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[2015] ZALCJHB 196
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NUMSA obo Mere v Commission for Conciliation Mediation And Arbitration and Others (JR1620/11) [2015] ZALCJHB 196 (9 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
Of
interest to other judges
Case
no: JR 1620/11
In
the matter between:
NUMSA
OBO BOASE MERE
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
First
Respondent
COMMISSIONER MZONDI
JOB MOLAPO (
n.O.
)
Second
Respondent
PRECIOUS
METAL REFINERY (PTY) lTD
Third
Respondent
Heard:
18 June 2015
Delivered:
9 July 2015
Summary:
(Review – failure to order
reinstatement following acquittal on charge of incitement –
arbitrator misconstruing application
of s 193 in determining relief
in the LRA - award of compensation not justifiable- matter remitted
for determination of alternative
relief under s 193(1))
JUDGMENT
LAGRANGE,
J
Background
[1]
In this matter the individual applicant, Mr
P Boase (‘Boase’), was a full-time shop steward of the
applicant union,
NUMSA. He had been employed by the third respondent,
Precious Metal Refinery (Pty) Ltd (‘PMR’) since July 1990
and
was dismissed on the 28 May 2010. He was dismissed for inciting
employees not to work on 1 May 2009. PMR runs continuous operations
and subject to special arrangements being made, 1 May 2009 was a
normal working day for shift workers whose shift fell on a public
holiday. Another shop steward of NUM, with whom he had acted jointly
in the alleged misconduct was dismissed too, but his dismissal
was
upheld by the CCMA in separate proceedings.
[2]
Although it is not necessary for the
purposes of this judgement, to contextualise what transpired, it
should be mentioned that there
had been a practice at the firm in
terms of which employees on duty on that day who wished to
participate in May day celebrations
could enter their names on a list
which would be submitted to the management for approval. If
management did not approve their
absence from work on May Day would
not be excused. In 2009, Boase was not prepared to submit a list for
approval and encouraged
workers not to work on May Day and undertook
to defend them if they were charged as a result of not being at work.
Those shift
workers who did not attend work on May Day were
disciplined for staying away without permission.
Condonation
application
[3]
Out of abundant caution, the applicant brought a condonation
application in the belief that its review application might have
been
considered to have been filed late. The application was not opposed
and on consideration of the evidence I am satisfied on
a balance of
probabilities that the application was indeed filed in time and it
was not necessary to obtain condonation.
The
arbitrator’s award
[4]
The Commissioner adopted the view that in
order to find Boase guilty of incitement, the employer had to prove
that employees had
in fact stayed away because he incited them. Thus,
after noting that the individual employees were held responsible for
being absent
without leave, the arbitrator stated at paragraph 394 of
his award:
“
In
other words if I find the applicant had uttered the words alleged by
some witnesses were in the canteen and the gate [to the
effect that
they should not go to work on May Day] I must then find further
persuasion from the entire evidence
that there was a causal nexus
between the utterance of such alleged words and the absence of the
employees
on Mayday 2009.”
(
sic
-emphasis
added)
[5]
The arbitrator also held that the onus was on the employer to prove
that each employee who was absent had been incited by Boase’s
words. The arbitrator reinforced his interpretation of the nature of
incitement as a form of misconduct by stating:
“
It
is true that a shop steward can be found guilty of inciting employees
not to report for duty on a particular day, but the employer
must
prove on a balance of probabilities that the employees allegedly
incited with vulnerable employees who may not have known
how the
employer would react to such absence. This will normally be the case
where such employees are still new in the workplace.
In this case
some of the respondent’s witnesses were previously disciplined
for the same offence without being incited by
anyone to stay away
from work and they all have confirmed that they were aware of their
contractual obligations towards the respondent
and also about the
awareness campaigns the respondent had embarked on about this issue
of public holidays.”
