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[2015] ZALCJHB 4
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Assmang Limited (Assmang Chrome Dwarsriver Mine) v Commission for Conciliation Mediation And Arbitration and Others (JR2584/2012) [2015] ZALCJHB 4; [2015] 6 BLLR 589 (LC); (2015) 36 ILJ 2203 (LC) (14 January 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
No: JR2584/2012
DATE:
14 JANUARY 2015
Reportable
In
the matter between:
ASSMANG
LIMITED (ASSMANG CHROME DWARSRIVER
MINE)
.............................................
Applicant
And
COMMISSION
FOR CONCILIATION, MEDIATION AND
ARBITRATION
.......................
First
Respondent
MATSEPE,
H N;
N.O
........................................................................................................
Second
Respondent
CASPER
DU
PLESSIS
.........................................................................................................
Third
Respondent
NATIONAL
UNION OF
MINEWORKERS
........................................................................
Fourth
Respondent
Heard:
01 July 2014
Delivered:
14 January 2015
Summary:
Application for review in terms of s.
145 of the LRA; Commissioner finding that the evidence is evenly
balanced and deciding the
dispute on the onus of proof; No attempt
made to weigh up or balance the probabilities; No consideration of
the credibility of
the witnesses; Commissioner misconceiving the
nature of the enquiry and his duties in relation thereto, thereby
committing gross
irregularity within the meaning of s. 145(2)(a)(ii)
of the LRA; Outcome not one that a reasonable decision maker could
reach; Arbitration
award set aside with no order as to costs.
JUDGMENT
VOYI AJ
Introduction
[1]
This
is an application to review and set aside an arbitration award that
was issued by Commissioner Harold Ntale Matsepe (hereinafter
“the
Commissioner”) on 10 September 2012 under case number
LP1053-12. The application is launched under s. 145 of the
Labour
Relations Act.
[1]
[2]
In his arbitration award, the Commissioner
concluded that the dismissal of the Third Respondent, by the
Applicant (hereinafter “the
Applicant” or “the
employer”), was procedurally fair but substantively unfair.
[3]
As relief, the Commissioner granted
retrospective reinstatement with no order as to costs.
[4]
The application for review is opposed by
the Third and Fourth Respondents, who contend
inter
alia
that the Applicant has failed to
prove that there are any defects in the arbitration proceedings
within one of the grounds envisaged
in s. 145(2)(a) of the LRA.
The arbitration
award under review
[5]
Following the undisputed dismissal of the
Third Respondent, being Mr Casper du Plessis (“Mr du Plessis”),
his Trade
Union (the Fourth Respondent herein) lodged on his behalf
an unfair dismissal dispute with the Commission for Conciliation,
Mediation
and Arbitration (“the CCMA”), the First
Respondent herein.
[6]
The dispute was ultimately arbitrated by
the Commissioner, who thereafter handed down the arbitration award
under review.
[7]
In his analysis of evidence and argument,
the Commissioner accepted that dismissal was common cause. He,
accordingly, held that
the ‘onus’ was on the employer to
prove that Mr du Plessis was fairly dismissed.
[8]
Having
realised that he was practically faced with two conflicting
versions,
[2]
the Commissioner
took the view that he had ‘…no basis on which to
discredit any of the two versions’.
[9]
In arriving at his ultimate decision, the
Commissioner articulated himself as follows:
‘
8.14
When the totality of the evidence is viewed on a balance of
probabilities it cannot be said that the [employer] succeeded to
prove the fairness of [Mr du Plessis’] dismissal.
This
is due to the fact that where evidence of both sides is evenly
balanced [the employer] cannot be deemed to have succeeded to
discharge its onus
.
8.15 My finding
therefore is that the [employer] did not succeed to prove that [Mr du
Plessis] was fairly dismissed.’ (the
underlining is mine)
[10]
Before coming to the above decisive
finding, the Commissioner highlighted the two conflicting versions.
