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[2015] ZALCJHB 38
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SATAWU obo Semate v National Bargaining Council for the Road Freight and Logistic Industries and Others (JR1724/13) [2015] ZALCJHB 38 (17 February 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 1724/13
DATE: 17 FEBRUARY 2015
Not Reportable
SATAWU Obo I
SEMATE
...............................................................................
Applicant
And
NATIONAL BARGAINING COUNCIL FOR THE
ROAD
FREIGHT AND LOGISTIC
INDUSTRIES
..........................................
First
Respondent
COMMISSIONER A
KRIEL
...........................................................
Second
Respondent
VALUE LOGISTICS
LTD
..................................................................
Third
Respondent
Heard: 16 January 2015
Delivered: 17 February 2015
Summary:
JUDGMENT
ORR AJ
Introduction:
[1] This is an application for the
review and setting aside of an arbitration award issued by the second
respondent (“the
arbitrator”) acting under the auspices
of the first respondent (“the NBCRFI”). In terms of the
award the arbitrator
found that the dismissal of the applicant’s
member (“Semate”) by the third respondent (“Value
Logistics”)
was substantively unfair but procedurally fair. The
arbitrator declined to reinstate Semate but instead awarded him one
month’s
compensation. Aggrieved by this the applicant has
brought this application. The applicant contends that the arbitrator
erred, in
a reviewable manner, in finding the dismissal procedurally
fair and in declining to reinstate Semate. Value Logistics opposes
the
review.
[2] In their papers Value Logistics
contended that Semate had waived any right to bring the current
application. This contention
was based on the fact that they had paid
the one month’s compensation to Semate shortly after receipt of
the award and that
Semate had accepted this payment. All of this
occurred prior to the launching of the review. Semate’s conduct
in accepting
the payment and not making any tender of repayment
amounted, according to Value Logistics, to a tacit waiver. This point
was explicitly
abandoned by Mr Van Niekerk, on behalf of Value
Logistics, during argument of this matter and I need not deal with it
any further.
[3] The review application was brought
out of time. Application for condonation was made and opposed by
Value Logistics. In order
to ensure that this matter be expeditiously
dealt with, at the hearing of this matter, I asked both parties to
address me on the
condonation application as well as the merits of
the review itself.
[4] According to the applicant the
arbitration award was received on 9 May 2013. This application
should, therefore, have been brought
on or before 20 June 2013. The
application was in fact delivered on 19 August 2013, some two months
late. Mr Baloyi who appeared
on behalf of the applicant accepted that
this was a significant delay.
[5] The explanation for the delay is
one which is presented all too often in this Court, delay on the part
of an employee’s
union in ensuring that review are brought
timeously. According to the founding affidavit on 20 June 2013, the
day on which the
application should have been launched, the union
organiser concerned informed Semate that a legal opinion was
required. This was
obtained by 24 June but the current attorneys of
record were only instructed to proceed with the review on 8 August
2013.
[6] This period, 24 June to 8 August,
represents the bulk of the period of delay, a period of six weeks.
The reason for this was,
according to the founding affidavit, “that
the business activities in the head office of the union came to a
halt for a period
of approximately 4 weeks due to the relocation to
the new premises” In support of this the applicant attaches a
memorandum
from the General Secretary of the applicant sent out to
all the provincial offices. However, the memorandum, whilst
confirming
the head office move, provides no support for the
contention that the business activities in the head office came to a
halt for
four weeks. On the contrary the General Secretary confirms
that the head office would be up and running as from the 1st of July,
three days after the move.
[7] When tasked about this apparent
contradiction Mr Baloyi submitted that notwithstanding the wording of
the affidavit it should
not be understood that the business of the
head office literally came to a halt for four weeks. Instead it
should be understood
to mean that the applicants matter was
overlooked as a result of the inevitable disruptions which follow a
move of this magnitude.
[8] Before moving to the merits of the
review itself it is necessary to set out some of the background to
the dismissal of Semate
and the subsequent arbitration proceedings.
Semate was employed by Value Logistics as a site supervisor. Several
complaints about
his conduct were received from customers.
[9] This led to him being summoned to a
disciplinary hearing on 15 February 2012. At the hearing he sought to
be represented by
a person who was not a fellow employee. A serious
altercation developed between this individual and members of
management developed,
resulting in persons from Value Logistics loss
control being called in to remove this individual. It was alleged
that during the
ensuing scuffle Semate shouted out “kill him,
kill him”.