[6]
Having decided that the act of incitement
is only committed if the incitement achieves its objective, the
arbitrator concluded:
“
In
so far as the events of the applicant having incited employees not to
report for duty, I was not persuaded by the respondent’s
evidence. I find that the employees had a choice to either seek
permission from their supervisors as they correctly stated it was
the
expected condition on their part or to report for duty as others have
done so.”
[7]
He then proceeded to “…
scrutinise
the applicant’s conduct against the very notion of
accountability in the workplace, judged against his position
as a
shop steward
” to determine “…
will
it be fair for the employer
I
were to award the reinstatement of the applicant
”
(emphasis added). In the course of the analysis which follows, the
arbitrator found that Boase’s conduct “
left
much to be desired
” despite PMR
“
dismally failing
”
to prove the misconduct with which he was charged. He considered the
following factors to be material:
7.1
Boase had spoken to workers as alleged on
28 April 2009 and had “invited” them not to work on May
Day.
7.2
Boase had been provided with the facilities
to perform his duties as a full-time shop steward and he had a duty
to tell members
to either report for work or to request permission if
they wanted to attend a May Day meeting. His conduct in the
circumstances
was irresponsible and counter-productive.
7.3
Boase’s conduct did not befit his
position as a full-time shop steward on whom the employer had
generously bestowed resources
for him to perform his duties.
7.4
The fact that Boase was a shop steward did
not render him immune to misconduct committed in the course of acting
as a shop steward.
7.5
In this instance, Boase acted outside of
the scope of his office and rendered himself “incompatible with
the culture and tradition
of the respondent”
[8]
In conclusion, he found Boase’s
continued employment would be “untenable as his conduct and
reinstatement may be seen
by others to be acceptable and victorious
and therefore encourage disharmony and unruly tendencies in the
workplace.”
Consequently, reinstatement would be
“counterproductive to the respondent’s enterprise”.
The arbitrator also
decided that he did not want to award the maximum
compensation because that might be viewed as both ‘punitive’
towards
the employer and as endorsing Boase’s conduct. He
therefore ordered payment of compensation equal to four months’
remuneration.
What is strikingly paradoxical about the award is that
having found Boase not guilty of incitement because of the way he
characterised
the offence, the arbitrator then relied on the very
same conduct Boase committed as the main reason for not reinstating
him.
Review
[9]
The applicant seek to review the relief
awarded by the arbitrator. There was no attempt by PMR to
cross-review the arbitrator’s
finding on the substantive
unfairness of Boase’s dismissal, so in consequence that finding
stands unchallenged and is not
subject to review.
[10]
As mentioned, it is the relief awarded in
the form of an award of compensation which is under attack in this
application. The applicants
argue that the arbitrator ought to have
reinstated Boase having found him not guilty of incitement. Their
grounds of review may
be summarised as:
10.1
the arbitrator committed a gross
irregularity in failing to accord primacy to section 193 of the
Labour Relations Act, 66 of 1995
(‘ the LRA’);
10.2
the arbitrator committed a gross
irregularity in awarding compensation as relief which no reasonable
arbitrator would have done,
having regard to the evidence before him
and his own finding on substantive fairness, and
10.3
in particular, the arbitrator decided on
the relief with reference to factors that had not been placed before
him in evidence and
on issues that have not been matters canvassed by
the parties in the presentation of their respective cases.
Evaluation
[11]
Section 193 of the LRA provides:
“
Remedies
for unfair dismissal and unfair labour practice
(1)
If the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal is unfair, the Court or the arbitrator
may-
(a)
order the employer to reinstate the employee from any date not
earlier than the date of
dismissal;
(b)
order the employer to re-employ the employee, either in the
work in which the
employee was employed before the dismissal or in
other reasonably suitable work on any terms and from any date not
earlier than
the date of dismissal; or
(c)
order the employer to pay compensation to the employee.
