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[2014] ZALCJHB 213
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National Union Of Metalworkers Of South Africa and Another v Tokiso Dispute Settlement and Others (JR2049/09) [2014] ZALCJHB 213 (17 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, IN JOHANNESBURG
JUDGMENT
OF
INTEREST TO OTHER JUDGES
CASE
NO: JR2049/09
In
the matter between:
NATIONAL UNION OF
METALWORKERS OF SOUTH AFRICA
First
Applicant
WILLIAM MABOTJA
Second
Applicant
AND
TOKISO DISPUTE
SETTLEMENT
First
Respondent
DR A VAN DER MERWE,
N.O.
Second
Respondent
SILICON
SMELTERS (PTY) LTD
Third
Respondent
Heard:
09 May 2014
Delivered:
17 June 2014
Summary:
(Review – s 33 of
Arbitration Act 42 of 1965
–
reasonableness not part of the review test of misconduct –
stringent requirements to be met to overturn findings
of fact –
requirements not met in casu – application dismissed).
JUDGMENT
Background
[1]
Mr W Mabotja, the second applicant in this
matter, was dismissed on 29 October 2008 for inciting fellow workers.
The third respondent
had recently endured a 35 day strike which ended
on 23 September 2008, about a week before the incident occurred. The
evidence
on which the charge was based was that of a Shift foreman,
Mr J Mangena, who previously held a position of Segregation
supervisor.
He said that at 07h45 on 29 October 2008 he was passing
the canteen door on his way to the clinic when he heard a voice which
he
recognised as that of the second applicant saying "We will
make the company ungovernable until we get what we want." He
had
then stepped into the door of the canteen to confirm who it was and
saw the second applicant addressing employees. He could
not remember
the precise number of employees present but said there were at least
five. He also could not remember with whom he
placed his order of
food that day.
[2]
Mangena had reported the incident because
he felt he had an obligation to do so as he was responsible for
general safety issues
as part of his appointment. He interpreted the
threat of ‘ungovernability’ as one that could impact on
safety because
the equipment and chemicals used at the plant were
dangerous.
[3]
The second applicant complained that the
employer had failed to follow fair procedure in dismissing him. In
particular, he was not
informed of the outcome of the enquiry by the
chairperson but by a security official. The chairperson of the
enquiry, who was the
executive manager of the processing department,
testified on how the disciplinary proceedings were conducted and also
on the dangerous
working environment in that plant as well as the
consequences of possible sabotage which might render the company
ungovernable.
He had intended to convene a hearing to hand down his
finding but had been unable to do so and passed on the decision to
the security
department to inform the second applicant of the result.
[4]
The arbitrator found that the essential
elements of a fair enquiry had been complied with and that it was
improbable that chairperson
had refused to allow the second applicant
to cross-examine witnesses in an unhindered manner during the
proceedings. The arbitrator
also found that the chairperson had
attempted to meet with the parties to advise them of his findings but
no one had arrived on
that occasion. The fact that the second
applicant was informed of the outcome via the security department did
not constitute an
irregularity resulting in an unfair termination.
[5]
On the question of the substantive
fairness, the arbitrator could find no reason why Mangena would have
fabricated the allegation
and even though he was a single witness his
evidence was most probable in the arbitrator's view. He believed that
Mangena took
his health and safety duties very seriously and could
not be faulted for believing the words allegedly used and needed to
be reported
and acted upon. He also found that there was no evidence
to support suspicion about the subsequent promotion of Mangena after
the
second applicant's dismissal. Moreover the disciplinary hearing
took place independently of Mangena reporting the matter.
[6]
The arbitrator did not accept the second
applicant's testimony that he never made use of the canteen and did
not address any employees
on the day in question. In this regard the
mere fact that Mangena could not remember who he had placed his food
order with did
not justify an inference that he was dishonest.
Mangena was also not inconsistent in saying that there were quite a
few employees
present when the second applicant uttered the alleged
words of incitement. The evidence of a co-employee that he had lunch
with
the second applicant did not show any light on the incident
which occurred in the morning.
[7]
The arbitrator was also satisfied that in
the atmosphere which prevailed in the workplace following the strike,
shopfloor relations
had to be handled with care and incitement in
those circumstances could have ignited conflict with significant
consequences especially
given the dangerous work environment in which
wilful property damage or reckless behaviour could lead to safety
breaches with serious
consequences. Further, taking into account the
fact that the charge of incitement was one that carried a recommended
penalty of
dismissal in the employer's code, as well as the
prevailing circumstances at the time and the nature employer's
business, his dismissal
was fair.