[10] Semate faced a subsequent hearing
where the same charges were dealt with as well as an additional
charge relating to his alleged
conduct on 15 February 2012. A finding
of guilty led to his dismissal on 13 March 2012 and the subsequent
arbitration proceedings
which are the subject of this review.
[11] At the arbitration three witnesses
on behalf of Value Logistics testified that Semate had used the words
“kill him, kill
him” on 15 February 2012. Value Logistics
also played a recording which had been made on 15 February 2012 on
one of the
witness’s cell phone. The recording did not pick up
the words. Semate denied that he had ever uttered these words.
[12] The arbitrator found that no
misconduct had been proved against Semate in respect of the other
charges but found that Semate
had uttered the words “kill him,
kill him” during the incidents of 15 February 2015. The
arbitrator found that this
conduct “resulted in a total
breakdown of the trust relationship between the parties.”
However, somewhat confusingly,
despite finding that the trust
relationship between the parties had been totally destroyed, the
arbitrator found that the dismissal
was substantively unfair on the
basis that Value Logistics had not considered any disciplinary
measures short of dismissal. I do
not understand how the arbitrator,
having concluded that the conduct of Semate was destructive of the
employment relationship,
could take issue with Value Logistics not
looking at alternative penalties to dismissal. However neither party
took issue with
this and I take it no further. Semate was awarded one
month’s compensation. The dismissal was found to be
procedurally fair.
[13] As already indicated the applicant
originally sought to review the finding of procedural fairness, but
this was abandoned by
Mr Baloyi during the course of argument. Mr
Baloyi also clarified the challenges to the findings on substance,
which were not entirely
clear from the founding papers. The
applicant’s case stood on two legs according to Mr Baloyi.
Firstly, no reasonable decision
maker, considering the evidence
before him, could have come to the finding that Semate uttered the
words “kill him, kill
him” on 15 February 2015. Secondly
no reasonable decision maker could have concluded that the mere
utterance of these words
was destructive of the employment
relationship between Value Logistics and Semate.
[14] In respect of the first leg the
applicant relied on the fact that the arbitrator did not set out any
basis for accepting the
version of value logistics and rejecting that
of Semate. In respect of the second leg the applicant argued that
there was insufficient
evidence before the arbitrator to conclude
that the relationship was destroyed. Furthermore, because Semate’s
conduct did
not involve any element of dishonesty, the arbitrator
could not assume that his conduct would be destructive of the
relationship.
[15] The applicant went on to argue
that, were I persuaded of the merits of either of these arguments,
the award should be reviewed
and set aside and I should determine the
matter myself. Both parties agreed that the record was sufficient for
me to determine
the matter myself and that there was no need to refer
it back to the NBCRFI.
[16] Mr Baloyi specifically disavowed
any review based on allegation that the arbitrator had incorrectly
applied
section 193(2)
of the
Labour Relations Act 66 of 1995
. This
was correctly so in my view, as no mention of this was made in the
papers.
[17] Value Logistics on the other hand
contended that the award issued by the arbitrator was eminently
reasonable given the evidence
before him. It was also argued that
given the significant delay in launching the review application, and
the paucity of the explanation
in that regard, the merits of this
matter were not sufficiently strong to overcome these deficits and
condonation should be refused.
Analysis:
[18] In considering the application for
condonation it is trite that I must take into account the length of
the delay, the reason
for the delay and the prospects of success in
the matter (Melane v Santam Insurance Company Limited
1962 (4) SA 532
A). However I asked the representatives of both parties whether the
principles set out in Queenstown Fuel Distributors CC v Labuschagne
NO & others
[2000] 1 BLLR 45
(LAC) were still apposite. In that
matter the Labour Appeal Court held that condonation in reviews
relating to single individuals
should not be readily granted. The
excuse for non-compliance would need to be compelling, the attack on
the award cogent, and the
defect would have to result in a
miscarriage of justice were it to be allowed to stand. Neither party
were able to point me to
any authority to suggest that these
principles are no longer good law.
[19] I intend to apply the Queenstown
Fuel principles then in determining whether I should grant
condonation or not.
[20] As I have already indicated it was
accepted by the applicant that the delay was a significant one. The
explanation for the
bulk of the delay, the six weeks that the matter
ostensibly lay at the applicants head office can hardly be described
as compelling.
There are a number of problems with the explanation.
