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[2015] ZALCJHB 105
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Spazio Lighting (Pty) Ltd v Metal and Engineering Industries Bargaining Council and Others (JR809/13) [2015] ZALCJHB 105 (19 March 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 809-13
DATE: 19 MARCH 2015
Not Reportable
In the matter between:
SPAZIO LIGHTING (PTY)
LTD
............................................................................................
Applicant
And
THE METAL AND ENGENEERING
INDUSTRIES BARGAINING
COUNCIL
................................................................
First
Respondent
SEELE MOKOENA
N.O
.........................................................................................
Second
Respondent
THE NATIONAL UNION OF
METAL WORKERS OF SOUTH
AFRICA
.............................................................
Third
Respondent
THEMBA JOHANNES
HLONGWANE
................................................................
Fourth
Respondent
NKOSIYAKHE
ZUMA
................................................................................................
Fifth
Respondent
MZIWANELE
MFUNDISI
.........................................................................................
Sixth
Respondent
Heard: 20 November 2014
Delivered: 19 March 2015
Summary: Review application. The employee
charged with misconduct of intimidation during the strike. The
applicant failing to call
as witness those employees who were alleged
to have been intimidated.
JUDGMENT
MOLAHLEHI, J
[1]
This
is an application to review and set aside the arbitration award made
by the second respondent (the Commissioner) under case
number MEGA.
3847 dated 2 April 2013 in terms of which the dismissal of the
individual respondents was found to have been substantively
unfair
and, accordingly, the applicant was ordered to reinstate them.
The background facts
[2]
The
individual respondents who were prior to their dismissal employees of
the applicant were charged and dismissed for misconduct
related to
their conduct during the strike action. The charges against them read
as follows:
‘
Charge
1: Gross misconduct in that you committed an act of misconduct in
that you unlawfully and intentionally intimidated non-striking
employees and prevented them from entering the Company or about 5
July 2011.
The misconduct is compounded in
the light of the fact that you threatened non-striking employees with
use of physical violence and
verbally shouted at non-striking
employees and assaulting with weapons when they entered the Company’s
premises or about
5 July 2011.
Charge 2: Gross Insubordination
in that you wilfully, intentionally and deliberately failed to follow
Management’s instructions
to cease and desist your unlawful
actions intimidation, harassment and threat of violence against
non-striking employees
on 5
th
of July 2011, was picketing
outside the Company’s premises.’
[3]
The
individual respondents assisted by their union, NUMSA referred an
alleged unfair dismissal dispute to the first respondent (the
bargaining Council). A failure to resolve the dispute during the
conciliation process led to the matter being referred to arbitration
before the arbitrator. As indicated above the arbitrator found that
the dismissal was unfair and ordered that the individual respondents
be reinstated by the applicant.
[4]
The
applicant being unhappy with the outcome of the arbitration
proceedings, brought the current proceedings in terms of which it
seeks to have the arbitration award set aside on the grounds set out
below.
[5]
The
case of the applicant in contending that the dismissal of the
individual respondents was for a fair reason was based on the
testimony of two witnesses; namely, Mr Wilson, the operations
manager, and Mr Vernon, the production manager.
[6]
The
essence of the testimony of the two managers was that the individual
respondents contravened the strike and picketing rules
which was
agreed upon for July 2011 by the union and the employers’
organisation. They further testified that because of
the manner in
which the individual respondents and others conducted themselves
[N1]
the
applicant had to obtain an urgent interdict in this Court restraining
them from blocking and interfering with the access of
other employees
and customers into its premises.
[7]
Mr
Wilson testified that he observed the individual respondents, through
close circuit television as they were blocking the main
gate of the
applicant. Mr Vernon testified that he saw them intimidating
non-striking employees from entering the applicant’s
premises.
He also testified that he saw the fourth respondent holding a stick
in his hand and in an intimidating manner blocking
employees from
entering the premises. He states that he instructed the individual
respondents to cease their intimidating conduct.
[8]
The
individual respondents in their defence denied having engaged in any
conduct of intimidation. They conceded having had sticks
in their
hands on the day in question but stated that they used them for the
purposes of marshalling employees who were on strike.
The arbitration award
[9]
The
arbitrator, in arriving at the conclusion that the dismissal of the
individual respondents was unfair, essentially, rejected
the version
of the applicant and in particular the testimony of Mr Wilson which
he had found to be contradictory. The arbitrator
further found that
although the applicant had presented photos showing the individual
respondents standing at the gate, there was
no evidence to support
the allegation that they were intimidating other employees from
entering the premises of the applicant.
He does accept that the photo
does show one of the applicants standing at the gate with a stick.