(2)
The Labour Court or the arbitrator
must require the employer to
reinstate or re-employ
the employee
unless
-
(a)
the employee does not wish to be reinstated or re-employed;
(b)
the
circumstances surrounding the dismissal
are such that a
continued employment relationship
would be intolerable
;
(c)
it is
not reasonably practicable
for the employer to reinstate
or re-employ the employee; or
(d)
the dismissal is unfair only because the employer did not follow a
fair procedure.”
(emphasis
added)
[12]
In
Dunwell
Property Services CC v Sibande & others
[1]
the Labour Appeal Court reiterated the primacy of reinstatement as a
remedy as confirmed by the Constitutional Court in
Equity
Aviation Services
(
Pty
)
Ltd
v Commission for Conciliation, Mediation and Arbitration &
others
.
[2]
The LAC expressed it thus in relation to the matter before it:
“
Therefore,
it followed that unless either or both conditions referred to in
sections 193(2)(b) or (c) were present, the court below
was obliged
to issue an order reinstating
[the
employee]
to his employment with effect from any date which the court, in its
discretion, would deem just and equitable but not earlier than
the
date of dismissal. Indeed, the constitutional court has reiterated
that the primary statutory remedy in unfair dismissal disputes
is
aimed at placing an employee in the position he or she would have
been but for the unfair dismissal.
[3]
[13]
Consequently, the arbitrator could only
have refused dismissal if he was satisfied that either of the
conditions mentioned were
met. It seems the arbitrator did not
approach the matter along the lines of the exceptions mentioned.
Rather he decided on the
relief by purporting to balance the fairness
to the parties, which was the wrong test.
[14]
Even
if this misdirection by the arbitrator is ignored, and the review is
considered from an outcomes-based perspective
[4]
,
can his decision nonetheless be salvaged as one that an arbitrator
could nonetheless have arrived at without being unreasonable?
This entails considering if the arbitrator’s decision might
nevertheless be reasonably justifiable under sections 193(2)(b)
or
(c).
[15]
Issues
of the impracticability of reinstatement do not present themselves on
the evidence, so the only conceivable exception that
might justify
the arbitrator’s award is that it would have been intolerable
to reinstate Boase in the circumstances surrounding
his dismissal. It
was submitted in the respondent’s argument at the end of the
arbitration proceedings that Boase’s
conduct had created an
irretrievable breakdown in the trust relationship, but nothing to
this effect was led in evidence by the
employer. The respondent
argued on the basis of the judgment in
Mediterranean
Textile Mills (Pty) Ltd V SA Clothing & Textile Workers Union &
Others
[5]
that
the arbitrator was entitled to consider any factor relevant to
determining whether there are grounds for finding that an exceptional
condition exists that justifies denying the employee’s
reinstatement. Despite noting that it was high time that employers
took responsibility for adducing evidence and making submissions to
persuade an arbitrator that reinstatement was not justified,
rather
than trying to deal with it
ex
post facto
,
the LAC still recognised that the arbitrator must consider if one of
the exceptions is applicable on the available evidence. The
court
expressed it thus:
“
At
the conclusion of each case it remains the responsibility of the
court or the arbitrator to determine whether or not, on the
evidentiary material properly presented and in the light of the
Equity Aviation principle, it can be said that the reinstatement
order is justified. In other words, even in a situation such as the
present, where no specific evidence was canvassed or submissions
made
during the trial on the issue of the non-reinstatable conditions, the
court or the arbitrator is not only entitled but, in
my view, is
obliged to take into account any factor which in the opinion of the
court or the arbitrator is relevant in the determination
of whether
or not such conditions exist.”
[6]
[16]
I am satisfied that the arbitrator failed
to follow this principle in arriving at his decision on relief.
[17]
The arbitrator’s conclusion that
Boase acted irresponsibly in encouraging employees to take May Day
off without following
the normal procedure of obtaining permission
for those employees who had signed a list, was not an unreasonable
one on the evidence,
nor was his conclusion that this was at odds
with the existing practice and culture of the employer in dealing
with such events.
