approach to
the other's mind may take various forms such as suggestion,
proposal,
request, exhortation, gesture, argument, persuasion, inducement,
goading, or the arousal of cupidity. The list is not
exhaustive. The
means employed are of secondary importance; the decisive question in
each case is whether the accused reached and
sought to influence the
mind of the other person J towards the commission of a crime.'
In
the appeal before us, counsel's arguments were based upon an
acceptance of the correctness of that definition. It is, in my view,
an acceptable definition for the purpose of this appeal, which,
therefore, turns upon whether it was established that the union
'reached and sought to influence the minds' of its members towards
the refusal by them to perform overtime work.’
[27] Accordingly, and following from
the decisions hereinabove cited, it has to be determined whether Mr
Mnguni was proved by the
applicant to have acted in such a manner
that he ‘reached and sought to influence the minds’ of
his fellow employees
in Team B to join Team A in a strike.
The
means employed by him are to remain of secondary importance. The
evidence of Messrs Khumalo and Mkhize, who attended the meeting,
is
decisive in this regard.
It has to be accepted from the
recorded evidence that Mr Mnguni told the workers that Team A was
going to strike on Monday 30 March
2009 and he wanted to know what
Team B was going to do.
[28] With all the inherent
improbabilities there are in the evidence of the applicant’s
witnesses, the version of the applicant
is not capable of any other
version beyond what is here accepted. By merely asking Team B what
they would do and without any suggestion
thereto, it is difficult to
conceive how Mr Mnguni could be said to have acted in such a manner
that he ‘reached and sought
to influence the minds’ of
his fellow employees in Team B to join Team A in a strike.
[29] By calling the meeting and
raising the issue that Team A was going to strike, Mr Mnguni created
an opportunity to incite Team
B, but he did no more thereafter. If he
wanted to incite the employees he had the opportunity but he did not
use it. In other words,
he made the means to influence the employees
but failed to take advantage of them. The means therefore became of
secondary importance.
The scenario he created fell shorter than the
one where a person creates a dangerous situation and then acquires a
legal duty to
prevent any other person from being harmed thereby. The
second respondent concluded that Mr Mnguni’s version conveyed
no
more than that he was not spurring the workers on to strike or
rousing them to strike. Neither was he provoking them or instigating
them.
7
He was merely trying to ascertain
their views, for whatever purpose he had in mind.
[30] In the premises, it is found that
the second respondent’s conclusion that Mr Mnguni was not
guilty of incitement to strike
was reasonable and justifiable on the
evidence placed before her. Further, her finding that the dismissal
of Mr Mnguni was substantively
unfair is reasonable and is not liable
to be set aside on review.
[31] In respect of the question of
authority to suspend or dismiss, Mr Botha was the prosecutor at the
disciplinary enquiry. On
the version of the applicant, it was Mr
Botha and not the chairperson of the disciplinary enquiry who decided
on and imposed the
sanction of dismissal, thus being not only a
prosecutor but also and ultimately, a judge. In the context of a
substantial, formal
disciplinary enquiry, where both employer and
employee lead evidence, purportedly for a decision to be made by an
objective decision-maker,
such enquiry can only be a sham.
[32] The second respondent concluded
that as it appeared it was the chairperson of the disciplinary
enquiry who imposed the sanction,
the applicant had not complied with
the strict provisions of its disciplinary code and hence had not
complied with its disciplinary
procedure. This finding is reasonable.
A reasonable suspicion of bias was unavoidable, even if in fact no
bias was present. The
procedure followed in dismissing Mr Mnguni did
not accord with the natural principles of justice and was grossly
flawed. The dismissal
was procedurally unfair.
[33]
In
conclusion
,
The review application
in this matter is dismissed.
No costs order is made.
_______
Cele J
Judge of the Labour Court of South
Africa
Appearances:
For the applicant: Adv. M.M. Posemann
Instructed by: Riaan Kruger Attorneys
For the third respondent: Adv. A
Christison
Instructed by: PKX Incorporated
1
The
Labour Relations
Act No.66 of 1995
.
2
Commissioner’s
notes, page 23 and page 28.
3
Commissioner’s
notes: page 33.
4
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28 ILJ 2405 (CC) at para 110.
5
[2011]
2 BLLR 129
(LAC) at para 18.
6
(
1991)
12 ILJ 778 (A) at 782G-783A.
7
See
paragraph 29 of the award.