Grounds of review.
[8]
A number of grounds of review were raised:
8.1
It was alleged that by allowing the
employee to lead evidence first when there was no dispute about the
fact of his dismissal amounted
to a reversal of the onus which lay on
the employer to prove the fairness of the dismissal. This constituted
a gross irregularity
and rendered his decision unreasonable.
8.2
A further ground of review relating to the
reasoning of the arbitrator concerns his alleged failure to apply
himself to a number
of facts before him. It is claimed this rendered
his decision unreasonable. Further, it is claimed that the
evidentiary basis on
which the decision was made which it is claimed
could not have satisfied the onus of proof.
8.3
Although identified as a matter of fact,
the applicants complained that the arbitrator failed to embark on a
two-stage enquiry into
whether the second applicant had uttered the
words alleged to be and then made a determination on the motive of
Mangena for making
such an allegation. The applicants’ adopt
the view that the arbitrator failed to make finding whether or not
the offensive
statement was uttered at all which indicated a failure
on his part to apply his mind. According to the applicants it was not
enough
for the arbitrator simply to say that he was convinced that
the second applicant committed the misconduct he was charged with.
8.4
In particular, the applicants submit that
the award is one no reasonable arbitrator would have made given
that there was no
witness to corroborate Mangena’s version, and
that his version was materially lacking in certain respects, namely
that:
8.4.1
he could not identify any of the persons
which were addressed in the canteen by the second applicant;
8.4.2
that he ought to have been able to do so if
he could identify the second applicant by his voice;
8.4.3
that he could not identify who had served
him in the canteen even though he stated that the disciplinary
hearing it was his intention
to go to the canteen and collect his
order, and
8.4.4
his failure to provide proof that he
attended the clinic. Essentially, these criticisms are aimed at the
arbitrator’s apparent
failure to consider the credibility of
Mangena’s testimony and the absence of corroboratory evidence.
8.5
The applicants further allege that the
arbitrator failed to take account of the failure of the employer to
adduce certain evidence
such as:
8.5.1
proof that Mangena attended the clinic on
the day in question;
8.5.2
documentary evidence that the second
applicant re-registered his thumbprint after the strike in order to
access the canteen to refute
his evidence that he did not do so;
8.5.3
corroborative evidence of personnel at the
clinic to confirm Mangena’s visit, and
8.5.4
evidence of the canteen staff who might
have served Mangena. Apart from the second point, these criticisms
relate again to the
absence of corroboratory evidence which the
employer conceivably could have obtained, but did not.
8.6
Moreover, the applicants accuse the
arbitrator not taking account of the second applicant’s
evidence that:
8.6.1
he never reregistered for access to the
canteen after the strike;
8.6.2
there was a resolution by union members not
to patronise the canteen after the strike;
8.6.3
he brought lunch from home and could not
use the canteen because he had not re-registered to gain access to it
after the strike;
8.6.4
he used his car to go to work and
consequently did not know when union members resumed using the
canteen, and
8.6.5
further, Mangena testified that he saw the
second applicant talking to other people in the engineering section
which demonstrates
that the second applicant was never in the canteen
as alleged.
8.7
In addition, the applicants argued that if
a two-stage enquiry had been followed, as they say ought to have been
the case, the arbitrator
would have found evidence to explain why
Mangena had a motive to fabricate the incident. This related to the
fact that he was previously
a shop steward and knew the thinking of
the employer following a strike. Further he had worked as a
replacement worker during the
protected strike and continued to do so
afterwards whereas circumstances dictated that replacement labour
would not be retained.
Moreover he was subsequently promoted which
the applicants seem to interpret as a result of his testimony against
Mr Mabotja at
the disciplinary enquiry. The arbitrator also ignored
the fact that the workplace relationship between the two of them was
not
good owing to Mangena chairing an enquiry involving the second
applicant even though the second applicant had objected to him
chairing
the matter, which had resulted in the second applicant
lodging a grievance about this.
8.8
According to the applicants, these factors
should necessarily have led to the arbitrator finding that the
workplace relationship
between them was not good and hence Mangena
had a motive to concoct the allegation against the second applicant.
This too is ultimately
an attack on the arbitrator’s assessment
of the evidence before him.
8.9
Lastly, the applicants claim that the
arbitrator was wrong to allow the chairperson of the enquiry to give
evidence on the state
of affairs prevailing at the respondent's
premises after the strike whereas he should have confined his
evidence to what transpired
in the enquiry before him. Further, the
arbitrator ought not to have relied on evidence of someone who had
not handled the disciplinary
enquiry fairly and objectively. In the
same vein as its criticism of the respondent's failure to call
corroboratory evidence in
respect of Mangena’s version, the
applicants point out that no evidence of the incidents which are
alleged to have occurred
on the same day the second applicant made
his alleged utterance was led.
