About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 117
|
|
National Union of Mineworkers and Others v Commission for Conciliation Mediation And Arbitration and Others (JR 2396/10) [2015] ZALCJHB 117 (9 April 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
Judgment
Case no: JR
2396/10
DATE: 09 APRIL
2015
Not reportable
Not of interest
to other Judges
In the matter
between:
NATIONAL UNION OF
MINEWORKERS
.................................................................
First
Applicant
ALFRED
DOLAMO
....................................................................................................
Second
Applicant
JOHANNES
MGABI
.....................................................................................................
Third
Applicant
And
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
..........................................................................
First
Respondent
SOLOMON
MALAZA
N.O
.....................................................................................
Second
Respondent
SHANDUKA COAL
(PTY) LTD
[GRASPAN
COLLIERY]
...........................................................................................
Third
Respondent
Date
of ruling: 09 April 2015
RULING:
APPLICATION FOR LEAVE TO APPEAL
VENTER, AJ
Introduction
[1]
Prior to considering the submissions made
by the parties, the procedural background that gives rise to this
ruling in the application
for leave to appeal requires some mention.
[2]
This matter was heard on 8 July 2014
where-after this Court delivered judgment on 21 November 2014. The
representatives for the
National Union of Mineworkers (“First
Applicant”), Alfred Dolamo (“Second Applicant”) and
Johannes Mgabi
(“Third Applicant”) [“
the
Applicants”), were dissatisfied
with the judgment of the Court and made application for leave to
appeal. Same was filed with
this Honourable Court on 1 October 2014.
[3]
I thereafter considered the application for
leave to appeal, absent any written submissions made by the
Applicants in particular.
I communicated the ruling to the Honourable
Court. On 21 November 2014, I was advised that the Applicants’
representative
was appointed to the bench as an Acting Judge during
the time I considered the application for leave to appeal. For those
reasons
the legal representative was unable to file submissions
amplifying the leave to appeal and I was not alerted to that fact.
[4]
In correspondence between my associate and
the legal representative for the Third Respondent, it was agreed that
as soon as the
acting appointment of the Applicants’
representative comes to an end that the submissions will then be
made. In this regard
the parties agreed that the judgment in the
leave to appeal would stand over until the aforesaid has taken place.
I thus exercised
my discretion not to confirm and proceed with the
issuing of the aforesaid ruling. That ruling is then regarded as null
and void.
I subsequently received the Applicants’ written
submissions dated 23 January 2015 and the Third Respondent’s
written
submissions dated 30 January 2015. I am indebted to the
parties for presenting the written submissions. I had the opportunity
to
consider those submissions and approached the application for
leave to appeal as follows:
[4.1]
I do not intend to restate or traverse what
has been set out in both parties’ written submissions and do
not need to repeat
them herein.
[4.2]
I shall, to the extent necessary, refer to
the applicable principles when application for leave to appeal is
considered.
[4.3]
I shall consider the grounds raised and
whether or not the application succeeds.
Summary
of views set out as follows
:
(i) application for
leave to appeal
[5]
The Applicants contend that this Court
misdirected itself as set out in paragraph 31 of the preceding
judgment read with what is
set out in paragraph 36 of the judgment.
It is alleged that the Court misconstrued the parity principle
crystalised in
SACCAWU and Others v
Irwin and Johnson
Ltd (1999) 20 ILJ
2302 (LAC) at paragraph [29].
[6]
It is further alleged that the Court
misdirected itself and erred by not interrogating whether the
circumstances and facts of the
case support the value judgment made
by the Commissioner on the behaviour of shop stewards in their
representative capacities according
to the principles articulated in
the case law correctly analysed by the Court.
[7]
It is further alleged that the Court
misdirected itself and erred by failing to appreciate the
distinctiveness of the charges. It
is submitted that the record
reflects that there was an overlap in the charges to a certain
degree. It is further alleged that
this Court erred by failing to
find that the Commissioner failed to exercise his discretion
judicially when dealing with the issue
of compensation. It is common
cause that the Commissioner found that only the procedure followed in
dismissing the Second and Third
Applicants were defective. He then
awarded an amount of compensation only.