His synopsis of the testimony
given by the Applicant’s main and
only witness was as follows:
‘
8.5
Mr. Joubert testified inter alia, that he found the workplace unsafe
and he took pictures to show that the said workplace was
unsafe. He
gave extensive evidence on how the photos are to be linked to the
areas of strike 7. He also testified extensively in
how explosives
bag was found and the danger associated with the bag being left open
whilst full of explosives.’
[11]
Having recorded the above, the Commissioner
found that the evidence of the Applicant’s witness was, when
viewed on its own,
‘…satisfactory and seems reasonably
possibly true.’
[12]
The Commissioner noted that Mr Joubert’s
testimony was directly opposed by that of Mr du Plessis and his
witness, the latter
being Mr Jaco Bezuidenhout (“Mr
Bezuidenhout”), who was the shift boss at the time of the
incident which resulted in
the dismissal of Mr du Plessis.
[13]
In outlining the testimony of Mr
Bezuidenhout, the Commissioner stated the following:
‘
8.8
The evidence of the shift boss, which is recorded above, is that he
allowed [Mr du Plessis] to leave at 13H15. He took over
from [Mr du
Plessis] and received a locked explosives bag, as he has a blasting
certificate.
8.9 He further
testified that [Mr du Plessis] declared the workplace safe. He also
checked and ensured that it was safe. He opposed
the testimony of Mr.
Joubert that the workers were withdrawn. His version is that the
workers were not withdrawn and that the said
area is of high
production that they could not just withdrawn employees.
8.10 He further
opposed the issue of photos by stating that the photos could have
been taken anyway (sic) since they do not show
the markings of the
workplace as well as machines and support structures. Further that he
saw Mr. Joubert take pictures at the
back area where no work is done.
8.11 His position is
that barring is a continuous process but does not mean that the work
place was never declared safe.’
[14]
In dealing with the conflicting versions,
the Commissioner simply found that he ‘…had no basis on
which to discredit
any of the two versions.’ The crux of the
Commissioner’s decision was that ‘…where the
evidence of both
sides is evenly balanced [the employer] cannot be
deemed to have succeeded to discharge its onus.’ It was,
therefore, on
this basis that he found against the Applicant.
Evaluation
[15]
To
put matters in context, I commence by pointing out that arbitration
awards of the CCMA are final and binding.
[3]
It also warrants mentioning that no appeal lies against a CCMA
arbitration award.
[4]
[16]
Therefore,
the only remedy available to a party aggrieved by an outcome of
arbitration proceedings under the auspices of the CCMA
is to launch
‘review’ proceedings before this Court. Under s.145 (2)
(a) of the LRA, three grounds for review are provided
for.
[5]
[17]
The Commissioner’s arbitration award
is being challenged on the basis of only one of the three allowable
grounds for review
under s. 145(2) (a) of the LRA, namely, that the
Commissioner committed a gross irregularity in the conduct of the
arbitration
proceedings. It is, therefore, not the Applicant’s
case that the Commissioner committed ‘misconduct’ or
‘exceeded
is powers’.
[18]
In
dealing with applications for review, the standard test to be applied
was postulated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
.
[6]
That test basically asks the question: ‘Is the decision reached
by the commissioner one that a reasonable decision maker
could not
reach?’
[19]
It
has been held that the aforesaid standard test has not extinguished
the specific grounds for review permitted under s. 145(2)(a)
and (b)
of the LRA.
[7]
Instead, those
specific grounds are to be ‘suffused’ with the
constitutional standard of reasonableness.
[8]
On this point, the Labour Appeal Court (“the LAC”) also
had occasion to express itself as follows:
‘
Nothing
said in
Sidumo
means that the grounds of review in s 145 of the Act are obliterated.
The Constitutional Court said that they are suffused by
reasonableness...’
[9]
[20]
In
rejecting the ‘process related review’ approach, the LAC
stated in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) CCMA and Others
[10]
that what is required in matters of the present nature is ‘…first
to consider the gross irregularity that the arbitrator
is said to
have committed and then to apply the reasonableness test established
by
Sidumo.