Evaluation
[9]
In
regard to the above grounds of review, a common theme running through
many of them is that the employer failed to lead all the
evidence it
could to corroborate Mangena’s story. The need for
corroboration or the adduction of confirmatory evidence arises
principally in relation to inherently suspect or unreliable evidence.
For example, “...before the coming into operation of
the
Criminal Procedure Act 1977
some form of formal corroboration was
required for perjury, treason, accomplice evidence, a confession, and
for a plea of guilty
in an inferior court. With the exception of the
confession, these requirements were left out of the 1977 Act”.
[1]
[10]
There is no duty on a party to corroborate
evidence simply because it is able to. Obviously, there is a risk
that if other evidence
is adduced which raises genuine concerns about
the reliability of the uncorroborated evidence, then the failure to
lead confirmatory
evidence might count against the party who failed
to adduce it, simply because in the absence of corroboration the
probative value
of the limited evidence led might be diminished. Thus
even if this award were being reviewed under s 145 of the LRA, I
would not
consider this an irregularity or form of misconduct on the
arbitrator’s part. In any event the test for interference in a
private arbitration award sets a much higher standard as mentioned
below.
[11]
On the question of the sequence of the
enquiry in which the applicant adduced evidence first it is important
to note that the sequence
of adducing evidence does not alter the
onus of proof in an unfair dismissal dispute which is set out in
s
188
of the
Labour Relations Act, 66 of 1995
, namely that :
“
188
Other unfair dismissals
(1) A dismissal that is
not automatically unfair, is unfair if
the employer fails to
prove
-
(a)
that the
reason for dismissal is a fair
reason
-
(i)
related to the employee's conduct or capacity; or
(ii)
based on the employer's operational requirements; and
(b)
that
the dismissal was effected in accordance with a fair
procedure
.”
[12]
The employer bears the overall onus at the
end of the arbitration of proving that the dismissal was procedurally
and substantively
unfair on the evidence presented. However, there is
no reason in principle why an employee, who after all is claiming the
dismissal
is unfair, should not present evidence in support of that
contention, which the employer must successfully rebut in order to
succeed.
While it is customary that the party which is seeking to
prove its case usually commences, it is not absolutely necessary,
subject
to the ordinary principle that the party which leads evidence
second, has a duty to put its version to the witnesses of the first
party, if the subsequent evidence would contradict theirs. But the
sequence of evidence does not, in and of itself, imply a change
in
the overall onus of proof. The only difference is that the employer
need only prove that it did act fairly in respect of those
matters
which the employee claims it did not, and not canvass issues which
might not even be in dispute. In any proper pre-arbitration
proceedings, the areas in dispute are clarified upfront, making it
unnecessary for an employer who starts leading evidence first
to lead
evidence on every facet of the procedure followed or the substantive
issues.
[13]
However, in this case there is another
overriding consideration: the arbitration is a private one and even
if it is not correct
that an employee might begin leading evidence in
statutory unfair dismissal arbitration proceedings, the practices in
statutory
arbitration proceedings are not necessarily applicable in
private arbitration proceedings under the Arbitration Act 42 of 1965
(‘the
Arbitration Act&rsquo
;).
S 33
of the
Arbitration Act permits
a review only on one or more of the following
grounds:
13.1
the arbitrator has committed misconduct in
relation to the duties of an arbitrator;
13.2
the arbitrator has committed a gross
irregularity or exceeded the arbitrator’s powers, or
13.3
the award was improperly obtained.
[14]
The complaint about the sequence of the
proceedings is not one that would fall within the ambit of a gross
irregularity in my view,
or the reasons mentioned.
[15]
This brings me to the remainder of the
grounds of review. In essence, the applicants argue that the
arbitrator’s assessment
of the evidence showed that he omitted
to consider certain evidence, or failed to give evidence the weight
it deserved. The
major hurdle the applicants face is that this
is not a review under
s 145
of the LRA.
[16]
Consequently, considerations of
reasonableness as a ground of review under the LRA in the variations
it has undergone are not applicable
to reviews under
s 33
of the
Arbitration Act. As the LAC stated in
National
Union of Mineworkers obo 35 Employees v Grogan NO & another
[2010]
JOL 25689
(LAC)
:
“
The
grounds of review set out in
section 145
of the LRA are the same as
the grounds of review set out in
section 33
of the
Arbitration Act.
