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[2015] ZALCJHB 194
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Spar Group Ltd v Maloka NO and Others (JR748/13) [2015] ZALCJHB 194 (7 July 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 748/13
In the matter between:
SPAR GROUP
LTD
Applicant
and
HAROLD ALEX MALOKA
N.O.
First Respondent
COMMISSION FOR
CONCILIATION,
Second Respondent
MEDIATION AND ARBITRATION (“CCMA”)
TREASURER MOSES
MAPHANGA Third
Respondent
Heard:
05 November 2014
Delivered:
07 July 2015
JUDGMENT
Nkutha-Nkontwana
AJ
Introduction
[1]
In this application the Applicant (“Spar”)
seeks an order reviewing and setting aside an arbitration award dated
6 February
2013 made by the First Respondent (“
Commissioner”
)
under case number MP5499/12. The Commissioner found that the
dismissal of the Third Respondent (“Maphanga”) was
substantively
unfair. Spar was ordered to reinstate the
Maphanga with a back pay equivalent to five months remuneration in
the amount of
R30 250.00. The effective date for
reinstatement and payment of the compensation amount referred to
above was the 15
th
of February 2013.
[2]
Maphanga, represented by South African
Commercial Catering and Allied Union (“Saccawu”), is
opposing this application.
It is common cause that Maphanga is
a member of Saccawu.
Condonation
[3]
The Spar filed this application three weeks
outside of the prescribed period in terms of section 145(1)(a) read
with section 145(1A)
of the Labour Relation Act 66 of 1995 as amended
(“
LRA
”)
and accordingly seeks condonation. Saccawu is not opposing
Spar’s application in this regard.
[4]
However, I am not satisfied with the
explanation furnished for the delay which I find to be opportunistic.
Given the fact that CCMA
has no power to review its own arbitration
awards, it is indiscreet of Spar to delay launching these proceedings
whilst awaiting
a response to its complaint. In any event, it is
highly unlikely that the Convening Senior Commissioner would not have
responded
to such a serious allegation against the Commissioner if
indeed it came to its attention.
[5]
Notwithstanding
the above, it is my view that Spar has good prospects of success as
would be shown later in this judgement.
[1]
[6]
I am accordingly inclined to grant the
indulgence sought
.
Factual background
[7]
The Maphanga was employed by the Spar with
effect from the 1
st
of March 1999 and held a position of an inventory clerk, earning
R6 050.00 per month. He was dismissed on the 4
th
of June 2012 for refusing to work nightshift. Spar argued that
even though there was no agreement to work nightshift between
itself
and Maphanga, in practice he regularly worked nightshift since 2009.
[8]
Maphanga was strongly warned about
consequences of his refusal to work nightshift. On the 4
th
of June 2012, Maphanga yet again refused to work nightshift. He was
summoned to a disciplinary hearing that took place on the 25
th
of June 2012 on a charge of misconduct. Essentially, on the 3
rd
of July 2012 Maphanga was found guilty of and dismissed for the
following charges:
4.1
Charge 1: Interference in the normal
running of operations.
4.2
Charge 2: Refusal to obey a reasonable
instruction.
4.3
Charge 3: Refusal to work nightshift which
is an operational requirement of the company.
[9]
Maphanga denied ever agreeing to work
nightshift before December 2011. He only agreed to work nightshift in
December 2011 simply
because Spar had arranged transport for the
employees. When Maphanga was asked to work nightshift in January
2012, he blatantly
refused.
Grounds for review
[10]
The Spar premised its application for
review on the following grounds:
6.1 That the Commissioner misconstrued
both law and facts that he was presented with and in so doing he
committed a gross irregularity
or reached a conclusion that no
commissioner could reasonably have reached on evidence before him.
6.2 The First
Respondent failed to take into account relevant evidence as he was
asleep during the testimony of the Spa’s
witnesses.
Legal principles and analysis
[11]
It is
trite that Section 145 of the LRA provides limited grounds for review
and is suffused by constitutional standard of reasonableness.
[2]
In
Herholdt
v Nedbank Ltd
[3]
the SCA
stated that it would be justifiable in terms of the
Sidumo
test
to ‘set aside an award on review if the decision is ‘entirely
disconnected with the evidence’ or is ‘unsupported
by any
evidence’ and involves speculation by the commissioner’.