[8]
Lastly, it is alleged that this Court erred
by not finding that the Commissioner’s failure to consider the
principal issue
before him and to evaluate the facts presented at the
hearing could have allowed the Commissioner to arrive at a reasonable
conclusion.
As such, the decision arrived at amounts to a reviewable
irregularity. These are merely a summary of the conspectus of the
grounds
for appeal.
(ii) submissions in
support of the application for leave to appeal
[9]
As already indicated, the application for
leave to appeal seeks to assail the whole of the judgment and order
previously made. The
written submissions set out the following:
‘
4.
In these submissions, I accordingly deal with the following foci upon
which the whole application is pegged.
4.1 Our courts’
approach to the application for leave to appeal;
4.2 The parity
principle as crystalised in
SACCAWU and Others v Irvine and
Johnson;
4.3 The role and
behaviour of shop stewards in their representative capacity; and
4.4 The discretion
when awarding compensation’.
[10]
In considering the submission regarding the
approach that a court should adopt in considering an application for
leave to appeal,
I was referred to various cases dealing therewith.
Section 17
of the
Superior Courts Act 10 of 2013
provides that an
appeal will be granted if, amongst others, there are reasonable
prospects of success or where there are some other
compelling reasons
that the appeal should be heard. In a similar vein the submissions
then refer to the test of reasonable prospects
of success, if there
is a reasonable prospect that the Court of Appeal may take a
different view and hold the trial judge to be
wrong. The argument
develops that there was some misdirection on facts and that the
Court’s conclusions are vitiated by a
material misdirection
which in light of the record constitute reasonable prospects that
another court may come to a different conclusion.
[11]
The argument further develops by setting
out the reasoning pertaining to the well-known parity principle,
alternatively also known
as the principle of inconsistency. This
Court was pertinently referred to the construction of the charges. It
is alleged that the
allegations contained in the charge sheet were
couched in a broad catch all nature which lured the Commissioner to
treat all charges
as one. The submissions also make reference to how
the Courts have considered the role and behaviour of shop stewards
and how an
employee in the capacity of a shop steward should act.
There are balancing views emanating from our jurisprudence. This
Court endorsed
the principle that misconduct can never be justified
by an employee where he or she performs duties as a trade union
representative,
whilst still in the employ of his or her employer.
[12]
It is further contended that the employer
herein should have instituted a more lenient approach towards
disciplining the Second
and Third Applicants. In returning to the
construction of the charges, it is submitted that the Second
Respondent (“the Commissioner”):
‘…
clumped
all the charges together and treated them as one. As a result, the
Commissioner muddled all evidence before him’.
[13]
In further advancing their submissions, the
Applicants refer this Honourable Court to the settled case law on how
a commissioner
should deal with the question of credibility and
lastly the Applicants persist with their view relating to the manner
in which
the Commissioner did not fully or at all, explain how he
arrived at compensation. In concluding the written submissions, it is
submitted on the Applicants’ behalf that given the contentions
raised in the written submissions, the likelihood exists that
another
court considering the same facts, may reasonably reach a different
conclusion.
(III)
submissions opposing the application for
leave to appeal – third respondent’s written submissions
[14]
In fairly concise answering submissions,
the Third Respondent opposes the application for leave to appeal. In
directing this Court
to the manner in which the application for leave
to appeal will be opposed, this Court is directed to the relevant
legal principles
applicable (which I do not intend to repeat) and
this Court is directed to the manner in which the Labour Appeal Court
has of late
considered the application of the parity principle.
[15]
In further advancing their opposing
propositions, the Third Respondent direct this Court to various
considerations in our jurisprudence
which has a direct bearing in
considering whether an application for leave to appeal should be
granted. In further developing the
argument opposing the application
for leave to appeal, the Third Respondent also concerns itself with
the charges put up against
the Second and Third Applicants, a
question which I will deal with below.
[16]
Lastly the Third Respondent concludes the
written submissions by referring to aspects of the reasoning set out
in the judgment,
now sought to be assailed by this application for
leave to appeal.
the construction
of charges
[17]
It is necessary to take a step back and
view the entire incident that played out at the workplace, the
Commission for Conciliation,
Mediation and Arbitration (“CCMA”)
and this Court. In doing so, there are two aspects to consider,
namely:
(i)
the strike and various allegations of
misconduct that prevailed during the strike; and
(ii)
more importantly – the construction
of the charge sheet.
