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[2014] ZALCPE 14
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Maneli v National Bargaining Council Chemical Industry (NBCCI) and Others (P268/11) [2014] ZALCPE 14 (12 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
PORT ELIZABETH
JUDGMENT
NOT
REPORTABLE
CASE
NO: P268/11
In
the matter between:
MZIMASI
NATHANIEL
MANELI Applicant
and
NATIONAL BARGAINING
COUNCIL
CHEMICAL INDUSTRY
“NBCCI” First
Respondent
ROBERT NIEMAND
“PANELIST” Second
Respondent
ASPEN PHARMACARE (PTY)
LTD Third
Respondent
Heard: 23 May 2013
Delivered:
12 June 2014
Summary:
An error which does not lead the arbitrator to reach an unreasonable
decision does
not render an award reviewable.
Review in terms of
section 145 of LRA – Dismissal for misconduct.
JUDGMENT
LALLIE
J
Introduction
[1]
This is an application to review and set aside an arbitration award
of the second respondent in which he dismissed the applicant’s
claim of unfair dismissal on the basis that his dismissal was
substantively fair as he had made himself guilty of the charges which
had been preferred against him. The review application is opposed by
the third respondent.
[2]
The application was filed just over two weeks late and the applicant
applied for condonation. The main ground the third respondent
sought
to rely on in opposing the condonation application is that the
applicant had no prospects of success. The applicant is required
to
have reasonable prospects of success and the test to determine
whether they exist is to establish whether he could be successful
in
the review application. The applicant has made averments which, if
proved, could lead to his success in the review application.
He
therefore has reasonable prospects of success. Having considered the
degree of lateness, the reasons proffered by the applicant,
that
granting condonation would be fair to both parties and not prejudice
the third respondent. The interests of justice also militated
towards
the success of the application. For these reasons, the application
for condonation is granted.
Factual
background
[3]
The facts of this matter are mostly common cause. They are that the
applicant was dismissed by the third respondent on 10 August
2010,
after 17 years’ service. At the time of his dismissal, he was
the chairman of CEPPWAWU (the union) shop stewards committee.
The
events leading to the applicant’s dismissal have their genesis
in the third respondent’s attempt to amend its disciplinary
code. Email was exchanged between shop stewards and the third
respondent with regard to the amendment but no agreement could be
reached. On 28 July 2010, the applicant forwarded an e-mail to Mr
Geyser (Geyser), the third respondent’s CEO and copied
nine
other employees in which he attacked Geyser’s leadership style.
He accused him of behaving like Hitler and the apartheid
leaders of
the past. He stated that his e-mail suggested that he had no
compassion and was inhumane. He further informed Geyser
that his
action incited his subordinates to act like small Indian cobras who
do not ask question but attack while he was like a
king cobra. He
also expressed the view that Geyser’s actions were creating
uneasiness and panic to the entire company including
his subordinates
who did not trust him and did not know how to behave after his memos.
In the letter dated 2 August 2010, the applicant
informed all the
third respondents’ employees that any disciplinary action that
was influenced by the communication (between
the union and the third
respondent’s management) should not be entertained until the
third respondent had met the union organiser
to discuss the matter.
[4]
The third respondent found the e-mail inflammatory and preferred the
following charges against the applicant:
‘
Charge
1: Conduct unbecoming of a Shop Steward alternatively not acting in
good faith towards your employer.
Charge 2: Gross insolence
in that you were rude and disrespectful in your correspondence dated
the 28
th
July 2010 to Dr Geyser.
Charge 3: Attempt to
incite staff in your correspondence dated the 02
nd
August
2010.
Charge 4: Gross
misconduct in relation to your timekeeping and unauthorized absences
for the period including, but not limited to
26 July 2010 – 04
August 2010.’
[5]
The applicant was dismissed having been found to have made himself
guilty of the acts of misconduct he was accused of. He challenged
the
decision to dismiss him at the first respondent where the arbitrator
consolidated charge 1 and 2 into charge 2, as separating
them
constituted an impermissible splitting of charges, and found the
applicant guilty of the second and third charge. He also
found the
applicant guilty of the last charge based on his plea. In the
application at hand, the applicant seeks an order reviewing
and
setting aside the arbitration award.
The
award
[6]
The applicant raised the defence that he was acting in his official
capacity as a spokesman of a collective, referring to the
union. The
arbitrator rejected it and relied on cases consistent with the
following dictum in
Mondi
Paper Co Ltd v Paper Printing and Allied Workers Union and Another
[1]
which was referred to with approval of
BIFAWU
and Another v Mutual and Federal Insurance Company Ltd
:
[2]
‘
No
doubt a shop steward should fearlessly pursue the interests of the
members he represents and he ought to be protected against
being
victimized for doing so. However, this is no licence to resort to
defiance and needless confrontation. I do not agree with
the view of
the court a quo that the fact that he was acting in his capacity as
shop steward serves to ‘mitigate’ conduct
which
objectively is unacceptable. Notwithstanding the position to which he
has been elected, a shop steward remains an employee,
from whom his
employer is entitled to expect conduct appropriate to that
relationship’.
[7]
The arbitrator found that the duty to be respectful and act in the
employer’s best interests were paramount in the relationship
of
employment. By not expressing remorse at the arbitration, the
applicant damaged his prospects of re-employment substantially.
The
mitigation of the applicant’s lengthy years of service were
out-weighed by the irreparable breakdown in the trust relationship.
Inconsistency in the application of discipline was not proved.
Progressive discipline could be applied in respect of the charge
relating to absenteeism and time keeping. Dismissal was found to be
the appropriate sanction for the second and third charge.