Firstly, the explanation, even on its own terms deals with only four
of the
six weeks of the delay. Secondly the explanation is barely
credible. It is extremely difficult to accept that the head office of
a union of the size of the applicant “came to a halt for a
period of approximately four weeks”. Furthermore this is
belied
by the memorandum from the General Secretary attached to the founding
affidavit. From the memorandum it is apparent that
the General
Secretary envisaged that the business activities of the head office
should be interrupted by only a few days as a result
of the move.
[21] Presumably alert to these problems
Mr Baloyi sought to persuade me that the explanation tendered in the
founding affidavit
should not be understood literally. Instead I
should understand that as a result of the move a state of
administrative chaos existed
in the applicant’s legal
department. This resulted in delays in attorneys being instructed to
deal with the review application.
[22] I do not think it is acceptable
for an applicant for condonation to ask the Court to infer anything
about an explanation for
the delay. An applicant should forthrightly
and fully set out an explanation for the delay to enable a Court to
properly assess
whether good cause has been shown. Furthermore a
party who wishes to oppose an application for condonation must be
given an opportunity
to deal with the explanation. It cannot be that
a respondent must be required to infer that the explanation for the
delay is something
other than what was set out in the founding
affidavit. I therefore conclude that far from a compelling
explanation being given
for the delay there is effectively no
explanation at all before me.
[23] I move on to the prospects of
success in the review. I am not of the view that either of the
attacks on the award have any
merit. As set out above the first
challenge to the award was that the arbitrator could not reasonably
have concluded that Semate
uttered the words “kill him, kill
him” on 15 February. Three witnesses testified to this effect
before the arbitrator.
Semate denied that he had said the words and
the tape recording was inconclusive. In answer to my question why it
was unreasonable
of the arbitrator to have accepted the evidence of
the three witnesses over that of Semate Mr Baloyi could only point to
the fact
that the reasons for the arbitrator doing so were not set
out in his award. To my mind this is a reference to the type of
“process
based unreasonableness” that was rejected by the
Supreme Court of Appeal in Herholdt v Nedbank Ltd (Congress of South
African
Trade Unions as amicus curiae)
[2013] 11 BLLR 1074
(SCA). On
the evidence before him the arbitrator reasonably concluded that
Semate uttered the words “kill him, kill him”.
[24] The second challenge to the award
was that the arbitrator unreasonably concluded that by uttering these
words Semate destroyed
the employment relationship. I find even less
merit in this challenge than in the first. Mr Baloyi suggested that
the arbitrator’s
finding was unreasonable for two reasons.
Firstly the offence did not involve an element of dishonesty and
secondly that Value
Logistics had not led any convincing evidence to
show that the employment relationship was broken.
[25] Although dishonesty is almost
always destructive of the employment relationship, it is by no means
axiomatic that an offence
which does not involve dishonesty does not
destroy the employment relationship. Mr Baloyi accepted that an
employee who is grossly
insubordinate to a superior would also
destroy the employment relationship. The fact that Semate’s
conduct did not involve
dishonesty in no way suggests that the
arbitrator’s finding that it was destructive of the employment
relationship was unreasonable.
[26] Two of the witnesses for Value
Logistics, both of them managers, testified that they could no longer
work with Semate after
the events of 15 February. This evidence was
left unchallenged in cross examination. Given the evidence before him
there was nothing
unreasonable in the arbitrator coming to a finding
that the conduct of Semate had destroyed the employment relationship.
[27] In summary therefore I find that,
in respect of the condonation application no compelling explanation
has been given for a
significant delay. The attack on the award, far
from being cogent is without merit, and no miscarriage of justice
would result
if the award were allowed to stand. Condonation is
refused.
Costs:
[28] I would normally have had no
hesitation in ordering that costs should follow the result in this
matter. However Value Logistics
were represented by an employee, Mr
Van Niekerk. When I questioned him about whether in those
circumstances I could order costs
at all, Mr Van Niekerk indicated
that the Value Logistics would not be seeking costs.
Order
I therefore make the following order:
1. The application for condonation for
the late filing of the review application is dismissed;
2. There is no order as to costs.
Orr AJ
Acting Judge of the Labour Court of
South Africa
APPEARANCES:
On behalf of the Applicant: Mr
Baloyi of M M Baloyi Attorneys
On behalf of the Respondent: Mr Van
Niekerk IR manager of the third respondent