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[2014] ZALCJHB 20
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Rustenburg Platinum Mines Limited v Commission for Conciliation, Mediation And Arbitration and Others (JR2283/09) [2014] ZALCJHB 20 (23 January 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA,JOHANNESBURG
JUDGMENT
Case
no.:JR2283/09
DATE:
23 JANUARY 2014
In
the matter between:
RUSTENBURG
PLATINUM MINES
LIMITED
.................................................
Applicant
And
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
.........................................................
First
Respondent
RAMOTSHELA,
M,
N.O
....................................................................
Second
Respondent
NATIONAL
UNION OF MINEWORKERS
..........................................
Third
Respondent
MWACHANDA,
M.M
...........................................................................
Fourth
Respondent
Heard:
7 January 2014
JUDGMENT
WILKEN,
AJ
Introduction
[1]
This is a review launched by the Applicant (“the Company”)
in terms of Section 145 of the Labour Relations Act,
66 of 1995 (“the
LRA”) to review and set aside the arbitration award handed down
by the Second Respondent (“the
Commissioner”) in case NW
6265/08 dated 9 June 2009. The Company is seeking an order that the
matter be referred back to
the First Respondent (“CCMA”)
for arbitration to be heard before a commissioner other than the
Second Respondent.
Background
Facts
[2]
The Fourth Respondent (“the Employee”) was dismissed
following a disciplinary hearing having been found guilty of
the
following complaints:
2.1
‘assault and/or fighting;
2.2not
working according to established standards and procedures in that you
negligently omitted to report a breakdown on an LHD
machine; and
2.3
insulting and/or abusive language’”
[3]
The Employee unsuccessfully lodged an internal appeal and referred a
dispute concerning his alleged unfair dismissal to the
CCMA. After
the dispute was unsuccessfully conciliated, the dispute was referred
to arbitration and the Commissioner held that
the dismissal of the
Employee was substantively unfair issuing an award that the Employee
be re-employed on the same terms and
conditions of employment as at
date of his dismissal with effect from 1 August 2009. Given the
award, the Employee received no
payment from date of dismissal to
date of re-employment.
[4]
The genesis of the complaints against the Employee arises from a
series of events on 6 August 2009 during night shift when the
Employee’s shift supervisor, Petrus Hendrik Muller (“Muller”)
found the Employee stationary in a load haul dumper
(“LHD”).
Muller enquired from the Employee why the LHD was stationary. The
Employee informed him that he had a breakdown.
Muller was clearly
unhappy that the Employee remained in the LHD and did not report the
breakdown so that the LHD could be fixed.
Muller responded that the
Company would lose money if the LHD was not operated which would
result in Employee not making his bonus
as it was unlikely the
required target would be achieved.
[5]
Muller left the Employee’s work area, but later during the
evening the Employee approached Muller who was in the presence
of a
miner, Benny Stander (“Stander”), at the time. Muller was
sitting on a 5 litre tin of paint and a discussion ensued
between
Muller and the Employee concerning the Employee’s likely loss
of money as a result of the LHD being operational.
It is common cause
that the Employee then swore at Muller.
[6]
The Employee contends that Muller thereupon assaulted him by hitting
him in the face whilst Muller and Stander denied such assault
and
contended that Muller responded politely by saying “thank you”
repeatedly.
[7]
Both Muller and Stander testified that the Employee attempted to hit
Muller with a pinch bar at first, but Stander intervened
and took the
pinch bar away from the Applicant. Thereafter, the Applicant hit
Muller with a jumper (which is a steel pole approximately
1.2 meters
long and 20mm in diameter). Once again Stander intervened and
dispossessed the Employee of the jumper, whereafter the
Employee
left. The Employee returned shortly afterwards and then attempted to
hit Muller with an 8 pound hammer. Again, Stander
intervened and
removed the hammer from Applicant, whereafter Muller left the scene.
The Employee denies having attempted to assault
Muller with the pinch
bar and/or the hammer, but admits having struck Muller with the
jumper. Most notably the Employee stated
in his evidence that it was
unfortunate that a pillar lessened the blow when he struck Muller.
[8]
At the pre-trial conference, the Employee admitted the assault upon
Muller, but contended that he acted in self-defence.
