About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2014
>>
[2014] ZALCPE 16
|
|
Magijima v Commission for Conciliation, Mediation and Arbitration and Others (P543/13) [2014] ZALCPE 16 (27 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
No: P543/13
In
the matter between:
MHLANGANISI
WELCOME
MAGIJIMA
..........................................................................
Applicant
And
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
.........................................................................
First Respondent
COMMISSIONER
T
POTGIETER
.......................................................................
Second
Respondent
CADBURY
SA (PTY)
LTD
........................................................................................
Third
Respondent
Heard:
7 May 2013
Delivered:
27 June 2014
Summary:
An applicant seeking to rely on an error by a commissioner to have an
award reviewed and set aside must first prove that
the error was made
and thereafter show that the error led the commissioner to reach an
unreasonable decision.
Review
in terms of section 145 of the LRA – Dismissal for misconduct.
JUDGMENT
Lallie,
J
Introduction
[1]
In this application, the applicant seeks an order reviewing and
setting aside an arbitration award of the second respondent
(“the
commissioner”) in which he found his dismissal by the third
respondent both substantively and procedurally fair.
Condonation
[2]
Section 145 of the Labour Relations Act 66 of 1995 (“the LRA”)
required the applicant to have filed this application
within six
weeks of the date the award was served on him. He filed it two days
later and applied for condonation. The third respondent
did not
oppose the application. The delay is not significant and the
applicant proffered reasonable explanation for it. Granting
the
application will not prejudice the third respondent and the applicant
has reasonable prospect of success. The application for
condonation
is therefore granted.
Factual
background
[3]
The applicant was employed by the third respondent on 26 September
1994 until he was dismissed on 12 November 2011, at a time
he was a
forklift driver. The third respondent’s business is a twenty
four hour operation. Four shifts are scheduled per
day. Management
prepares shift rosters and communicate them to employees. Employees
are required to work the shifts they are allocated
to, in order to
prevent production loss. On 25 November 2010, the applicant worked
the shift which started at 14h00 and ended at
22h00. He was scheduled
to work on it even the following day. He, however, did not report for
his allocated shift on 26 November
2010 but reported for duty at
about 17h40 for the 18h00 to 06h00 shift which is an overtime shift
and entitled him to a higher
remuneration rate than the one he was
scheduled for. When the shift the applicant was allocated to ended at
22h00, the applicant
continued working. When asked for reasons for
not leaving as his shift was over, he stated that he was working the
18h00 to 06h00
shift and refused to leave. He was instructed by
Mr Nakana (Nakana), his team manager, and Mr Lamani (Lamani), his
team leader,
to leave but he persisted with his refusal and remained
at his workstation. The efforts of a security guard to persuade him
to
leave were also not successful. He continued working until the end
of the overtime shift.
[4]
The applicant was subjected for a disciplinary enquiry and dismissed
for gross insubordination for refusing to carry out a reasonable
instruction to leave the workplace and for refusing to stop work at
the end of a shift. On dismissal, he was on a final written
warning
for gross insubordination.
The
award
[5]
The applicant’s version was that he worked the overtime shift
on 26 September 2010 with the permission of his team leader,
Lamani.
The applicant expressed the view that the opportunity of working
overtime was not made available equally to employees.
He complained
that the third respondent applied discipline inconsistently as it did
not take disciplinary action against Mr Hoza
(Hoza), after committing
similar misconduct. The commissioner accepted that Lamani had the
authority to give the applicant instructions
to leave the workplace.
He found the applicant’s version that he had an agreement with
Lamani to work overtime to have been
fabricated after the fact as it
was not put by the applicant’s legal representative to the
third respondent’s witnesses.
He also found the instruction to
be reasonable. The insubordination took place in the presence of
other employees justifying the
third respondent’s decision that
the applicant could not be trusted. Progressive discipline had proved
unsuccessful to correct
the applicant’s conduct. Inconsistency
was not proved as Hoza had not refused to leave and unlike the
applicant, he had no
final warnings for insubordination. Challenges
on procedural fairness were found invalid and the sanction of
dismissal appropriate.
Grounds for
review
[6]
The applicant’s first ground for review is that the
commissioner committed a gross irregularity and exceeded his powers
by allowing an advocate to represent the applicant without an
instructing attorney either present or on record. Rule 25 of
the Rules for the conduct of Proceedings before the CCMA (CCMA Rules)
provides that a party may be represented by a legal practitioner
at
an arbitration. Section 213 of the LRA defines a legal practitioner
as any person admitted to practice as an advocate or an
attorney in
the Republic. Nothing precluded the advocate, as he falls within the
definition of ‘legal practitioner’,
from representing the
applicant. The LRA is silent on the requirement that the advocate had
to represent on the instructions of
an attorney. Although the
applicant alleges that the absence of the instructing attorney is in
breach of the CCMA Rules, he does
not disclose the particular Rule
breached. Absent the rule that the commissioner was precluded from
allowing the applicant’s
legal representative from representing
him, the commissioner’s decision cannot be faulted. The absence
of an instructing
attorney either at the arbitration or on record did
not render the award reviewable.