Alternatively,
“
[21]
…
where
the decision-maker has undertaken the wrong enquiry or undertaken the
enquiry in the wrong manner. That is well illustrated
by the facts of
that case. A magistrate seized with a valuation appeal was required
under the relevant legislation to conduct a
fresh enquiry into the
question of the proper value of the property. Instead he refused to
consider the evidence of value tendered
by the appellant and
approached the matter on the basis that he could only amend the
valuation if it was clearly erroneous. In
the circumstances he did
not enter upon the correct enquiry and his decision was set aside.”
[4]
[12]
In
Goldfield
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA & Others
[5]
the application of the
Sidumo
test
was explained as follows:
“
[18]
In a review conducted under
s145(2)(a)(c)(ii) of the LRA, the review court is not required to
take into account every factor individually, consider how the
arbitrator treated and dealt with each of those factors and then
determine whether a failure by the arbitrator to deal with one or
some of the factors amounts to process-related irregularity
sufficient to set aside the award. This piecemeal approach of dealing
with the arbitrator’s award is improper as the review
court
must necessarily consider the totality of the evidence and then
decide whether the decision made by the arbitrator is one
that a
reasonable decision-maker could make.”
[13]
The Commissioner, confronted with issue of
Maphanga’s refusal to work nightshift, made the following
finding which was ultimately
dispositive of the matter:
“
Charge
[3] Refusal to work night shift which is an operational requirement
of the company. The available evidence indicates that
the applicant
refused to work night shift in January 2012. I find the applicant’s
refusal to work night shift reasonable.
I say this because the
(BCEA)…Provides that an employer who requires an employee to
work nightshift have to make transportation
available between
employee’s place of residence and the workplace at the
commencement and conclusion of the employee’s
shift.
I alight myself with the said law and I find that the applicant did
not breach a rule or standard.”
[14]
Contrary to the finding of the
Commissioner, section 17(2) of the Basic Conditions of Employment Act
75 of 1997 (“BCEA”)
provides:
“
(2)
An employer may only require or permit an employee to perform night
work, if so agreed, and if
–
(a)
the employee is compensated by the payment of an allowance, which may
be a shift allowance,
or by a reduction of working hours; and
(b)
transportation is available between the employee’s place of
residence and the
workplace at the commencement and conclusion of the
employee’s shift.”
[15]
It was argued on behalf of Maphanga that
his refusal to work night shift was consequential to the Spar’s
refusal to provide
him with transport despite his safety concerns.
Spar, on the other hand, argued that the Commissioner misdirected
himself in his
line of reasoning as section 17(2)(b) requires
availability of transport as opposed to the employer providing
transport.
[16]
The
essence of the matter is whether or not there was transport available
between Maphanga’s place of residence and Spar’s
premises. Mahlombe, Spar’s main witness, was adamant that
transport had never been an issue in his department even for
Maphanga.
[6]
He testified that Maphanga had been complaining about the adequacy of
the nightshift allowance up until the final disciplinary
hearing
where transport was raised for the first time.
[7]
For completeness sake, I deem it necessary to excerpt the following
Mahlombe’s evidence in that regard when quizzed
by the
Commissioner:
[8]
“
Commissioner:
When he complained about transport, what was your answer?
Mr
Mahlombe:
My answer on the issue of transport, I said, all
guys, I have
got…never complained about transport, so I do not understand
when you are saying that I must have a transport
to pick you up from
your home to work and from work to home because all those people are
coming to work and then they never had
an issue of transport.
Commissioner:
In your view, was he unreasonable to ask for transport?
Mr
Mahlombe:
It was unreasonable if it was an issue where there
is no transport
available for him from home to work, maybe sometimes he was, he
spoke to me before to say, okay, I am struggling
with transport
and my transport is late most of the time, I would consider that to
say, okay, maybe there is a problem, I will
do further studies
on that, but the fact is that we have got guys staying with him that
side and they are coming on time, and they
are going back home on
time. They do not have any issues that they rose with me to say no,
Mahlombe we have this challenge with
transport.”
[17]
The Mahlombe’s evidence was never
challenged. It is therefore my view, as is apparent from the
following evidence, that indeed
the main reason for Maphanga’s
refusal to work nightshift was not transport but nightshift
allowance:
“
Commissioner:
What was the problem about the 10% rate, what problem
did he have on
that rate?
Mr
Mapanga:
The money which I was
paying in the taxi too, was over than the 10%.