[9]
Arising from the incident, Muller was also called to a disciplinary
hearing and a joint disciplinary hearing was conducted arising
from
the events described above by the same Chairman.
[10]
Muller was put to answer the following complaints:
2.4
‘assault and/or fighting; and
2.5
making of racial remarks towards a fellow Employee’.
[11]
Muller was found guilty of assaulting or fighting, but not guilty of
making racial remarks towards the Employee. Muller’s
appeal
against his finding of guilt was successful, but strangely enough the
chairperson found him guilty of “unacceptable
behaviour”,
which was not one of the complaints he was called upon to answer or
found had committed at the disciplinary hearing.
[12]
At the arbitration the Employee also challenged its dismissal on the
basis of inconsistency given the sanction imposed by the
Company upon
Muller.
[13]
At the arbitration the Employee called witnesses who testified that
Stander had confided in them after the event that Muller
had treated
the Employee badly and by inference, had sworn at him. The nub of the
evidence was that Muller had acted in an abusive
racial manner
towards the Employee.”
The
arbitration award
[14]
The Commissioner identified the two irreconcilable versions
concerning the alleged assaults the allegation of racial abuse.
The
Commissioner proceeded to deal with the irreconcilable versions by
concluding that Muller and Stander’s version concerning
Muller’s response to the Employee swearing at Muller was
improbable, and on that basis rejected the evidence of both Stander
and Muller. The Commissioner accepted the Employee’s evidence
as “a more plausible version”, but found whilst
he acted
in self-defence he exceeded the bounds of self-defence.
The
Law
[15]
The test to be applied when faced with two irreconcilable versions is
well established and requires the arbitrator to make
findings on the
credibility and reliability of the witnesses as well as the
probabilities.
1
[16]
When assessing the credibility of witnesses, a variety of factors
need to be taken into consideration, namely:
2.6
the witness’ candour and demeanour in the witness box;
2.7
the witnesses’ bias, latent and blatant;
2.8
internal contradictions in the witnesses’ evidence;
2.9
external contradictions with what was pleaded or put on behalf of the
witnesses, or with established fact, or with his own extra
curial
statements or actions;
2.10
the probability or improbability of a particular aspect of the
witnesses’ version; and
2.11
the calibre and cogency of the witnesses’ performance compared
to that of other witnesses testifying about the same incident
or
events.
[17]
Insofar as the assessment of witnesses reliability is concerned, most
of the factors mentioned above, and in particular the
following
factors, must be considered:
2.12
the witness’ bias, latent and patent;
2.13
external contradictions with what was pleaded or put on the
witnesses’ behalf, or with established fact, or with the
witnesses’ own extra curial statements or actions;
2.14
the probability or improbability of particular aspects of the
witnesses’ version;
2.15
the opportunity the witness had to experience, or observe the event
in question; and
2.16
the quality, integrity and independence of the witnesses’
recall thereof.
[18]
With regard to assessing the probabilities, this necessitates an
analysis and evaluation of the probability or improbability
of each
party’s version on each of the disputed facts.
2
Assessment
[19]
In coming to the credibility finding, the Commissioner failed
dismally in conducting the aforesaid analysis. Not only did he
fail
to apply the analysis, but failed to recognise that most of the
Employee’s case surrounding the alleged historical bad
treatment by Muller of him and other Employees, the alleged racial
abuse he suffered, his version of only having assaulted or attempting
to assault Muller with the jumper as a result of him having been
provoked (provocation never formed part of the Employee’s
case)
was never put to Muller or Stander.
[20]
The Commissioner failed to assess the evidence before him
holistically to come to the conclusion which version to accept,
having realised that there were two irreconcilable versions.
[21]
By failing to adopt the correct approach in dealing with the two
irreconcilable versions, the Commissioner misconceived the
nature of
the enquiry he had to conduct. When a Commissioner fails to have
regard to the material facts before him, the Commissioner
fails to
perform his mandate and in doing so his conduct constitutes a gross
irregularity in the conduct of the arbitration proceedings
as
envisaged in Section 145(2)(a)(ii) of the LRA.
[22]
The Commissioner’s decision is only subject to review, even
having committed a gross irregularity as contemplated by
Section
145(2)(a)(ii), if his award is one a reasonable arbitrator could not
reach on all the material before the arbitrator.
