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[2015] ZALCJHB 103
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National Union of Mine Workers and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR2772/12) [2015] ZALCJHB 103 (19 March 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT, JOHANNESBURG
JUDGMENT
Case
no: JR2772-12
DATE:
19 MARCH 2015
Not
Reportable
In the matter between
NATIONAL UNION OF MINE
WORKERS
................................................................
First
Applicant
MOTSHABALEKGOSI
MOFFAT
.............................................................................
Second
Applicant
And
COMMISION FOR CONCILAITION
MEDIATION AND
ARBITRATION
..........................................................................
First
Respondent
COMMISSONER NKOSI
SIZWE JOSEPH
N.O
...............................................................................................
Second
Respondent
MINTEK
......................................................................................................................
Third
Respondent
Heard: 20 November 2014
Delivered: 19 March 2015
Summary: Review application. Unfair labour
practice. Failure to employ retrenched employees in terms of the
collective agreement.
JUDGMENT
MOLAHLEHI, J
Introduction
[1]
This
is an application to review and set aside the arbitration award made
by the second respondent (“the Commissioner”)
under case
number GAJB14178-12 dated 29 October 2012, in terms of which it was
determined that the third respondent did not commit
an unfair labour
practice. It was for this reason that second applicant’s claim
was dismissed.
Background facts
[2]
The
dispute which the applicants referred to the first respondent arose
from the allegation that the third respondent failed to
comply with
the retrenchment agreement concluded by the parties before the
dismissal of the second respondent. The dispute relates
to the
alleged unfair labour practice in terms of which it was alleged that
third respondent failed to employ the second respondent
after a
vacancies became available subsequent to his retrenchment.
[3]
The
unfair labour practice claim was based on the provisions of clause
2.5 (which is hereafter referred to as the “recall
clause”)
of the settlement agreement which reads as follows:
“
Should
there exist the same, similar or suitable vacancies within Mintek in
the period of at least 12 months from the date of their
employment
termination Mintek shall recall those employees who were causuals
[sic] of retrenchment. Fair recall procedure shall
apply. Shop
stewards shall be informed and observe the fairness of the process
and shall further take part in tracing former employees”.
[4]
The
retrenchment of the affected 38 employees took place on 31 January
2011. A year later the third respondent in seeking to fill
in the 20
vacancies that had arisen invited the retrenched employees to
indicate if they would wish to be reemployed. A total
of 37
retrenched employees applied for those vacant posts. The second
applicant applied for the positions of operator, storeman,
principal
operator, chief operator and junior operator
.
[5]
The
case of the third respondent is that in launching the process of
reemploying the retrenched employees in the 20 posts it contacted
them through and with the assistance of the shop-stewards. In
processing the appointment of the retrenched employees for the 20
posts the third respondent conducted interviews and in selecting
those who would fill in the vacant posts applied the following
criteria:
(a)
Past
performance rating.
(b)
Education
level for chief operating officer- matric being a minimum
requirement.
(c)
Interview
scores in the event of equal performance rating
[6]
The
primary criteria for selection of the 20 was according to the third
respondent consideration of the rate of past performance.
Those of
the retrenched employees who achieved the top score from their
previous performance were selected for reemployment. The
second
applicant was according to the third respondent not selected because
he scored 3.1 in his past performance and that placed
him at 27 in
the ranking. It was for this reason that the second applicant was not
reemployed.
[7]
The
second applicant was unhappy with the outcome of the selection for
reemployment of the retrenched employees and accordingly
complained
that his non-reemployment constituted an unfair labour practice. The
dispute was arbitrated after the failure of the
conciliation.
The
grounds of review
[8]
The
applicant contends that the arbitration award is reviewable because
the Commissioner failed:
a.
To
conduct himself in the same manner as a reasonable decision maker
could have.
b.
To
import law into his conclusion
c.
To
apply the legal principles alternatively misconstrued the case by
following irrelevant case law.
[9]
The
applicant further argued that the Commissioner was biased and
unreasonable.
Evaluation
[10]
The
test to apply in considering a review application is whether the
decision reached by the Commissioner is one that a reasonable
decision maker could not reach?
[1]
In
relation to gross irregularity or misconduct the approach to adopt is
set out in
Gold
Fields South Africa (Pty) Ltd ( Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and Others
,
[2]
in the
following terms:
“
The
court in
Sidumo
was
at pains to state that arbitration awards made under the Labour
Relations Act (LRA) continue to be determined in terms of s145
of the
LRA but that the constitutional standard of reasonableness is
“suffused” in the application of s145 of the LRA.