The grounds of review
[10]
In
brief, the contention of the applicant in challenging the arbitration
award is that the Commissioner:
a.
failed
to apply his mind properly to what the photographs depicted in
particular in relation to the intimidation by the individual
respondents.
b.
failed
to take into account the fact that the applicant had obtained an
interdict on an urgent basis in this court on the grounds
of the
intimidation.
c.
take
into account the fact that the evidence of Mr Vernon was corroborated
by Mr Wilson.
d.
to
accord the necessary weight to the evidence of the security officer
whose evidence although was hearsay it was supported by evidence
of
the photographs which were presented during the hearing including the
urgent interdict which was obtained against the union
and the
individual respondents.
e.
in
the circumstances of this case committed gross irregularity and acted
unreasonably in relation to the conclusion as he did.
Evaluation
[11]
The
standard to apply in considering this application is the one which is
set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
,
[1]
which
requires an enquiry into whether or not the decision reached by the
Commissioner is one that a reasonable decision-maker could
not
reach?.
[2]
As
stated recently by Lagrange J in
Nelson
Sekobo v MEC: Department of Basic Education (Gauteng Department),
[3]
the
most important aspect of the test is that it focuses less on the
reasoning of the arbitrator as such and more on whether the
arbitrator’s findings are ones that no reasonable arbitrator
could arrive at on the evidence before the arbitrator. The purpose
of
the reasoning of the Commissioner in a review application is to
assist the Court in determining whether the decision reached
is one
which a reasonable decision maker could have reached.
[4]
In
other words, the reasoning of arbitrator is not determinative of the
reviewability of the arbitration award.
[12]
As
stated earlier, the case of the applicant in contending that the
dismissal of the individual respondents was for a fair reason
was
based on the testimony of two witnesses; namely Mr Wilson the
operations manager and Mr Vernon the production manager. The
essence
of their testimony is that they observed the individual respondents
intimidating those of the employees who did not want
to participate
in the strike action by waving sticks. According to them, the
individual respondents would waive their sticks to
the employees who
were standing on the other side of the road whenever they attempted
to cross the road to enter the applicant’s
premises with the
view to tendering their services. The individual respondents are also
said to have blocked customers from entering
the premises. The case
of the applicant is also that the conduct of the individual
respondents was observed through a close circuit
television.
[13]
It
would seem to me that in order to prove misconduct related to
intimidation, the applicant need to show that the individual
respondents
had induced fear of injury or harm on the non- striking
employees. The fear of injury or harm had to be borne by the
non-striking
employees on the facts as presented by the applicant. In
fact, on their version, the two witnesses were not intimidated
because
they were inside the applicant’s premises.
[14]
It
is common cause that the applicant did not call as witnesses any of
the employees that it alleged had been intimidated. It follows
that
the applicant had failed to prove that the individual respondents
were guilty of intimidation. It was suggested during argument
that
the Court should take judicial notice that strikes in our country are
always accompanied by intimidation. This was, however,
not backed up
by any evidence.
[15]
The
version that the individual respondents were carrying sticks does not
assist the case of the applicant, as concerning the alleged
acts of
intimidation. In this respect, apparently, the applicant relied on
photos taken of the individual respondents carrying
sticks. The only
photo which was handed in Court during the hearing of this matter
shows one of the individual respondents standing
at the gate. There
is no sign of the stick being waived by the person in the photo
instead the photo shows the person with the
stick between his legs.
[16]
It
has to be noted that the individual responds do not dispute the
carrying of the sticks. They, however, contend that they used
the
sticks in marshalling striking workers.
[17]
In
my view, the above analysis clearly demonstrates that I have not been
persuaded that the decision made by the Commissioner does
not meet
the constitutional standard of reasonableness. Put in another way,
regard being had to the evidence which properly served
before the
Commissioner, it cannot be said that the decision reached in the
present matter is one that no reasonable decision maker
could have
reached. In the circumstances, the applicant’s review
application stands to fail.
Order
[18]
In
the premises, the applicant’s application to review the
arbitration award made under case number
MEGA
3847 dated 2 April 2013, is dismissed with no order as to costs.
Molahlehi, J
Judge of the Labour Court, Johannesburg
Appearances
:
For the Applicant: Anthony Hinds of Anthony Hinds Attorneys
For the
Respondent: Union Official
[1]
(2007) 28
ILJ
2405 (CC).
[2]
Ibid
at
para
110.
[3]
(
Case no: JR 409/13
)
[2015] ZALCJHB 51
(
24 February
2015) at para 18.
[4]
See
Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus
Curiae
)
(2013) 34
ILJ
2795 (SCA)
at para 12
.
[N1]
Please
review the meaning here.