3
[23]
The Commissioner in essence found that the Employee was not guilty of
assault on the basis that the Company had the onus to
prove the
assault. The Commissioner not only incorrectly rejected the evidence
of Muller and Stander, but also found that Muller’s
racial
abuse of the Employee provoked him to swear at Muller, which resulted
in Muller assaulting the Employee on the probabilities,
triggering
the Employee’s assault, such assault constituting self
-defence.
[24]
The Commissioner’s finding that Muller had racially abused the
Employee which in turn provoked the Employee to swear
at Muller,
triggering in the assault by the Employee upon Muller is fatally
flawed. The Commissioner’s finding that the Employee
was indeed
racially abused is not sustainable as the racial abuse was never put
to Muller or Stander. Furthermore, the Commissioner’s
approach
of considering it to be academic to deal with the evidence of the
Employee’s witnesses in relation to Stander allegedly
confiding
in them that Muller had racially abused the Employee also amounted to
a gross irregularity in the conducting of the hearing.
Given his
finding of the evidence of Stander that Muller had treated the
Employee poorly was not academic at all.
[25]
The Commissioner further erred in failing to appreciate the bounds of
self-defence. He concludes that the assault by the Employee
upon
Muller exceeded the bounds of self-defence. It is trite that where a
defender uses more force that is reasonably necessary
to repel an
attack, the defender would be guilty of assault on the attacker and
the defender would not be able to rely on self-defence.
4
[26]
The Commissioner accordingly committed a gross irregularity in
assessing the evidence and did not apply the correct approach
to
evaluate whether the Employee’s actions amounted to
self-defence which, viewed objectively, renders the award
unreasonable.
[27]
It is evident from reading the transcript and the documents tabled in
the arbitration proceedings, that many issues require
careful
examination in relation to the alleged racial remarks by Muller, his
alleged poor treatment of the Applicant, the possibility
of
inconsistent treatment between Applicant and Muller. In the
circumstances it would be appropriated to set aside the arbitration
award and refer the matter back to the First Respondent to be
considered by another Commissioner.
[28]
Miss Tolmay on behalf of the Company advised that she was instructed
to seek the Company’s costs in the event of it being
successful. The basis upon which costs were being sought was that the
Employee and the union had sufficient time to reflect upon
the
application for review and ought to have realised that the opposition
to the review was without justification. The issue of
costs in Labour
Court proceedings depends on law and fairness. Policy considerations
requires the Labour Court to adopt an approach
which would not deter
litigants from defending or prosecuting bona fide actions for fear of
adverse costs awards.
5
[29]
Accordingly, I issue the following order:
1.
the arbitration award issued by the Second Respondent in Case NW
6265/08 dated 9 June 2009 is reviewed and set aside;
2.
the First Respondent is directed to enrol the dispute for arbitration
for hearing before a different Commissioner at the earliest
possible
opportunity;
3.
there is no order as to costs.
[30]
No special circumstances were advanced on behalf of the Company why
costs should follow the result, and it was not suggested
that the
opposition to the review was not bona fide given the order that the
matter would be referred back to the CCMA and the
ongoing
relationship between the Company and the Third Respondent, I make no
order as to costs.
Wilken,AJ
Acting
Judge of the Labour Court of South Africa
23
January 2014
APPEARANCES
FOR
THE APPLICANT:Advocate E Tolmay
Instructed
by Edward Nathan Sonnenberg Inc.
FOR
THIRD RESPONDENT: Mr MS Molebaloa of MS Molebaloa Attorneys.
1
SFW
Group Limited & Another v Martel Et Cie & Others
2003
(1) SA 11
SCA.
2
SFW
Supra, page 14 I to page 15 D and
Masilela
v Leonard Dingler (Proprietary) Limited
2004
25 ILJ 544 (LC) at para. 29.
3
Herholdt
v Nedbank Limited
(2013)
34 ILJ 2795 SCA and Goldfields Mining SA (Pty) Ltd v CCMA and Others
(JJA2/2012)
[2013] ZALAC 28
(0411/2013).
4
S
v Ntuli
1975
(1) SA 429
(A) at 437.
5
MEC
for Finance, Kwa Zulu-Natal and Another
[2008]
6 BLLR 540
LAC.