’
[21]
In this matter, the starting point should
be whether or not the Commissioner committed a gross irregularity in
the conduct of the
arbitration proceedings as contemplated by s.
145(2)(a)(ii) of the LRA.
[22]
I have no hesitation in rejecting the
Applicant’s complaint that the Commissioner failed to consider
and/or rejected/or omitted
to attach the appropriate weight to the
photographic evidence (and the testimony presented therein) tendered
in support of the
charges proffered against Mr du Plessis.
[23]
I
agree with the Third and Fourth Respondents’ submission that
the weight and relevance to be attached to particular facts
are not
in and of themselves sufficient for the award to be set aside, but
are only of any consequence if their effect is to render
the outcome
unreasonable. This position emanates from the decision of the Supreme
Court of Appeal (“the SCA”) in
Herholdt
v Nedbank Ltd
(
supra
).
[11]
[24]
I,
equally, have no hesitating in rejecting the complaint that the
Commissioner failed to properly apply his mind to the evidence
before
him to the extent contended by the Applicant. It is clear from the
heads of argument submitted by the Applicant that this
complaint was
informed by the ‘process related unreasonableness’ which
has since been rejected by both the SCA
[12]
and the LAC.
[13]
[25]
The
concept of ‘gross irregularity’ was aptly explained by
Schreiner J (as he then was) in
Goldfields
Investment Ltd and Another v City Council of Johannesburg and
Another
,
[14]
wherein it was held that gross irregularities fall broadly into two
classes, they being ‘patent’ irregularities and
‘latent’
irregularities.
[26]
In
upholding the aforesaid second class of ‘gross
irregularities’
[15]
as
still being good law in the context of s. 145(2)(a)(ii) of the LRA,
the SCA held as follows in
Herholdt
v Nedbank Ltd
(
supra
):
[16]
‘
That
does not mean that a latent irregularity, as Schreiner J originally
used that term in the
Goldfield
Investments
case, is not a gross
irregularity within the meaning of s 145(2)(a)(ii). It is, but only
in the limited sense mentioned earlier,
where the decision maker has
undertaken the wrong enquiry or undertaken the enquiry in the wrong
manner...’
[27]
It was, particularly, the reasoning of
Schreiner J in
Goldfields Investment Ltd
and Another v City Council of Johannesburg and Another
(
supra
)
that a mistake which ‘…leads to the Court’s not
merely missing or misunderstanding a point of law on the merits,
but
to it misconceiving the whole nature of the enquiry, or of its duties
in connection therewith…’ amounts to a gross
irregularity.
[28]
In
ultimately endorsing this reasoning, the SCA pertinently held as
follows in
Herholdt
v Nedbank Ltd
(
supra
):
[17]
‘…
A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2)(a) of the
LRA. For a defect in the conduct of the proceedings to amount to a
gross irregularity as contemplated by s 145(2)(a)(ii),
the
arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result...’ (the underlining is mine)
[29]
In this matter, the Commissioner found that
the evidence of both parties was evenly balanced, and as a result he
was unable to come
to the conclusion that the Applicant had
discharged its onus. The Commissioner, therefore, decided the dispute
before him purely
on the basis of onus of proof.
[30]
As the ‘pans of the scale’
were, according to the Commissioner evenly balanced, his decisive
finding was that in such
an instance the employer ‘…cannot
be deemed to have succeeded to discharge its onus.’
[31]
This
ordinarily occurs where a trial court is not satisfied with the
version of either party as to exactly what occurred and ends
up
deciding the matter simply on the ‘onus’ of proof by an
order for absolution from the instance.
[18]
[32]
The
approach adopted by the Commissioner attempts to resemble the
conclusion reach in
National
Employers’ General Insurance Co Ltd v Jagers
,
[19]
where Eksteen AJP held thus:
‘…
Where
therefore the probabilities are evenly balanced, and where there can
be no finding on the relative credibility of the witnesses,
it seems
to me that the only conclusion to which the Court could have come was
that the respondent had failed to discharge the
onus
which rested on him.’
