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[2013] ZALCD 28
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Richards Bay Coal Terminal v Commission for Conciliation Mediation and Arbitration and Others (D 547/2011) [2013] ZALCD 28 (1 October 2013)
Not Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Case
no: D547/2011
In the matter between:
RICHARDS
BAY COAL TERMINAL
.........................................................................
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
...............................................................
First
Respondent
SONJA
KILLEN N. O.
.............................................................................
Second
Respondent
SIYABONGA
TICHMAN MSWELI
..............................................................
Third
Respondent
Heard
:
13 August 2013
Delivered: October 2013
Summary: Application to review and set aside arbitration award.
Application dismissed.
JUDGMENT
GUSH J
The applicant in this matter applies to review and set aside the
award of the second respondent in which award the second respondent
held that the applicant’s dismissal of third respondent was
substantively unfair and ordered the applicant to reinstate
the
third respondent.
As its name suggests the applicant carries on business in Richards
Bay as an export terminal for coal.
The third respondent’s dismissal followed a disciplinary
enquiry that commenced on 2 August 2010 and continued on 16 August
2010. The allegations of misconduct that formed the subject of the
disciplinary enquiry were that the fourth respondent was guilty
of
sabotage and insubordination. The fourth respondent was found guilty
of the misconduct and dismissed. The fourth respondent
appealed
against his dismissal which appeal was unsuccessful.
The background to the circumstances leading to the charges of
misconduct is as follows:
a. The third respondent commenced employment with the applicant in
October 2000 and, at the time of his dismissal on 31 August
2010, was
employed by the applicant as a shift millwright earning approximately
R27,027 per month.
b. On 12 July 2010, the trade union to which the third respondent
belonged commenced industrial action over a dispute involving
wages.
c. Despite this, the third respondent reported for duty and "clocked
in" at 05H52:40 on 12 July 2010. The third respondent
was to
have worked a 12 hour shift commencing 06H00 to 16H00.
d. The evidence established that employees reporting for duty were
required to "swipe their card" when entering the shift
millwright office. This procedure records the times when an employee
enters the office. There was no requirement to similarly "swipe
a card” when leaving the office.
e. The third respondent was observed leaving the shift millwright
office by his colleague, Koekemoer, carrying cable cutters at
approximately 06H00. (“I can't say exact time, 2 minutes to or
a minute after 6, I can't say exactly."
1
)
Koekemoer was adamant that he was unable to recall the exact time. In
his evidence, Koekemoer explained that he had observed the
third
respondent carrying a pair of cable cutters and that cable cutters
were kept in the shift millwright office for the purposes
of cutting
cables.
f. At 06H02, the applicant’s control systems recorded a fault,
which later transpired to have originated from a cable having
been
cut and a "thumb pin" having been pushed into a cable.
g. Due to the ongoing industrial action on the 12 July 2010, the
third respondent left the applicant's premises at 10H00.
h. At 17H12 on 12 July 2010, the third respondent SMS’ed his
section manager, Derek Du Pavillon, with the following request:
‘
Sir
sorry the SMS. Honestly I do want 2 work that the problem is that I
can't work day shift as I will be seen as a rat and you
know things
can turn bad. If I can work nightshift that could help. You know I
love my work. Thankx. (sic)’
i. Du Pavillon replied as follows at 17H23:
‘
Hi
siya. I understand where u are coming from but unfortunately it is
too late for that as u left site today during your shift.
Nothing can
be done about it now except
try and
come to work as u should
.
Cheers Dereck. (sic)’
j. The third respondent reported for night duty on 12 July 2010.
k. The applicant after having investigated the incident involving the
damage to the cable and the SMS’s presented at the
third
respondent with a "Disciplinary Level 2 Enquiry –
Notification To Employee" in which notification the third
respondent was advised that the purpose of the enquiry was "to
hear the following charges against you: sabotage of RBC equipment
and
insubordination".
l. The charge of insubordination was based on the third respondent’s
actions in reporting for night duty disregarding the
SMS from Du
Pavillon that stated “try and come to work as u should”.
m. At the disciplinary enquiry the third respondent, on the charge of
sabotage, denied that he had anything to do with the cutting
of the
cable and that he had left the shift millwright office with the cable
cutters in order to break open the lock on his locker
as he had
misplaced his keys.
n. Following the disciplinary enquiry in respect of these allegations
respondent was found guilty of both counts of misconduct
and
dismissed.
