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[2014] ZALCJHB 17
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NUM v Commission for Conciliation Mediation And Arbitration and Others (JR 1718-12) [2014] ZALCJHB 17 (7 February 2014)
REPUBLIC
OF SOUTH AFRICA
LABOUR
OF SOUTH AFRICA COURT, JOHANNESBURG
JUDGMENT
Case
no: JR 1718-12
REPORTABLE
DATE:
07 FEBRUARY 2014
In
the matter between
NUM
OBO ISHMAEL VETSHE AND 1
ANOTHER
..................................................................................
Applicant
And
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
..................................................................................................
First
Respondent
COMMISSIONER
PATRICK PERCY
MAKGOPELA
............................................................
Second
Respondent
RUSTENBURG
PLATINUM MINE (PTY)
LTD
............................................................................
Third
Respondent
Heard:
17 October 2013
Delivered:
07 February 2014
Summary:
Review application. Principles governing inconsistent application of
discipline. Principles governing resolution of dispute
of facts.
Employee accused of nepotism making bear allegation that others had
also done the same. Not enough information placed
before the employer
to prepare a response to the allegation. Commissioner not called upon
to consider inconsistency where allegation
not properly substantiated
by evidence.
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application to review and set aside the arbitration award
made by the second respondent (the Commissioner) under
case number
NWRB 299-12 and dated 1 June 2012. In terms of the arbitration award,
the Commissioner found the dismissal of the individual
applicants to
have been substantively fair and accordingly dismissed their unfair
dismissal claim.
[2]
The applicants filed an application for condonation for the late
filing of their review application launched in terms of section
145
(1) of the LRA (Act No. 66 of 1995) as amended. The condonation for
the late filing of both their review application and supplementary
affidavit was granted at the commencement of the hearing.
Background
facts
[3]
The two individual applicants are former employees of the third
respondent who respectively at the time of their dismissal occupied
the positions of human resources coordinators and human resource
development assistant.
[4]
The first individual applicant, Mr Vetshe, the HR Coordinator was
charged with the following:
‘
1.
Failing to comply with Company Policies, Procedures, Regulations and
Practices- In that you failed to adhere to and manage the
Cadet
program due diligently in terms of recruitment, appointment and
training of employees.
2.
Not acting in the best interests of the Company.
3.
Failure to adhere to Mine Health and Safety Policies, Procedures,
Regulations and Standard Practices- In that you had arranged
and/or
allowed new Employees to work underground without the proper training
and therefore placed their lives and that of fellow
employees in
danger.
4.
Nepotistism- In that you either arranged and/or allowed a family
member/s to be appointed on the Cadet program without declaring
and/or reporting same to your Superiors.’
[5]
The third applicant, Mr Davids, was charged with the following:
‘
1
Actions against the best interests of the Company.
2.
Failure to adhere to Mine Health and Safety Policies, Procedures,
Regulations and Standard Practices”
[6]
The charges against the applicants arose in the context where the
third respondent and the first applicant (NUM) had concluded
an
agreement in terms of which a cadet program was developed to employ
family members of those employees who had been medically
boarded.
[7]
In terms of the cadet program which commenced operation in January
2011, a list of people who met the necessary requirements
was
developed. Their qualification had to be vetted by the third
respondent. The other requirement was that those who were accepted
into the cadet program had to undergo training based at Klipfontein
Development Centre (KDC). On completion of the training, the
cadets
were to be placed at various mines to do their practical training.
[8]
The recruitment and the training process of the cadets was overseen
by the task team consisting of NUM representative and Mr
Vetshe. The
responsibility of Mr Vetshe and NUM representative was to ensure that
the principles of the cadet programme were adhered
to, and that there
was no deviation from the agreed principles of the programme.
[9]
During February 2012, a list of cadets was screened for the purposes
of determining whether they qualified for the programme.
After the
completion of the screening, Mr Botha, the HR coordinator informed Mr
Vetshe those who were not recommended for appointment
and that they
should not be allowed into the programme. The list of those who were
not recommended for the appointment included
Ms Lebogang Vetshe a
relative of Mr Vetshe.