This
implies that an application for review sought on the grounds of
misconduct,
gross
irregularity in the conduct of the arbitration proceedings,
and/or
excess of powers
will
not lead automatically to a setting aside of the award if any of the
above grounds are found to be present. In other words,
in a case such
as the present, where a gross irregularity in the proceedings is
alleged, the enquiry is not confined to whether
the arbitrator
misconceived the nature of the proceedings, but extends to whether
the result was unreasonable, or put another way,
whether the decision
that the arbitrator arrived at is one that falls in a band of
decisions to which a reasonable decision-maker
could come on the
available material.”
[11]
The
principal issue which was before the Commissioner in this matter is
whether the third respondent committed an unfair labour
practice in
not employing the individual applicant after embarking on the
recalling process in terms of clause 2.5 of the retrenchment
agreement. Considering all the evidence and the materials that
properly served before the Commissioner, I am of the view that the
conclusion that the third respondent did not commit an unfair labor
practice is in line with the constitutional standard of
reasonableness.
[12]
In
compliance with the provisions of clause 2.5 of the retrenchment
agreement the third respondent with the assistance of the shop
steward invited the retrenched employees to indicate if they wished
to be re-employment. The number of employees who indicated
their wish
to be reemployment was more than the 20 positions which needed to be
filled. The retrenchment agreement does not provide
the criteria to
use in the event where the vacant positions are less than the number
of the employees who wished to be reemployed.
In seeking to ensure
that the selection was fair the third respondent introduced the
criteria for the purposes of selecting the
20 people from the over 30
who had expressed an interest in being reemployed.
[13]
As
stated the main selection criteria used were previous performance
rating. There is no evidence on the record showing that the
applicant
challenged the veracity of those selection criteria. The applicants
have also not challenged the rating of his performance
score. In the
absence of that challenge, there is no basis for attacking the
conclusion reached by the Commissioner that no unfair
labour practice
was committed by the respondent.
[14]
The
applicants raised another grounds of review in the supplementary
affidavit. In my view none of those grounds takes the case
of the
applicant any further in relation to showing that the decision
reached by the Commissioner was unreasonable or that the
Commissioner
committed gross irregularity or misconduct himself in the manner in
which he conducted the arbitration proceedings.
[15]
The
issue of interpretation and application of the retrenchment agreement
in terms of
section 24
of the
Labour Relations Act of 1995
was never
raised as an issue for consideration during the arbitration hearing.
It therefore follows that there is no basis on that
ground to
interfere with the arbitration award.
[16]
The
same applies to the issue of jurisdiction relating to the provisions
of
section 187
of the LRA. The applicants contend that in this regard
that the CCMA did not have jurisdiction to entertain the matter
because
the second applicant had stated that he was left out because
of being a shop steward. Whilst it is clear that the reference was
made during the arbitration hearing to the issue of discrimination,
this was however never pursued by the applicant. In fact the
respondent's representative invited the applicants to indicate and
clarify whether they wished to pursue the issue of discrimination
during the arbitration hearing. In response the applicants stated
that the issue of discrimination was used loosely. There is thus
no
evidence on the record that would support the proposition that the
dispute ought to have been categorized as falling within
the
provisions of
section 187
of the LRA. The criticism against the
Commissioner that he failed to consider the issue of jurisdiction in
relation to discrimination
accordingly bears no merits.
[17]
The
other point raised by the applicant is that the Commissioner failed
to investigate the possibility of the existence of future
vacancies.
This was again not a matter which the Commissioner was called upon to
consider and there is no evidence pointing in
that direction.
Accordingly that ground of review is unsustainable.
[18]
The
case which the applicant sought to make out required him to produce
evidence to show that in implementing the recall clause
the third
respondent refused and or failed to reemploy him in the manner that
contravened the provisions of clause 2.5 of the retrenchment
agreement.
[19]
The
other issue that arose in this matter had to do with the fourth
affidavit which the third respondent introduced. Whilst I appreciate
the basis for introducing the fourth affidavit, it does not however
have any bearing on the review itself. It was for this reason
that I
also found
that
its introduction did not attract costs.
[20]
In
light of the above I am of the view that the applicants have failed
to make out a case for review.
Order
[21]
In
the premises the applicant’s application to review and set
aside the arbitration made under case number
GAJB14178-12
dated 29 October 2012,
is
dismissed with no order as to costs.
E
MOLAHLEHI
Judge
of the Labour Court Johannesburg
Appearances:
For the Applicant: Union Official
For
the Respondent: Brett Abrahams of Webber Wentzel
[1]
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others 2007) 28 ILJ 2405
(CC).
[2]