[18]
I say so for the following reasons namely;
it is ultimately what was set out in the charge sheet which formed
the basis of this
disciplinary hearing. In this case it led to the
dismissal of the Second and Third Applicants. The question regarding
the construction
of a charge sheet has to a large degree been dealt
with by various labour law fora. It is necessary to consider the
manner in which
the construction of a charge sheet should be seen,
within the context of employment law.
[19]
What flows from a charge sheet as in this
case, results in what will be considered by a Commissioner. The
Applicants take umbrage
with the manner in which the Commissioner
dealt with what was contained in the charge sheet. At the outset I
state that I hold
a different view. It is necessary to indicate to
the parties the reason for saying so. It is necessary to consider a
brief development,
albeit in sparse terms of the context in which
disciplinary charges have to be seen, have to be dealt with and how
they should
be interpreted within the context of employment law.
[20]
In
the matter of
Williams
v Gilbey’s Distillers and Vintners (Pty) Ltd
[1]
the
Court - constituted as it was at that stage -, held the view that it
is really immaterial what label is given to an allegation
of
misconduct. The important issue is that the facts that give rise to
the allegation of misconduct must be fully canvassed during
the
disciplinary hearing.
[21]
In
the same vein, the then Industrial Court in the matter of
Dywili
v Brick and Clay
[2]
held
the view that:
‘…
This
Court cannot, however, expect an employer to describe offences
committed by an employee with such precision that they would
stand
uncriticised in a criminal court. The test here is again the test of
fairness and the main consideration was whether the
employee knew
what accusations he was called upon to face. The name given to those
transgressions is of minor importance. I am
satisfied that the
employee was aware of the nature of the charge’.
[22]
With
the coming of age of the Labour Relations Act
[3]
this
line of thinking permeated the current constitutional dispensation.
The views expressed by the various employment fora and
more
specifically this Court relating to the construction of a charge
sheet, has at all stages been the same. This Court in the
matter of
Zeelie
v Price Forbes (Northern Province)
[4]
held
as follows:
‘
[36]
The Code of Good Practice in dismissal cases contained in Item 4(1)
of Schedule 8 to the Act, stipulates that ‘the employer
should
notify the employee of allegations by using a form and the language
the employee can reasonably understand.’…
[37] In dealing with
the point in limine, one should not loose sight of the purpose of the
charge-sheet, namely to ensure that the
dismissed employee is made
aware of the allegations he is to face in the disciplinary hearing.
Disciplinary charges are not intended
to be a precise statement of
the elements of an offence. The charges need only be sufficiently
precise to allow the charged employee
to identify the incident which
forms the subject-matter of the complaint in order for him or her to
prepare a suitable defence.
(See
Korsten v Mac Steel (Pty) Ltd and
Another
[1996] 8 BLLR 1015
(IC) at 1020; and
Dywili v Brick
and Clay
[1995] 7 BLLR 42
(IC) at 47 B – C). Such right to
prepare for the employee should not be rendered illusory by an
inadequate charge-sheet.
(See
Police and Prisons Civil Rights
Union v Minister of Correctional Services and Others
(1999) 20
ILJ 2416 (LC) at 2426 C – F).
[38] This would be a
highly technical approach to labour relations if such an objection
were to be upheld by this court. The very
purpose of the Act would be
defeated….’
[23]
It seems to me that the construction of the
charge sheet is not the principle issue in employment law. The
principle issue in employment
law is that the context of the charges,
alternatively the facts upon which an employer premises the
allegation of misconduct, as
in this case, must allow that the
parties fully canvass those facts during the disciplinary enquiry.
Having considered the bundle
of documents that served before the
Commissioner, this is what took place. However, it goes further one
must now consider what
a commissioner must do when he or she has to
deal with arbitration proceedings arising from a referral in terms of
the LRA. It
is significant that the draughters of the LRA prescribed
the informal manner in which a commissioner must dispose of the
issues
presented to him during arbitration.
[24]
Section 138(1) of the LRA could not be more
clear to wit:
‘
(1)
The commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the
dispute
fairly and quickly, but must deal with the substantial merits of the
dispute with a minimum of legal formalities’.