The third respondent dissatisfied with his dismissal referred a
dispute to the first respondent concerning his dismissal and
after
an unsuccessful attempt at conciliation the dispute was referred to
arbitration. The arbitration commenced on 22 February
2011 and was
finalised on 17 May 2011. The second respondent’s arbitration
award was handed down on 3 June 2011 wherein
the second respondent
came to the following conclusion:
‘
The
dismissal of the [third respondent], Mr S R Msweli, was substantively
unfair.
The [applicant], Richards Bay
Coal Terminal, is ordered to reinstate the [respondent], Mr S R
Msweli, in his previous position as
shift millwright on conditions no
less favourable than those that governed his employment at the time
of his dismissal.’
It is this award that the applicant seeks to review and set aside
and that the award be substituted with a ruling that the dismissal
was procedurally and substantively fair; or if the dismissal is
found to be substantively unfair that the third respondent be
awarded compensation and not reinstatement; or that the award be set
aside and be referred back to the first respondent to be
heard
de
novo
.
At the outset, it was necessary to deal with the issues related to
condonation for the late filing of various pleadings. The
first
issue related to the applicant’s late filing of its
supplementary founding affidavit, the second issue related to
the
third respondent’s late filing of his answering affidavit. It
is clear that both the applicant and the third respondent
failed to
diligently comply with the time limits provided for the rules of
this Court and ultimately applied for condonation
for the late
filing of the pleadings. I am satisfied in the circumstances that in
both instances condonation should be and is
granted.
The record of the arbitration proceedings including evidence
relating to polygraph testing. The applicant indicated that it did
not intend relying on nor referring to the polygraph test as any
basis or ground for reviewing the award.
In her award, the second respondent correctly points out that she
was required to determine whether the third respondent’s
dismissal was substantively and procedurally fair and that the
applicant bore the
onus
of proving this on a balance of
probabilities.
As far as procedural issues were concerned second respondent
concluded that the applicant had complied with the basic
requirements
of fairness and that from a procedural point of view
the third respondent had been treated fairly
In approaching the issue of substantive fairness, the second
respondent correctly sets out (with reference to appropriate case
law) the test applicable to the burden of proof in dismissal matters
and particularly where a party relies on circumstantial
evidence.
In this regard, the second respondent records that the applicant
relied on the evidence of Koekemoer and Du Pavillon who:
a. saw the third respondent leaving the shift millwright office
carrying a pair of cable cutters;
b. that the witness Koekemoer could not say exactly what time the
third respondent left the office. (The record of Koekemoer’s
evidence reveals that when dealing with the time the third respondent
left the office he said the following: "I can't say
exactly what
time"
2
and later under cross examination: "exact time, I can't say
exact time, 2 minutes to or a minute after 6, I can't say exactly."
3
)
c. confirmed that the cable had been cut at 06h02 as the system had
recorded the break in the cable at this time;
d. saw the third respondent returning to the office at 06H06;
e. that it took seven minutes to get to and from the shift millwright
office and scene of the "sabotage";
f. that the cable cutter was later found in the office with strands
of fibre attached to it but that no evidence was led that it
was the
same fibre that formed part of the cable that had been cut; and
g. that as the third respondent was a member of the union that had
embarked on strike he had the motive to sabotage the applicant
by
cutting the cable. There was no mention of the third respondent
having pushed the thumb tack into the cable or that he had been
responsible for this as well.
The third respondent gave evidence at the arbitration and called
witnesses. The third respondent denied having sabotaged the
cable
and explained that he had left the Millwright office after 06h00
with the cutters intending to cut open his locker.
The second respondent in her analysis of the evidence on the charge
of sabotage expresses the view that she could not find that
the
third respondent’s explanation regarding his possession of the
cable cutter was not reasonably possible and that there
was no basis
upon which she could simply reject it.
As for the applicant’s evidence, she said the following:
‘
I am
not “convinced that the [applicant’s] evidence is strong
enough to find that it is more probable than not that
it was the
[third respondent] who cut the cable on the day in question. I say
this because there is too much doubt.’
