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[2014] ZALCJHB 163
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Motsoku v Metal and Engineering Industry Bargaining Council and Others (JR547/08) [2014] ZALCJHB 163 (13 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: JR 547/08
In
the matter between:
DANIEL MOTSOKU
Applicant
AND
METAL AND
ENGINEERING INDUSTRY BARGAINING COUNCIL
First
Respondent
COMMISSIONER J M
GAYLARD (
N.O.
)
Second
Respondent
CONTINENTAL
ANODIZERS
Third
Respondent
Heard:
09 May 2014
Delivered:
13 May 2014
Summary:
(Review).
JUDGMENT
LAGRANGE,
J
Introduction
[1]
This is a review application which was
opposed, but on the day before the hearing the third respondent
erstwhile attorney’s
of record filed a notice of withdrawal on
the basis that it appeared that their client was in liquidation,
though no confirmation
of this was made available to the court.
[2]
The applicant represented himself, having
previously been assisted by his former union, UPUSA. Even though the
respondents were
not represented, the court can only grant the review
application if the applicant has made out good grounds for doing so.
In this
instance, he has not done so. I do understand in a matter
like this that the grounds of review were probably identified by the
union and when I speak of the applicant in this judgement it is on
the understanding that the representations were made by his union
on
his behalf.
[3]
Before going on to the main application, I
note that the respondents’ answering affidavit was filed on 20
October 2008 whereas
the applicant filed his supplementary affidavit
on 7 August 2008. It would appear that the respondent was late and
required condonation
for the late filing of its answering affidavit.
However, when the applicant filed his supplementary affidavit the
record was far
from complete and handwritten notes were only filed in
September 2008. Moreover, even as it stands the record is hardly
complete.
In any event, at worst for the respondents, if I assume the
respondent was obliged to file its answering affidavit when it did,
it was four weeks late in relation to the period from filing a reply
set out in the Labour Court rules. I do not consider the delay
significant especially in the light of the applicant's failure to
file a proper record or to attempt its reconstruction. Moreover
as
appears from the evaluation of the merits of the review for which I
do not even need to consider the replying affidavits, the
respondents’ prospects of success were strong. Accordingly, to
the extent that it is necessary, condonation for the late
filing of
the respondents’ replying affidavits is granted.
[4]
The arbitrator upheld the dismissal of the
applicant as substantively and procedurally fair. Essentially the
applicant had been
charged and dismissed for refusing to the anodised
a beam despite being told to do so more than once. The applicant had
challenged
the procedural fairness of the internal enquiry which had
been conducted in a censure after he refused to attend in the absence
of his chosen representative or an official of the union. His shop
steward was apparently reluctant to defend him in the matter
because
he felt he lacked experience, but the company was equally unwilling
to allow a union official to represent the applicant
because he was
not shop steward. The applicant had also challenged the substantive
fairness of the dismissal.
[5]
The arbitrator accepted the evidence of the
respondents’ production manager that the applicant had refused
to anodise the
beam despite being told to do so. The production
manager had called the factory manager who had also pleaded with the
applicant
to anodise the beam and stressed that it was urgent but he
had refused. The applicant's evidence was that the beam was coated
with
caustic and he had not refused to obey an instruction but merely
pointed this fact out to his managers as he was obliged to.
[6]
The arbitrator accepted that the company’s
version that the applicant left the hearing of his own accord was a
more probable
version than the applicant’s because of the
contradictions in the applicant's own evidence on what happened
during those
proceedings. The arbitrator also noted that the
applicant had been given an opportunity to be represented by another
employee in
the absence of his shop steward and that the union
declined an opportunity to appeal against the findings of the
internal enquiry
despite being offered the opportunity to do so.
Accordingly, the arbitrator concluded that, on a holistic basis, the
hearing was
fair.
[7]
On the question of substantive fairness the
arbitrator emphasised that the production manager had testified that
the applicant had
not said anything when he gave him the instruction.
The applicant did not say he could not do the job when caustic was
present
but simply that the manager should be informed. The factory
manager also said that when he asked the applicant why he would not
do the work he responded that the production manager should do it.
The arbitrator also noted what she called the poor quality of
the
applicant's evidence compared to that of the employer’s
witnesses. An aggravating factor for the arbitrator was that
the
incident took place in front of other employees, the order was urgent
and the factory manager was forced to do the anodising
himself
as a result of the applicant's refusal.
[8]
The applicant raised a number of grounds of
review, some of which are really the same as grounds of appeal and
strictly speaking
need not be considered. Nonetheless, I will deal
briefly with his main grounds of review one by one.
[9]
Firstly, the applicant contends that the
arbitrator misconstrued the evidence on procedural fairness because
he in fact returned
to the internal hearing with another
representative but was told that he was dismissed. Having looked at
the record and the arbitrator’s
award, I could find nothing to
support this version of events on the evidence.
[10]
Secondly, the applicant contends that the
production manager’s evidence confirmed his own evidence that
he did the job. However
the job referred to by the applicant is not
the one that he was accused of not doing. Rather it was the job of
jigging the beam
for which a team of workers including the applicant
was responsible. In any event, I can find nothing on the evidence
that shows
that the production manager clearly agreed that the
applicant had been responsible, or partly responsible for jigging the
beam.
[11]
The applicant also argues that, contrary to
what the arbitrator says, the production manager did not say that he
refused to do the
job. Having regard to the available record it
appears that the applicant is confusing the evidence of the
production manager with
the factory manager and there is no basis for
this ground of review.
[12]
The applicant says also that he told the
arbitrator he was told he could not attend the internal hearing, but
this assertion is
not borne out by the evidence. The applicant
suggests too that the arbitrator implied that the shop steward
himself had testified
on his refusal to represent the applicant. He
points out that this is clearly wrong because the shop steward did
not give evidence
at the arbitration. A plain reading of the
arbitration award does not support this and the applicant’s
interpretation appears
to be a complete misreading of the award.
[13]
The applicant also alleges, based on page
44 of the transcript, that he had done what he was supposed to do and
that he was dismissed
whereas the other employees responsible were
not. Once again, a reading of the relevant portion of the transcript
shows that the
instruction that the production manager was talking
about during this part of his evidence was not the instruction to
anodise the
beam, but the instruction to jig it which also involved
other employees.
[14]
The other grounds of review are in fact
grounds of appeal and accordingly I will not consider them.
[15]
In conclusion the applicant has failed to
advance any material flaws in the arbitrator's understanding of the
evidence or her characterisation
of it and I cannot find that her
conclusion is an unreasonable interpretation of the evidence before
her. The standard for reviewing
an arbitration award based on the
arbitrator’s consideration of the evidence is that the
arbitrator must have reached conclusions
that no reasonable
arbitrator could have reached on the evidence before her.
[16]
In this case, the inferences and
conclusions drawn by the arbitrator on the substantive and procedural
fairness of the applicant's
dismissal are quite plausible and
reasonable.
Order
[17]
In light of the above, the application is
dismissed with no order as to costs.
_______________________
R LAGRANGE, J
Judge of the Labour
Court of South Africa
APPEARANCES
APPLICANT:
In person
FIRST
RESPONDENT:
No appearance