[33]
My reading of the above-quoted conclusion
highlights two pivotal aspects which the Commissioner missed in the
present matter. The
first is that there has to be a balancing of the
probabilities. The second is that there has to be a consideration of
the credibility
of the witnesses.
[34]
In my considered view, it is only when
these two undertakings do not offer any assistance that a court (or a
commissioner in the
present context) would inevitably come to the
conclusion that the party upon whom the ‘onus’ rested had
failed to discharge
same.
[35]
In deciding on an alleged unfair dismissal
dispute, a commissioner of the CCMA goes by balancing the
probabilities. In making a
decision on the dispute before him or her,
the appointed commissioner establishes facts by a preponderance of
probability. That
is the ordinary standard of proof in civil
proceedings.
[36]
It is, accordingly, a CCMA commissioner’s
duty to weigh up or balance the probabilities. It has to be accepted
that in so
doing, the commissioner would not exclude every reasonable
doubt. The standard of proof in civil proceedings is lower than that
the criminal standard of proof beyond reasonable doubt.
[37]
It is worth reiterating that there is a
clear distinction between probabilities and credibility. At times,
these two concepts are
not dealt with in their proper context. In my
view, the probabilities are at the heart of the enquiry in
arbitration proceedings.
They have to be established as they are
decisive to the outcome.
[38]
Although
I align myself with the judgment of Fourie AJ in
Solidarity
obo van Zyl v KPMG Services (Pty) Ltd and Others
[20]
in relation to the effect of failure to address the credibility of
the witnesses at arbitration, I find that failure to weigh up
the
probabilities can amount to a reviewable irregularity. I expand on
this later in this judgment.
[39]
For a commissioner to simply find that the
evidence of both sides is evenly balanced and to, therefore, decide a
dispute purely
on the question of onus is wanting in the extreme.
That is more so if the evidence of both sides is diametrically
opposed, as it
was the case in the present matter at arbitration.
[40]
In
Selamolele
v Makhado
,
[21]
the approach to the question whether the onus has been discharged was
dealt with as follows:
‘
Ultimately
the question is whether the onus on the party, who asserts a state of
facts, has been discharged on a balance of probabilities
and this
depends not on a mechanical quantitative balancing out of the pans of
the scale of probabilities but, firstly, on a qualitative
assessment
of the truth and/or inherent probabilities of the evidence of the
witnesses and, secondly, an ascertainment of which
of two versions is
the more probable.’
[41]
In this matter, there was simply no attempt
made to weigh up or test any of the conflicting versions against the
inherent or general
probabilities. The Commissioner took the view
that neither of the two conflicting versions could be discredited.
[42]
Logically,
I find difficulties in accepting the Commissioner’s approach.
As there were two conflicting versions before him,
the Commissioner
ought to have accepted that these versions were mutually destructive.
They both could not stand. The technique
that was espoused by the SCA
in
Stellenbosch
Farmers’ Winery Ground Ltd and Another v Martell et Cie
[22]
to resolve factual disputes identifies three considerations, they
being (a) credibility of the witnesses, (b) their reliability,
and
(c) the ‘probabilities’.
[43]
The
last of these considerations was explained to necessitate ‘…an
analysis and evaluation of the probabilities or
improbabilities of
each party’s version on each of the disputed issues.’
[23]
[44]
As indicated herein before, there was no
attempt made by the Commissioner to weigh up the probabilities or
improbabilities of the
two conflicting versions before him
.
[45]
In my view, this is not a matter where it
can be said that there were simply no probabilities; one way or the
other. There was the
testimony of three witnesses who testified
before the Commissioner at arbitration. In addition, there was
documentary and photographic
evidence that was tendered by the
parties, and upon which evidence was led. There was, even, much in
the way of surrounding circumstances
to create strong probabilities.