4
On the charge of insubordination, the second respondent,
unsurprisingly given the facts and the evidence, concluded "on
the evidence before me I cannot find that the [third respondent]
disobeyed an instruction”
5
the applicant’s grounds of review are essentially that the
second respondent:
a. misdirected herself by her failure to resolve the factual
disputes, thereby committing a gross irregularity;
b. failed to apply her mind to the real issues before her and to the
material evidence
c. failed to take account of the overall circumstances, the material
evidence placed before her; and took into account irrelevant
partly
speculative evidence in arriving at a decision; and
d. came to a decision that is “not a justifiable decision that
a reasonable decision maker would have made, particularly
in the
light of the totality of evidence presented by the company together
with the conclusions to be drawn there from.”
6
There is, however, nothing in the second respondent’s award to
suggest that she failed to take into account the evidence
presented
at the arbitration or the "overall circumstances" let
alone that she misdirected herself or committed a gross
irregularity.
From the record, it is clear that the applicant was unable to adduce
any direct evidence that the third respondent was in fact
guilty of
the sabotage.
The third respondent offered what the second respondent referred to
as explanation that was reasonably possibly true in response
to his
possession of the cable cutters. Aside from this all the applicant
offered regarding the third respondents guilt was that
because the
third respondent was a member of the trade union that had embarked
on industrial action this was the motive for the
sabotage. The
applicant led no evidence to substantiate the conclusion that it was
the third respondent that had resorted to
sabotage. This must be
seen in the light of the fact that the third respondent had
continued on duty until 10h00 that day and
had reported for night
shift that evening, that incidently had led to the insubordination
charge
There was no evidence to suggest that the industrial action was
accompanied by any other acts of sabotage or any untoward behaviour
at all. In the absence of any direct evidence, it was incumbent upon
the applicant to adduce sufficient circumstantial evidence
to
justify the conclusion that the only inference to drawn was that the
third respondent was guilty of cutting the cable.
The second respondent, in her award, set out in detail the evidence
adduced at the arbitration and a lucid analysis thereof.
There is no
doubt that the applicant was relying on circumstantial evidence to
establish the third respondent’s guilt and
I am not persuaded
that the second respondent’s handling of this evidence was in
any way irregular or constituted misconduct.
Not only is it clear that the second respondent committed no
misconduct nor gross irregularity in relation to her duties in the
conduct of the arbitration but her conclusion that the applicant did
not discharged the
onus
is reasonable taking into account the
evidence adduced at the arbitration.
The applicant’s founding affidavit and argument suggest that
the applicant is appealing against the decision of the second
respondent as opposed to reviewing it, despite couching it grounds
of appeal in the nomenclature of a review.
Not only is the second respondent’s conclusion that the
applicant failed to establish on a balance of probabilities that
the
third respondent was guilty of sabotage a decision entirely
justified by the evidence, the second respondent’s award
is
most certainly one that a reasonable decision-maker could arrive at
considering the material placed before her. The award
satisfies in
all respects the test laid out by the Constitutional Court and
referred to the judgment in the SCA in the matter
of
Edcon v
Pillemer
viz.
‘
Reduced
to its bare essentials, the standard of review articulated by the
Constitutional Court is whether the award is one that
a reasonable
decision maker could arrive at considering the material placed before
him.’
7
As far as the charge of insubordination is concerned, the applicant
sought to persuade the court that the conclusion reached
by the
second respondent that by reporting for duty on nightshift despite
the statement by the third respondent’s supervisor
that he
should “try and come to work as u should” was a
reviewable irregularity or a decision which a reasonable
decision-maker could not come. There can be no doubt that not only
was the second respondent correct in reaching this conclusion
but
that it was justifiable and most definitely a reasonable conclusion.
In the circumstances, I am not persuaded that the award of the
second respondent is reviewable. Both parties argued that costs
should follow the result.
In the circumstances, I make the following order:
The applicant’s application is dismissed with costs
_______________________
D H Gush
Judge
APPEARANCES
FOR THE APPLICANT: O Mooki
Instructed by Cowan Harper Attorneys
FOR THE FIRST RESPONDENT: C A Nel
Instructed by Kloppers Inc
1
Record
page 39 line 16.
2
Record
page 27 line 25.
3
Record
page 39 line 16.
4
Award
Pleadings page 47.
5
Award
Pleadings page 47.
6
Pleadings
page 32.
7
Edcon
Ltd v Pillemer NO and Others
(2009) 30 ILJ 2642 (SCA) p 2650
para 15.