[25]
Insofar as this section applies to the
manner in which the Commissioner dealt with these merits, it is
apposite to consider the
statutory departure namely, that the
Commissioner must determine the dispute fairly and must deal with the
substantial merits of
the dispute.
[26]
The
provision of Section 138(1) has now become solidified in the
Constitutional Court judgment of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others.
[5]
[27]
In
considering the current case facts and more specifically the
reconstructed record that was presented when the review application
was argued, a proper comparison of the versions presented to the
Commissioner was set out in the judgment now sought to be set
aside
by the application for leave to appeal.
[6]
These
facts emanated from the record and I do not intend repeating them
herein.
[28]
Given the facts as argued during the
hearing of the review, and given the subsequent consideration of
these facts, it is pertinent
to comment that:
(a)
the facts remain the same and did not
change.
(b)
the facts considered in the judgment are
the same facts that will prevail should this matter be argued on
appeal.
The vexed
question of consistency
[29]
I am indebted to both legal representatives
who in a refreshing manner referred this Court to the well
established jurisprudence
on consistency. They have alerted the Court
to the development of the parity principle in that respect. Having
considered the authorities
referred to, I hold the view that nothing
much has changed. In the Court’s view the parity principle,
without extrapolating
in great detail as to what definition should be
attached thereto, simply means that, in giving effect to the
principle of parity
as properly set out in
SACCAWU
and Others v Irvine and Johnson Ltd supra
,
the point of departure is that discipline must not be capricious.
This means that an employer may not demonstrate, what finds
application in this matter, a sudden change in its attitude or
behaviour towards employees. In addition thereto, discipline must
not
be spiteful. There is no version that discipline was effected in such
a manner towards the Second and Third Applicants. I say
so by
considering the facts I have already mentioned.
[30]
This Court further holds the view that the
all or nothing principle simply cannot be woven into the blanket of
consistency. By that
I mean that it can never be the intention of
this Court to bring forth a considered view that indicates that
either all employees
who participate in a strike should be dismissed,
under the banner of the common purpose doctrine or all employees
irrespectively
should be granted leniency of sorts and escape any
form of prosecution. The facts argued before the Commissioner clearly
indicated
that the Third Respondent differentiated between the
conduct of the Second and Third Applicants as opposed to the other
strikers.
On the facts argued before the Commissioner, same indicated
that the Second and Third Applicants were in a position to exert
influence
over the striking employees.
[31]
It was previously indicated that the case
presented before the Commissioner did not deal with a situation where
the entire shop
steward’s body acted in exactly the same
manner, but that the Second and Third Applicants were irrespective
that perception
of conduct ] isolated from the rest of the group and
dismissed. There was no version that they were dismissed whereas the
rest
of the shop steward’s body were handed a warning. Those
facts were not presented before the Commissioner either.
[32]
Given what I have ready set out above, the
application of the principles set out in
SACCAWU
and Others v Irvine and Johnson Ltd supra
find application in that it cannot be fair that other employees
profit from a wrong decision. There was simply no evidence before
the
Commissioner that the Second and Third Applicants were made subject
to any form of discriminatory policy concerning their dismissals.
I
also hold the view that no evidence was adduced to indicate that the
Third Respondent took a concerted and underhanded decision
to isolate
the Second and Third Respondents as a result of the positions they
occupied and then enforce a dismissal on them. In
a nutshell, there
was certainly merit and truth to the allegations contained in the
charge sheet. The Second and Third Applicants
were given ample
opportunity both at the disciplinary hearing and at the arbitration
to ventilate their concerns.
[33]
It is trite that fairness encompasses a
value judgment and this Court held the view that the Commissioner was
intricately wound
and steeped in the atmosphere of the arbitration.
He was able to observe the demeanour of the parties, their
performance in the
witness box and was aptly positioned to consider
the divergent versions before him. This Court cannot second guess
that function
at the time, given the fact that this Court does not
sit as an armchair critic or re-evaluate the merits afresh. It is
thus extremely
difficult for the Court to enter the credibility fray
given the record that is available and criticise the Commissioner for
the
value judgment he made, alternatively how he called the fairness
and the law as he saw it at the time.