[10]
Ms Lebogang Vetshe was despite not being recommended, appointed into
the cadet programme. In addition to the problem of the
appointment of
Ms Lebogang Vetshe, the third respondent discovered that some 12
people had been appointed and had commenced work
underground without
the required job training. Those cadets had undergone Operational
Skills Development (OSD) for induction, but
did not undergo the
training at Klipfontein Development Centre (KDC) as was required of
them.
[11]
Allowing the cadets to work underground without the necessary
training posed a health and safety risk for the third respondent.
Ms
Lebogang Vetshe was amongst the 12 cadets.
[12]
The instruction that the 12 cadets should be sent to work underground
was given to Mr Moholo by Mr Vetshe, who was in terms
of the cadet
programme responsible for allocating the newly appointed cadets to
the different mines.
[13]
As indicated earlier, Mr Vetshe and Mr Davids were charged and
dismissed arising in particular from the appointment of the
12 cadets
and their deployment underground without prior training. Their appeal
was unsuccessful and subsequent thereto they referred
a dispute
concerning the alleged unfair dismissal dispute to the first
respondent.
The
grounds for review
[14]
The applicants contended that the Commissioner’s arbitration
award is reviewable in terms of section 145 (2) (a) of the
LRA for
the following reasons:
‘
14.1
The Commissioner misconstrued the law relating to consistent
application in that he failed to take in account that the Third
respondent had acted inconsistently in charging the member Ishmael
Vetshe for nepotism;
14.2
The second respondent committed a gross irregularity in that he
failed to apply his mind to the material evidence before him
and as a
result the members were not given a fair hearing. I state that had
the second respondent applied his mind to this material
evidence he
could have found that the third respondent inconsistently applied the
rule and found dismissal to be unfair.’
[15]
In the arbitration award, the Commissioner identified the issued
which he had to determine in relation to Mr Vetshe as follows:
‘
57
For the 1st applicant Mr Ishmael Lungile Vetshe substantive issues
are:
a)
Whether or not the Applicant contravened a rule or standard
regulating conduct in, or of relevance to, the workplace in all
charges?
b)
Whether or not dismissal was an appropriate sanction for the
contravention of the rule or standard in 3 charges?
c)
Whether or not the rule or standard has been consistently applied by
the Respondent regarding the charge of nepotism? The Applicant
will
not challenge the appropriateness of sanction for the contravention
of the rule or standard of nepotism charge.’
[16]
In relation to Mr Davids, the issues for determination were
identified as follows:
‘
58.
For the 2nd Applicant Mr. Moleko David Davids substantive issues are:
a)
whether or not the Applicant contravened a rule or standard
regulating conduct in, or of relevance to, the workplace in all
charges?
b)
Whether or not dismissal was an appropriate sanction for the
contravention of the rule or standard in all charges?’
[17]
In analysing the evidence and the facts before him, the Commissioner
concludes that he was confronted with two conflicting
versions. He
resolved the conflict by resorting to what was stated in Sasol Mining
(Pty) Ltd V CCMA and Another,
1
where the Court in dealing with this issue had the following to say:
‘
One
of the commissioner’s prime functions was to ascertain the
truth as to the conflicting versions before him. As I have
noted,
this much the commissioner appears to have appreciated. What he
manifestly lacked was any sense of how to accomplish this
task, or
which tools were at his disposal to do so. The commissioner was
obliged at least to make some attempt to assess the credibility
of
each of the witnesses and to make some observation on their
demeanour. He ought also to have considered the prospects of any
partiality, prejudice or self-interest on their part, and determined
the credit to be given to the testimony of each witness by
reason of
its inherent probability or improbability. He ought then to have
considered the probability or improbability of each
party’s
version.’
[18]
In applying the above test the Commissioner made the following
finding:
‘
64
I find that the evidence of Messrs Bester and Moholo had been
credible as truly before me, Applicants could not rebut any charge
that was levelled against them. The Applicants had on several
occasions agreed to the essential aspects of the misconduct. Mr.
Vetshe conceded that he did not check the cadets’ documents as
he trusted the HR Assistant but misdirected himself that one
of the
supervisors told him that the cadets were unskilled. Mr. Davids also
conceded that there were no other documents he checked
prior
approving the movement of cadets. I am of the view that the
Respondent’s witness evidence was more plausible that that
of
the Applicants.