His finding that Boase had encouraged employees to
breach the collective agreement in terms of which continuous shift
workers were
required to work on public holidays was also not
untenable.
[18]
However, the arbitrator’s inference
that Boase’s continued employment would be “untenable as
his conduct and reinstatement
may be seen as others to be acceptable
and victorious and therefore encourage disharmony and unruly
tendencies in the workplace”
is harder to sustain as an
inference drawn from the evidence. The employees who were absent from
duty on May Day without permission
were also disciplined Their
misconduct was not ignored and it was dealt with, so there is no
reason to suppose they might
believe that what they had done was
acceptable. Moreover, the arbitrator stressed that they had to take
responsibility for their
own actions for being absent without
permission on the May Day shift. It is also difficult to understand
how the wrong message
would be sent to employees that unruly conduct
was acceptable if Boase was reinstated given that the arbitrator
himself had found
Boase was not guilty of the charge against him. If
the arbitrator felt that despite finding Boase innocent of the charge
he should nonetheless express his disapproval of how Boase conducted
himself that might have warranted something less than full
retrospective reinstatement, but it is hard to reconcile his finding
that the same conduct which he found did not warrant a finding
of
misconduct is nonetheless sufficient to deny him reinstatement
altogether. This is especially so in circumstances where so little
was made of the potential consequences of Boase’s return to
work in the course of the arbitration hearing itself. It seems
that
the arbitrator was somewhat remorseful about his own acquittal of
Boase of any misconduct and sought to compensate for this
when
dealing with the relief.
[19]
Consequently, I do not think this is a case
where the evidence before the arbitrator could reasonably justify him
refusing reinstatement
or re-employment on either of the exceptions
in s 193(2)(b) or (c)
and his finding on
relief must be set aside.
[20]
That still leaves the question of whether
or not the terms of re-employment or reinstatement should have been
unqualified or not.
In that regard, the court has really nothing
before it to consider as the parties failed to make any submissions
in this regard
and the issue was not canvassed before the arbitrator.
Accordingly, the most appropriate measure would be for this to be
determined
by an arbitrator after hearing submissions.
Order
[21]
The second respondent’s award to Mr M Boase for his
unfair dismissal of four month’s compensation in his
arbitration
award dated 4 July 2011 issued under case number NWRB
2257-10 is reviewed and set aside.
[22]
The matter is remitted to the first respondent for a
commissioner other than the second respondent to determine the
appropriate
relief in terms of s
193(1)(a) or (b)
of the LRA on the basis of the record of the original arbitration
placed before the court and after hearing submissions
from the
parties on the issue.
[23]
The first respondent must pay the
applicant’s costs.
_____________________
R
LAGRANGE, J
Labour
Court Judge
Appearances:
For
the Applicant:
R Edmonds of Ruth Edmonds
Attorneys
For
the Third Respondent: I Gwaunza of Edward Nathan
Sonnenbergs Inc.
[1]
[2012]
2 BLLR 131
(LAC)
[2]
2009 (1) SA 390
and
[2008]
12 BLLR 1129
(CC)
at para [36]
[3]
Dunwell
at 139, para [30]
[4]
See
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
(2014)
35
ILJ
943
(LAC)
,
where the court stated at 948, para [14]:
“
The
court in Sidumo was at pains to state that arbitration awards made
under the
Labour Relations Act 4 (LRA
) continue to be
determined in terms of
s 145
of the LRA but that the constitutional
standard of reasonableness is 'suffused' in the application of
s 145
of the LRA. This implies that an application for review sought on
the grounds of misconduct, 5 gross irregularity in the
conduct
of the arbitration proceedings, 6 and/or excess of powers 7
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
.”
(emphasis
added)
[5]
(2012)
33
ILJ
160 (LAC)
[6]
At
171-172, paras [29]-[30]