[46]
In
African
Eagle Life Assurance Co Ltd v Cainer
,
[24]
it was held that once probabilities exist, they ‘…have
to be weighed up to determine whether the plaintiff has discharged
its onus…’
[47]
In the context of this matter, the
following passage from
Stellenbosch
Farmers’ Winery Ground Ltd and Another v Martell et Cie
(
supra
)
is also of relevance:
‘…
In
the light of its assessment of (
a
),
(
b
) and
(
c
) the
court will then, as a final step, determine whether the party
burdened with the onus of proof has succeeded in discharging
it...’
[48]
It is, therefore, clear that the ultimate
determination of whether the onus of proof has been discharged is a
final step after the
assessment of (a) the credibility of the
witnesses, (b) their reliability and, most importantly, (c) the
‘probabilities’.
[49]
It
is possible for a Commissioner to arrive at his decision simply on
the probabilities and without having to make specific findings
of the
credibility of the witnesses. In
National
Employers’ General Insurance Co Ltd v Jagers
(
supra
),
[25]
it was held thus:
‘…
it
is only where a consideration of the probabilities fails to indicate
where the truth probably lies, that recourse is had to an
estimate of
relative credibility apart from the probabilities.’
[50]
In the present matter, the Commissioner
went on to deal with the final step of determining whether the onus
of proof was discharged
without having
embarked upon the consideration of the probabilities. He did not even
attempt to make any finding on the credibility
of the witnesses that
testified before him.
[51]
It is, therefore, my judgment that the
Commissioner not only misconceived the nature of the enquiry, he
equally misconceived his
duties in connection with the proceedings
before him. This amounts to gross irregularity as contemplated by s.
145(2)(a)(ii) of
the LRA.
[52]
Having found that the Commissioner
committed ‘a gross irregularity’ within the meaning of s.
145(2)(a)(ii), as aforesaid,
I am called upon to determine if the
award is, in any event, one that a reasonable commissioner could not
reach.
[53]
The enquiry into the reasonableness of the
decision arrived at by the Commissioner requires that I examine the
merits of the case.
This task is informed by the standard review test
in
Sidumo
,
as it was explained in
Herholdt v
Nedbank Ltd
(
supra
)
in the following terms:
‘…
That
test involves the reviewing court examining the merits of the case
'in the round' by determining whether, in the light of the
issue
raised by the dispute under arbitration, the outcome reached by the
arbitrator was not one that could reasonably be reached
on the
evidence and other material properly before the arbitrator. On this
approach the reasoning of the arbitrator assumes less
importance than
it does on the SCA test, where a flaw in the reasons results in the
award being set aside. The reasons are still
considered in order to
see how the arbitrator reached the result. That assists the court to
determine whether that result can reasonably
be reached by that
route. If not, however, the court must still consider whether, apart
from those reasons, the result is one a
reasonable decision maker
could reach in the light of the issues and the evidence.’
[26]
[54]
In embarking upon this task, I am mindful
of the fact that I must avoid ‘judicial overzealousness’
in setting aside
an award which does not coincide with my own views.
[55]
The decision reached by the Commissioner in
this matter was that the Applicant had not succeeded in proving that
Mr du Plessis was
fairly dismissed and therefore the dismissal was
substantively unfair.
[56]
In this matter, I am unable to divorce the
archetypal conclusion that the dismissal was substantively unfair
from the decisive finding
that the Applicant did not succeed to prove
that the dismissal was fair. The latter was to me the outcome or the
decision reached
by the Commissioner in this matter.
[57]
All things considered, it is my judgment
that the Commissioner’s award is clearly one that no reasonable
decision maker could
have reached. The Commissioner had himself found
that the evidence of the Applicant’s witness was, on its own,
satisfactory
and appeared reasonably possibly true. He, particularly,
could not find any basis to discredit the version of Mr Joubert, the
Applicant’s
witness. These two factors, when viewed against the
seriousness of the misconduct charges that were levelled against Mr
du Plessis,
render the Commissioner’s decision unsustainable on
review. The Commissioner’s decision, in my view, clearly fall
outside
the realm of what is reasonable.