65
On the issue of nepotism Mr. Vetshe failed to rebut the charge. How
can a senior person like Mr. Vetshe plays to be ignorant
that his
family member was part of the cadets? After he became aware why he
did not withdraw himself from the whole exercise. He
came with the
excuse that he reported the names of Mr. Mahokho’s family to
Mr. Bester, but he failed to rebut that why at
the whole list the
authorised Ms. L.M. Vetshe‘s engagement. Further on the cadets
that were found underground he was the
one who gave such instruction
again with a lame excuse that he trusted his HR Assistant. I find
that Mr. Vetshe was not a credible
witness he only wanted to pursue a
frivolous averment that he had done nothing wrong.’
[19]
The Commissioner further found that the dismissal sanction was fair.
The
test for review
[20]
The basic test to apply in review application is whether the decision
reached by the Commissioner is one that a reasonable
decision-maker
could not reach.
2
The authorities have repeatedly emphasised that this is a stringent
test which excludes the determination of whether the arbitration
award was wrong.
3
In NUM and Another v Samancor Ltd (Tubatse Ferrochome and Another
4
,
the Court held that :
‘
...
Even if the reviewing Court believes the award to be wrong there are
limited grounds upon which it is entitled to interfere.’
[21]
The reasonableness of the Commissioner’s decision in the
present matter has to be determined also in the context of the
approach he adopted in dealing with the disputed facts which was
placed before him during the arbitration proceedings.
[22]
The approach adopted in the Sasol matter referred to above in dealing
with the resolution of conflicting versions and relied
on by the
Commissioner is in line with the decision of the Supreme Court in SFW
Group Ltd and Another v Martel ET Cie and Another,
5
where the Court held that:
‘
...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...’
[23]
The other issue raised in this review application concerns the
allegation of the failure by the Commissioner to take into account
the inconsistent application of discipline by the third respondent.
The issue of inconsistency in the application of discipline
was
considered by the Labour Appeal Court in Early Bird Farms (Pty) v
Mlambo where the Court held that:
‘
Like
cases should be treated alike...The respondent and Maziya were guilty
of the same offence, the theft of the chicken pieces.
Prima facie,
they should have received the same penalty. I say prima facie,
because an employer may be justified in differentiating
between
employees, guilty of the same offence on the basis of difference in
personal circumstances (such as length of service and
disciplinary
record) or the merits (such as the roles played in the commission of
the misconduct)...’
6
[24]
In Cape Town Council v Masitho and Others at 1961 the Court held
that:
‘
...but
where two employees have committed the same wrong, and there is
nothing else to distinguish them, I can see no reason why
they ought
not generally to be dealt with in the same way Without that,
employees will inevitably, and in my view justifiably,
consider
themselves to be aggrieved in consequence of at least a perception of
bias.’
Evaluation
[25]
Mr Vetshe’s case: As indicated earlier, the main complaint by
the applicants in relation to Mr Vetshe’s case is
that the
Commissioner committed gross irregularity in not taking into account
the inconsistent application of discipline by the
third respondent.
In this respect, the applicants contend that Mr Mokaba, Mr Mahoko and
Budumela who were also involved in nepotism
in the same way as Mr
Vetshe were not charged for the alleged misconduct.
[26]
The allegation of inconsistency is raised as an issue in dispute in
the pre-arbitration minutes and thereafter during cross-examination
of Mr Bester. The question to Mr Bester in that regard is put in the
form of an inquiry as to why other employees were not charged
with
nepotism.
[27]
The applicants needed to do more than just making an allegation about
inconsistency and posing a question of clarity as to
why others were
not charged. This is because the concept of inconsistency is not a
rule and therefore the applicants needed to
have taken their
allegation further than stating it in the pre-arbitration minutes and
enquiring about it during cross-examination.
In order to succeed, the
applicant ought to have provided more information about the issue. In
the circumstances of this case,
the applicants ought to have
substantiated their allegation. The information they provided for the
first time appear in both the
heads of argument and in the
supplementary affidavit ought to have been placed before the
Commissioner during the arbitration proceedings.