Grounds
for review
[8]
The applicant sought to rely on a number of grounds which may be
grouped into two categories. The first consists of submissions
that
the arbitrator failed to apply his mind and exceeded his powers as an
arbitrator thereby committing gross irregularities which
are based on
aspects of the arbitration the arbitrator failed to take into
consideration. These submissions do not constitute valid
ground for
review because they are issues which should have been raised at the
arbitration. They cannot be raised for the first
time on review as
the test for review involves the reasonableness of the award based on
the evidence before the arbitrator.
[9]
The applicant submitted that the arbitrator failed to take into
consideration that the applicant’s witness would have
prove
that the e-mail was written by the shop steward committee members.
The applicant, through his representative, agreed that
witness would
not be called. The applicant’s desire to call witness and the
purpose for which they were going to be called
should have been
raised with the arbitrator. Having agreed that no witness would be
called this ground for review has no merit.
[10]
The applicant submitted that the arbitrator failed to consider and
appreciate that the applicant’s home language is Isixhosa
and
not English and that the e-mail does not suggest that the applicant
or the shop steward committee was disrespectful. The arbitrator
failed to consider that the applicant was not charged with breach of
the third respondent’s IT policy but gross insolence
in that he
sent an e-mail which was construed as offensive. His failure to
consider the true meaning of the content of the email
with regard to
‘Hitler or apartheid leaders’; as the email did not
suggest that Geyser or his management were Hitler
or apartheid
leaders.
[11]
There is a further category of grounds for review which the applicant
submitted constitutes misconduct and gross irregularity
which justify
the reviewing and setting aside of the award. It includes the
arbitrator’s failure to consider the evidence
before him in
that he wrongfully concluded that the email was signed and sent by
the Applicant. He failed to provide reasons for
concluding that
remarks or accusations were inflammatory and/or offensive. He
disregarded that the third respondent acted inconsistently.
He failed
to consider the email of 2 August 2010 properly and not provide
reasons for concluding that the applicant incited other
employees.
The test for the
review
[12]
The test for preview is trite. It is whether the commissioner reached
a decision a reasonable decision maker could not reach
on the
evidence before him or her.
[3]
The correct approach to mistakes made by arbitrators is expressed as
follows in
Herholdt
v Nedbank Ltd (Congress of South African Trade union as Amicus
Curiae)
:
[4]
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in section 145 (2)(a) of
the LRA. For a defect in the conduct of the proceedings to
amount to
a gross irregularity as contemplated by section 145 (2)(a)(ii), the
arbitrator must have misconceived the nature of the
inquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could
not reach on all the
material that was before the arbitrator. Material errors of fact, as
well as the weight and relevance to be
attached to particular facts,
are not in and of themselves sufficient for an award to be set aside,
but are only of any consequence
if their effect is to render the
outcome unreasonable’.
[13]
In
Gold
Fields Mining SA (Pty)
Ltd
(Kloof Gold Mine)
v CCMA and Others,
[5]
it
was held that
the
review court is required to consider the gross irregularity that the
arbitrator is said to have committed and then apply the
reasonableness tests established by
Sidumo
.
It was further held that a reviewing court must ascertain whether the
arbitrator considered the principal issue before him/her;
evaluated
the facts presented at the hearing; and came to a conclusion that is
reasonable.
[6]
[14]
It was argued on behalf of the third respondent that the award is
reasonable. A consideration of the award in its totality
reveals that
the arbitrator dealt with the main dispute before him and reached a
reasonable conclusion. The grounds that the applicant
sought to rely
on do not hold water. Without adopting the piece meal approach that
the courts, including the LAC in
Gold Fields
(
supra
),
warn against, I consider it important to bring to the applicant’s
attention the reasons for the dismissal of his application.
The
ground that the arbitrator failed to consider that the applicant was
acting in a representative capacity as a mitigating factor
has no
basis. The arbitrator acknowledged that the applicant was the
chairman of the shop stewards committee. He dealt with that
issue in
detail and even relied on decided cases in reaching his conclusion.
Even if he erred in not considering the applicant’s
status as a
mitigating factor, he found that the trust relationship between the
applicant and the third respondent had been irreparably
damaged
because the applicant had shown no remorse. No amount of mitigation
would have influenced the arbitrator to decide differently.
The
decision is reasonable as the omission had no effect on the outcome
of the arbitration.
[15]
The applicant argued that the arbitrator erred in dismissing him for
the misconduct involving the letter of 20 August 2010
because he did
not show how he incited employees of the third respondent The
arbitrator erred in not giving reasons for his decision
that the
applicant incited the third respondent’s employees. A
determination needs to be made whether the arbitrator’s
omission led the arbitrator to reach an unreasonable decision. The
answer is in the negative. This omission did not influence the
arbitrator’s decision. The arbitrator’s reasoning shows
that he found respect and acting in the employer’s interests
paramount in the employment relationship. He further found that lack
of remorse had damaged the relationship between the applicant
and the
third respondent irreparable. The omission would, therefore, not have
influenced the arbitrator to decide differently and
it does not
remove the award from the bounds of reasonableness. The award falls
within bounds of reasonableness.
[16]
In the premises the following order is made:
16.1
The application is dismiss.
____________
Lallie J
Judge
of the Labour Court of South Africa
Appearances
For the
Applicant: Advocate
Abrahams
Instructed
by: Coltman’s
Attorneys
For the Third
Respondent: Advocate
Grobler
Instructed
by: Van
Der Walt Attorneys
[1]
(1994) 15
ILJ
778 (LAC) at 780F-G.
[2]
[2006] 2 BLLR 118
(LAC) at para 20.
[3]
See
Sidumo
and Others v Rustenburg Platinum Mines Ltd and Others
2008
(2) SA 24
(CC).
[4]
[2013] 11 BLLR 1074
(SCA) para 25.
[5]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 15.
[6]
Ibid
at para 16.