The
only difference is that there are court decisions which have
interpreted some of the grounds of review set out in
section 145
of
the LRA to include certain grounds of review taken from the
Constitution whereas,
as far as I know, there is no decision of any court which has
interpreted
section 33
of the
Arbitration Act to
include any grounds
of review that are not explicitly expressed in
section 33
of the
Arbitration Act
.
Of course, I am, in this regard, referring to the grounds of review
of unjustifiability of CCMA awards articulated by this Court
in
Carephone (Pty) Ltd v Marcus NO, supra, of the irrationality of CCMA
awards as articulated by the court in Shoprite Checkers
(Pty) Limited
v Ramdaw NO & others (2001) 22 ILJ 1603 (LAC) [also reported at
[2001] JOL 8489 (LAC) – Ed] as well as
that of the
unreasonableness of CCMA awards imputed to
section 145
of the LRA by
the Constitutional Court in Sidumo & another v Rustenburg
Platinum Mines Ltd & others, supra.”
[2]
(emphasis
added)
[17]
Further in
Volkswagen
SA (Pty) Ltd v Koorts NO & others
(2011)
32
ILJ
1892
(LAC)
, the LAC confirmed the
correctness of the appellant’s argument that:
“
...[C]ourts
are not legally able to give effect to the parties’ requirement
that a private arbitrator render an award which
is “rational
and justifiable”, or any other review standard for that matter.
Unless the error thus vitiates the award
a review court is bound to
measure the product of private arbitration proceedings against the
narrow grounds of review encapsulated
in the
Arbitration Act of
1965
.”
[3]
[18]
Moreover, the scope for attacking factual
findings of an arbitrator on grounds of misconduct under
s 33(1)(a)
are very limited. As the Appellate Division, as it then was, held in
Amalgamated Clothing And Textile
Workers Union Of South Africa v Veldspun (Pty) Ltd
[1993] ZASCA 158
;
1994 (1) SA 162
(A)
:
“
As
to misconduct, it is clear that the word does not extend to bona fide
mistakes the arbitrator may make whether as to fact or
law. It is
only
where
a mistake is so gross or manifest that it would be evidence of
misconduct or partiality that a Court might be moved to vacate
an
award: Dickenson & Brown v Fisher's Executors
1915 AD 166
at
174-81. It was held in Donner v Ehrlich
1928 WLD 159
at 161 that even
a gross mistake, unless it establishes mala fides or partiality,
would be insufficient to warrant interference.
[4]
[19]
Similarly, with reference to a claim that
an incorrect finding on the merits of a matter, in fact or law, could
found a review based
on a misdirection by an arbitrator under
s 33
the SCA said in
Telcordia
Technologies Inc v Telkom SA Ltd
[2006] ZASCA 112
;
2007
(3) SA 266
(SCA)
:
“
An
arbitrator 'has the right to be wrong' on the merits of the case, and
it is a perversion of language and logic to label mistakes
of this
kind as a misconception of the nature of the inquiry”
[5]
[20]
When considering the remaining grounds of
review against these stringent limitations on the power of the court
to interfere when
exercising its powers under
s 33
of the
Arbitration
Act, it
is clear that arbitrator’s alleged shortcomings in his
assessment of the available evidence, even if well founded, would not
clear the hurdles placed in the way of a successful review based on
mistakes made in assessing the evidence.
[21]
Consequently, even if the applicants might
have had grounds for successfully challenging the award relying on
the
s 145
of the LRA and the requirement of reasonableness (which is
doubtful, though not necessary to analyse in detail), those
criticisms
cannot lay a basis for arguing that the arbitrator
committed gross misconduct in the proceedings.
[22]
In the result I am satisfied the applicants
have failed to establish a basis for reviewing and setting aside the
award under s 33
of the
Arbitration Act, which
they needed to
demonstrate in order to succeed, and the application must be
dismissed.
Order
[23]
In light of the analysis above, the review
application is dismissed with costs.
_________________
R LAGRANGE, J
Judge
of the Labour Court
Appearances:
For
the Applicants: P Motaung of Nomali Tshabala
Attorneys
For
the Third Respondent: G Fourie instructed by Edward Nathan
Sonnenberg Inc.
[1]
CWH
Schmidt et al,
Law
of Evidence
,
Butterworths (July 2013 – Service Issue 11) at 4-4
[2]
At
para [32]
[3]
At
1897, paras [8] – [9].
[4]
At
169C-E
[5]
At
301-2, para [85]