[7]
The applicant attacked the reasonableness of the award on the basis
that the commissioner failed to play an inquisitorial role
and assist
him when his legal representative failed to put his version to the
third respondent’s witnesses. The helping
hand principle
has its boundaries. The applicant was legally represented by an
advocate, there was therefore no duty on the commissioner
to play an
inquisitorial role and assist him. The applicant did not raise any
exceptional circumstances on which a decision that
his legal
representation denied him of a fair hearing can be based. He cannot
in the circumstances rely on his legal representative’s
mistake.
[8]
The applicant submitted that the second respondent committed a gross
irregularity by attaching unreasonable weight to the fact
that his
version had not been put to the third respondent’s witnesses.
He was required to apply his mind to the totality
of the evidence
with the object of determining the inherent probabilities of the
matter before him and failed to assess and determine
the relevant
aspects of the evidence. Such aspects of the evidence include
Lamani’s failure to establish his whereabouts
when he did not
arrive at the commencement of his scheduled shift. He refused to
leave because he had an agreement with Lamani
to work overtime.
Lamani had caused his unfair dismissal which he successfully
challenged and got reinstated. In that arbitration
the
commissioner commented that Lamani had an agenda. The commissioner,
in the matter at hand, should have drawn an inference that
Lamani was
pursuing the same agenda, leading once more to his dismissal. The
applicant further submitted that the commissioner
committed a gross
irregularity in accepting the third respondent’s version on how
overtime was managed and overlooked flaws
which included favouritism
in its allocation. A further criticism on the award is
based on the commissioner’s
finding that the sanction of
dismissal was appropriate. The commissioner reached the finding
without taking into account the appropriateness
of a sanction less
than dismissal. He attacked the quality of his representation based
on the evidence which, had it been tendered,
could have led the
commissioner to reach a decision less severe than dismissal. The
applicant alleged that all the grounds the
applicant sought to rely
on led the commissioner to reach an award which is not reasonable and
deprived him of his right to a fair
hearing and to have his evidence
fairly and properly assessed.
[9]
Not every aspect of an award an applicant is dissatisfied with
constitutes grounds for review. An award is reviewed and set
aside
when the commissioner has reached a decision which falls outside the
bounds of reasonableness. In order to determine whether
the applicant
has established grounds to have an award reviewed and set aside, the
review court needs to consider the totality
of the evidence before
the commissioner, determine whether the commissioner dealt with the
principal issue, assessed evidence and
reached a reasonable
decision. In this regard see
Gold
Fields Mining SA (Pty) Ltd
(Kloof
Gold Mine)
v
CCMA
and
Others
.
[1]
[10]
Not every error a commissioner makes renders an award reviewable. An
applicant seeking to rely on an error by a commissioner
needs to
identify the error and prove that the error led the commissioner to
reach an unreasonable decision. A reading of the record
does not
support the applicant’s submissions of the errors the
commissioner committed. The evidence before the commissioner
was that
the applicant demanded to work overtime. When his demand was not
acceded to, in defiance of his team leader, he reported
for duty on
26 September 2010 for the overtime shift and not the one he was
allocated to. By his own admission, he refused to carry
out the
instructions to leave the workplace at the end of the shift that he
was allocated to and left at the end of the overtime
shift. The
commissioner’s decision that the dismissal was appropriate
cannot be criticised as he correctly found that progressive
discipline had not been successful in correcting the applicant’s
conduct.
[11]
The applicant seeks the award to be reviewed because he would have
presented his case differently. Part of his gripe is not
necessarily
based on the quality of his representation. An award cannot be
reviewed because, with hind sight, the applicant decides
that he
should have presented his case differently at the arbitration. The
criticism that the applicant’s legal representative
failed to
bring to the commissioner’s attention the outcome of an earlier
arbitration in which Lamani was found to have had
an agenda against
the applicant did not prove the link between his latest dismissal and
how Lamani was still pursuing the agenda.
Although the applicant
criticised his legal representative for not raising the setting aside
of some warnings, the criticism did
not extend to the final written
warnings the commissioner took into account in reaching his decision.
[12]
The amount of weight a commissioner attaches to evidence does not, on
its own render an award reviewable. The applicant needs
to show that
the amount of weight attached led the commissioner to reach an
unreasonable decision.
[2]
The applicant’s submission that the commissioner committed a
gross irregularity by attaching too much weight to the applicant’s
failure to put his version that he had an agreement with Lamani to
the third respondent’s witness does not assist the applicant.
The commissioner dealt with the omission and gave reasons for his
ruling.
[13]
Contrary to the applicant’s submissions, that the commissioner
failed to consider sanction less than dismissal
before reaching
the decision on the appropriateness of the sanction of dismissal, the
commissioner considered that the applicant
was on final written
warning for insubordination and that progressive discipline had been
ineffective to correct his conduct.
[14]
The applicant did not clear the first huddle of showing the error
made by the commissioner. He therefore could not rely on
his
submission that the commissioner’s errors deprived him of his
right to a fair hearing. The commissioner considered the
principal
issue before him. He assessed the evidence before him. His rulings
are based on the evidence before him and the decision
that he reached
is one a reasonable decision maker could reach.
[15]
In the premises, the following order is made:
15.1
The application is dismissed.
____________
Lallie J
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Mrs Van Staden of the Justice Centre
For
the Third Respondent: Advocate Grogran
Instructed
by: Joubert Galpine Searle
[1]
[2014] 1 BLLR 20 (LAC).
[2]
See
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as Amicus
Curiae)
[2013] 11 1074 (SCA) at para 25.