Commissioner:
What was the difference if you compare
what you would get during
dayshift and nightshift?
Mr
Mapanga:
During nightshift the
problem I had is that I do not use a bus, the
bus you have to, the way you use a bus you have to change two times,
but when
you use a taxi you have to change three times which
costs.”
[9]
[18]
It is clear that the Commissioner’s
finding is based on anecdotal evidence with little regard to above
pivotal facts, if at
all. Maphanga was duly warned about the
consequences of his refusal to work nightshift. Interestingly, under
cross examination
Maphanga testified that he would be willing to work
nightshift if were to be reinstated and did not persist with his
transport
issue.
Certainly, in the
premises, Maphanga was guilty of refusal to work nightshift
unreasonably so and despite being warned of
the consequences. As such, dismissal was an appropriate sanction.
[19]
Spar further argued that the Commissioner
failed to traverse the issue of an agreement on nightshift work which
was seriously contested
during the arbitration proceedings. Nothing
turns on this issue, I reckon, as the Commissioner’s approach
suggests that he
had accepted the evidence that there was an
agreement or alternatively an established practice to work
nightshift. Maphanga himself
conceded under cross examination that he
did work nightshift in 2009. It is worth noting also that Saccawu
took no issue with the
Commissioner’s finding in that regard.
[20]
As to
whether the Commissioner’s conduct constitutes a gross
irregularity which entitles this Court to interfere with the
arbitration award, I align myself with the Labour Appeal Court’s
finding as per Ngcobo AJP, as was then, in
County
Fair Foods (Pty) Ltd v CCMA & others
[10]
that:
“
As
a result of the arbitrator’s misconception of the law relating
to the propriety of holding a second disciplinary enquiry,
the
employer in the present matter was denied the opportunity of having
the issue of the fairness of the dismissal considered in
a fair
public hearing and by means of applying the relevant law.”
[21]
On the allegation that the Commissioner
dozed off during the arbitration proceedings, I deem it unnecessary
to deal with this issue
in the light of my findings above. However,
there is nothing that prevents Spar from further pursuing its
compliant that is before
the CCMA.
Conclusion
[22]
I am persuaded that the Commissioner
misconstrued the provisions of section 17(2)(b) of the BCEA and
as a result arrived at an unreasonable conclusion
that a reasonable arbitrator could not reach on all the material that
was before
him. As a result, the arbitration award stands to
be
reviewed and set aside.
Relief
[23]
It would serve no purpose to remit this
dispute to the CCMA. It is apparent from my reasoning above that the
Maphanga was guilty
of a serious misconduct meriting dismissal.
[24]
On the issue of costs,
it
is my considered view that it would not be fair to allow costs to
follow the results.
Order
[25]
In the circumstances, I make the following
order:
1.
The late lodging of the application is
condoned.
2.
The arbitration award of the First
Respondent issued under case number PM5499/12 dated 6 February 2012
is reviewed and set aside.
3.
The arbitration award is replaced with the
following award:
“
The
dismissal of the Third Respondent is substantively fair.”
4.
There is no order as to costs.
__________________
Nkutha-Nkontwana AJ
Judge
of the Labour Court of South Africa
APPEARANCES:
For the Applicant:
Advocate J Eastes
Instructed by
Erasmus-Scheepers
For the Third
Respondent:
Mr H Mathebula
Saccawu union
official
[1]
Queenstown
Fuel Distributors CC v Labuschagne N.O & Others
(2002) 21 ILJ 166 (LAC) at para 24.
[2]
Sidumo &
Another v Rustenburg Platinum Mines Ltd & Others
[2007] 28 ILJ 405 (CC) at para 108
[3]
Herholdt
v Nedbank Ltd
[2013]
34
ILJ 2795
(SCA)
at para 13.
[4]
Ibid at
para 21.
[5]
[2007] ZALC 66
;
[2014] 1
BLLR 20
(LAC) at para 18
[6]
Transcribed
record page 41 (paginated page 43) lines 1 to 5.
[7]
Transcribed
record page 41 (paginated page 43) lines 6 to 25; page 51 lines 8 to
15.
[8]
Transcribed
record page 52 (paginated page 54) lines 12 to 25; page 53 lines 1
to 9.
[9]
Transcribed
record page 101 (paginated page 103) lines 12 to 25.
[10]
[1999]
11 BLLR 1117
(LAC) at para 28.