[58]
It is not my task to determine the merits
of the dismissal
de novo
.
Mine is to simply examine the decision reached by the Commissioner
against what is reasonable.
[59]
I have already identified the decision for
consideration in this regard. It is, to me, one that no reasonable
decision maker could
have reached. It was informed by the
Commissioner having misconceived the nature of the enquiry and his
duties in connection therewith.
[60]
It is axiomatic that a reasonable
commissioner could not have misconceived the nature of the enquiry,
let alone his duties in connection
with such an enquiry. It is my
judgment, therefore, that the Commissioner did not only commit gross
irregularity in the conduct
of the arbitration proceedings, his award
is equally one that no reasonable decision maker could have reached
under the circumstances.
[61]
In the circumstances of this matter, I come
to the conclusion that the application for review must succeed. As
for costs I am of
the view that each party should bear their
respective costs. The requirements of law and fairness dictate that I
should not condemn
in costs Respondents who were simply defending a
relief that was afforded to them by a CCMA commissioner.
Order
[62]
I, accordingly, make the following order:
(i)
The arbitration award handed down by
Commissioner Harold Ntale Matsepe on 10 September 2012 under case
number LP1053-12 is hereby
reviewed and set aside.
(ii)
The dispute is referred back to the First
Respondent for arbitration
de novo
before a different commissioner.
(iii)
There is no order as to costs.
Voyi AJ
Acting Judge of
the Labour
Court
of South Africa
APPEARANCES:
For the
Applicant: Advocate A. Mosam
Instructed by:
Cliffe Dekker Hofmeyr Inc.
For the
Respondent: Advocate P. Nkutha
Instructed
by: Finger Phukubje Inc.
[1]
No.
66 of 1995 (“the LRA”)
[2]
This
meant that the acceptance of the one entailed the rejection of the
other, as both versions could not be true.
[3]
Under
s.143 (1) of the LRA, it is particularly stipulated that an ‘…
award
issued by a commissioner is final and binding
...’
[4]
Shoprite
Checkers (Pty) Ltd v CCMA and Others
(2009) 30
ILJ
829 (SCA) at para 26;
National
Union of Mineworkers and Another v Samancor Ltd (Tubatse
Ferrochrome) and Others
(2011)
32
ILJ
1618 (SCA) at para 5
[5]
The
first is that the commissioner committed misconduct in relation to
the duties of the commissioner as an arbitrator. The second
is that
he committed a gross irregularity in the conduct of the arbitration
proceedings. The third is that he exceeded the commissioner’s
powers.
[6]
(2007)
28
ILJ
2405 (CC) at para 110
[7]
Herholdt
v Nedbank Ltd (COSATU as Amicus Curiae)
(2013)
34
ILJ
2795 (SCA) at para 14
[8]
Ibid
[9]
Fidelity
Cash Management Service v CCMA and Others
(2008)
29
ILJ
964 (LAC) at para 101
[10]
(2014)
35
ILJ
943 (LAC) at para 15
[11]
At
para 25
[12]
In
Herholdt
v Nedbank Ltd
(
supra
)
at para’s 16 - 21
[13]
In
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
(
supra
)
at para 15
[14]
1938
TPD 551
[15]
It
being that of ‘latent irregularities’.
[16]
At
para 21
[17]
At
para 25
[18]
Sager
Motors (Pvt) Ltd v Patel
1968
(4) SA 98
(R.,AD) at p.101G-H
[19]
1984
(4) SA 437
(E) at p.444A-C
[20]
(2014)
35
ILJ
1656 (LC)
[21]
1988
(2) SA 372
(VSC) at pp.374J-375B
[22]
2003
(1) SA 11
(SCA) at para 5
[23]
Ibid
[24]
1980
(2) SA 234
(W) at p.238A-C
[25]
At
pp.440H - 441B
[26]
At
para 12