The balance of
the merits
[34]
Reverting
to the test set up by the Applicants in their application for leave
to appeal and in amplifying the approach to be adopted
by this Court,
it is apposite to consider the manner in which the Labour Appeal
Court has more recently alerted the Labour Court
on how it should
consider applications for leave to appeal.
[7]
In
summary, the Labour Appeal Court indicated that a number of factors
should be considered which include whether there is a novel
point of
law or whether there has been a misinterpretation of existing law. In
addition thereto, when a court considers an application
for leave to
appeal, it has to necessarily consider whether or not there was an
incorrect application to the facts and in particular
the assessment
of the factual justification for the dismissals or alternative
sanctions.
[35]
The Labour Appeal Court further guides this
Court in that if there is a reasonable prospect that the factual
matrix could receive
a different treatment or there is a legitimate
dispute on the law that is obviously a different question.
[36]
With the aforesaid in mind, I shall
conclude the evaluation of this application.
Conclusion
[37]
In considering the application for leave to
appeal and the subsequent written submissions, it is obvious that no
novel question
of law is raised. Insofar as contending that the
parity principle was misconstrued in this instance, two aspects are
commented
on, to wit:
(i)
the parity principle has neither changed
regarding the law therein nor the application from the time of the
Labour Appeal Court
pronouncing on that principle in
SACCAWU
and Others v Irvine and Johnson Ltd;
(ii)
the facts applicable herein, alternatively
the facts which the Applicants contend were improperly considered by
the Commissioner
which led to a disproportionate or incorrect
application of the parity principle have been commented on herein and
those facts
emanate directly from the bundle of documents.
[38]
It is further trite law that when a
commissioner writes an arbitration award, he or she does not have to
prepare the award with
the eloquence of a judgment emanating from
this Court or any other High Court for that matter. One has to
consider the manner in
which a commissioner reaches his conclusion
against the backdrop of all the facts and evidence presented to the
Commissioner. I
say so for one reason, namely that the version which
was presented at the time of the disciplinary hearing is largely the
same
version presented at the time of the arbitration, the documents
and facts were the same. The manner in which the charge sheet was
framed ultimately caused all the facts relating to the dismissal of
the Second and Third Applicants to be presented to the Commissioner.
The Commissioner considered these facts. Despite his
consideration of the facts and the version set up by the Second and
Third Applicants relating to the remainder of the shop stewards’
body, the Commissioner in this instance nevertheless applied
his
mind, in a fair manner in my view, and upheld the dismissal of the
Second and Third Applicants.
[39]
I hold the view that the value judgment
made by the Commissioner flows from what was presented to him and is
premised on the discretion
he enjoys in disposing those facts. He as
a commissioner has latitude and flexibility to make a value judgment.
Having considered
all those factors, inclusive of the contention that
the six months’ compensation awarded to the Second and Third
Applicants
was not properly explained, I hold the view that the
application for leave has not advanced such a novel proposition or
demonstrated
such departure from the facts at hand that the
application should be granted.
[40]
There is no version presented by either the
Applicants or the Third Respondent in their submissions that the
bargaining and/or collective
relationship between the First Applicant
and the Third Respondent has changed. This Court readily assumes that
such relationship
is still in place which is a consideration that
this Court takes in determining the question of costs.
[41]
With the aforesaid in mind, I make the
following order:
1. The application
for leave to appeal is dismissed.
2.
There is no order as to costs
Venter AJ
Acting
Judge of the Labour Court of South Africa
[1]
(1993)
2 LCD 327 (IC)
[2]
[1995]
7 BLLR 42
(IC) at 47 B-C.
[3]
Act
66 of 1995 (as amended)
[4]
(2001)
22
ILJ
2053 (LC) (1).
[5]
2008
(2) SA 24
(CC); (2007) 28 ILJ 2405 (CC);
[2007] 12 BLLR 1097
(CC)
[6]
Judgment,
p 12, paragraph 31, p 13, paragraphs 32, 33 and 34, p 14, paragraphs
35 and 36
[7]
Martin
and East (Pty) Ltd v National Union of Mineworkers and Others
(2014)
35
ILJ
2399 (LAC)