In this respect, it
is contended on behalf of Mr Vetshe that Mr Makaba recruited his wife
into the cadetship programme although
she did not meet the
requirements for such appointment. In the absence of proper evidence
relating to the allegation of inconsistency,
the third respondent
could not have been expected to lead evidence as to why Mr Makaba was
not charged when he had also, as alleged,
committed the same offence
as that of Mr Vetshe.
[28]
As indicated above, the details of the allegations about the alleged
inconsistency raised in both the supplementary affidavit
and the
heads of argument do not assist the case of Mr Vetshe because it was
not placed before the Commissioner during the arbitration
proceedings. The Commissioner cannot accordingly be criticised for
not taking that into account. In any case, this Court can only
take
into account, in considering the review application, the evidence and
those materials which were before the Commissioner during
the
arbitration proceedings.
[29]
As concerning the substance of the charge proffered against Mr
Vetshe, the Commissioner found that he failed to rebut the charge.
It
is important to note that Mr Vetshe did not dispute that employees
with no proper safety related training were deployed underground.
The
excuse he gave for this serious risk to safety was that he trusted HR
Assistant. The Commissioner also found Mr Vetshe not
to have been a
credible witness. This means that he had failed to contradict the
version of the third respondent that the dismissal
was for a valid
and fair reason.
[30]
In my view, the finding on the failure to adhere to safety
requirements is much more serious than even nepotism upon which
the
defence of inconsistency is based on. It follows that the outcome of
the arbitration award would still be sustainable even
if the
conclusion on inconsistency was to be found to be incorrect. In other
words, in allowing employees who were not properly
trained to work
underground, Mr Vetshe created an intolerable situation that not only
exposed the affected employees to the risk
of injury and death but
also others who may not have even been aware of the risk.
[31]
The case of Mr Davids: It is apparent that the Commissioner was faced
with two conflicting versions in as far as the case of
Mr Davids was
concerned.
[32]
The case of the third respondent as presented through the testimony
of Mr Bester was that Mr Davids was responsible for checking
the
qualifications of the employees and signed off to ensure that
employees were referred to the correct training unit. According
to
him, Mr Davids was responsible to make sure that training was in
place and that the legal requirements of training had not
expired.
He also stated that training was so important that every time there
was a serious incident at the work place the first
point of reference
in the investigation is whether those responsible or involved had
received the proper training. It was according
to him the
responsibility of Mr Davids to make sure after receiving the
employees’ papers from the HR Assistance that the
employees are
sent to the correct training centre.
[33]
The case of Mr Davids was that he was only responsible for booking
the training.
[34]
The Commissioner resolved the above conflicting versions by having
regard to the contradictory evidence, the credibility of
witnesses
and the probabilities of the two versions. The Commissioner found
that the witnesses of the third respondent were more
credible than
those of both Mr Vetshe and Mr Davids. He also took into account that
Mr Davids conceded that there were no other
documents he checked
before approving the movement of the cadets.
[35]
The conclusion reached by the Commissioner after considering the
conflicting versions was that the version of the third respondent
was
more plausible than that of the applicants.
[36]
In light of the above analysis, I find no basis to interfere with the
Commissioner’s arbitration award and accordingly
the
applicants’ application stands to fail. It would however, in
the circumstances of this case not be appropriate to allow
the costs
to follow the results.
Order
[37]
In the premises the applicants’ review application of the
arbitration award made under case number NWRB 299-12 and dated
1 June
2012, is dismissed with no order as to costs.
Molahlehi
J
Judge
of the Labour Court of South Africa
APPEARANCES:
FOR
THE APPLICANT: G Mothobi of Mothobi Attorneys
FOR
THE THIRD RESPONDENT: Mr J Mothibi of Norton Rose SA
1
(2011)
32 ILJ 723 (LC) at para 9.
2
Sidumo
and Another v Rustenburg Platinum Mines and Others
2008
(2) SA 24
(CC) at paragraph 110.
3
See
Fidelity
Cash Management Services v CCMA and Others
[2008] 3 BLLR 197
(LAC)
and
Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA
and Others
(JA2/2012 delivered 4 November 2013.
4
[2011]
11 BLLR 1041
(SCA) at para 5.
5
2003
(1) SA 11
(SCA) at para 5.
6
(
2000)
21 ILJ 1957 (LAC)
At
546G-I