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[2015] ZALCJHB 262
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Glencore Operations South Africa Pty Ltd (Magareng Mine) v AMCU obo Makofane and Others (JR2578/13) [2015] ZALCJHB 262 (17 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
case
no: jr 2578 / 13
In the matter between:
GLENCORE OPERATIONS SOUTH AFRICA
(PTY) LTD (MAGARENG MINE)
Applicant
and
AMCU obo TSHEPO JIM MAKOFANE
First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Second Respondent
WILFRED NOKO NKGOENG
N.O.
Third Respondent
Decided :
In Chambers
Judgment: 17 August
2015
Summary:
Application for leave to appeal – Test to be applied –
reasonable prospect of different conclusion.
Leave to appeal – no proper
grounds made out – application for leave to appeal dismissed.
JUDGMENT-APPLICATION
FOR LEAVE TO APPEAL
SNYMAN,
AJ
Introduction
[1]
This
matter concerned an application by the applicant to review and set
aside an arbitration award by the third respondent, a CCMA
commissioner, to the effect that the dismissal of the individual
first respondent by the applicant was unfair. The application
was brought in terms of section 145 of the LRA, and was opposed by
the first respondent.
[2]
The
application was argued before me on 30 June 2015 by both the
applicant and first respondent and in an
ex
tempore
judgment handed down following argument by the parties, on 30 June
2015, I granted the applicant’s review application, reviewed
and set aside the arbitration award by the third respondent, and
substituted such award with a determination that the dismissal
of the
individual first respondent was fair.
[3]
The
first respondent filed an application for leave to appeal against
this judgment on 8 July 2015. The first respondent did
not
attend to have the ex tempore judgment transcribed, as it should have
done, but in the interest of expedition, I will not let
this stand in
the way of determining this leave to appeal application now.
[4]
Both
the applicant and the first respondent filed written submissions in
the leave to appeal application, in terms of Clause 15.2
of the
Practice Manual. Clause 15.2 of the Practice Manual provides that an
application for leave to appeal will be determined
by a Judge in
chambers, unless the Judge directs otherwise. I see no reason to
direct otherwise and will therefore determine the
first respondent’s
leave to appeal application in chambers, based on the written
submissions filed by both parties.
Test
for leave to appeal
[5]
In
deciding whether to grant leave to appeal to the Labour Appeal Court,
the Labour Court must determine whether there is a reasonable
prospect that another Court might come to a different conclusion to
that of the Court
a
quo
.
[1]
In
Karbochem
Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others
[2]
The Court held:
‘
I
have understood that the test in deciding whether to grant leave to
appeal is the traditional test. It requires a judge to ask
whether
there is a reasonable prospect that another court may come to a
different conclusion. See
North
East Cape Forests v SAAPAWU and others
(1997)
18
ILJ
729 (LC)
;
[1997]
6 BLLR 705
(LC) at 710A-B;
NEWU
v LMK Manufacturing (Pty) Ltd and Others
[1997]
7 BLLR 901
(LC) and Landman and Van Niekerk
Practice
in the Labour Courts
(Service 1) at A-41.’
[6]
The
applicant for leave to appeal, currently being the first respondent
in the review application referred to above, thus has to
show in this
instance that there is a reasonable prospect of another Court coming
to a different conclusion. The individual grounds
upon which the
first respondent’s application for leave to appeal is based,
will be addressed in this judgment hereunder.
The
merits of the application for leave to appeal
[7]
In
short, the first respondent has raised two grounds in its application
for leave to appeal, upon which such application is founded.
The first ground is that I applied a test more akin an appeal when
deciding this matter, instead of applying the applicable and
proper
review test. The second ground is that I committed a material
misdirection in assuming that the chairperson of the
disciplinary
enquiry must have had regard to the issue as to whether there was a
break down in the trust relationship. These grounds
were then
elaborated on in the first respondent’s written submissions. I
will address both these grounds, individually,
hereunder.
[8]
I
have little hesitation in concluding that there is no substance in
the contention by the first respondent that I failed to apply
the
proper review test, and in essence considered the matter as an
appeal. In my judgment, and after setting out the backgrounds
facts,
I specifically dealt with applicable review test. In
particular, I dealt with the recent judgment of the LAC in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[3]
and how the Court
applied the review test as first enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[4]
.
I also dealt with the application of the review test in another very
recent judgment of the LAC in
Head
of the Department of Education v Mofokeng and Others
[5]
.
In the end, I decided the review application on the basis of the
application of the review test, as specifically applied
in all these
judgments. Considering the wealth of available authority on the
application of the review test, which is all
in line with the manner
in which I decided this review application, I see no reasonable
prospect of another Court coming to a different
conclusion in this
respect.
[9]
In
this instance, it was ultimately undisputed that the individual first
respondent was guilty of the misconduct of insubordination,
with
which he had been charged and for which he was ultimately dismissed.
That was however not the initial approach of the
individual first
respondent in the arbitration, and he persisted with a variety of
different defences, seeking to contradict the
proposition that he
indeed committed misconduct. I dealt with all of these defences
in my judgment. The third respondent,
as commissioner, however
accepted that the individual first respondent was indeed guilty of
the misconduct. There was no
cross-review. So, and in the
end, this entire matter turned only on the issue of a fair and
appropriate sanction.
[10]
This
then brings me the first respondent’s second ground of leave to
appeal. The first respondent contends that I superimposed
my
view on what I considered to be an appropriate sanction arising from
the misconduct of the individual first respondent, on the
award of
the third respondent that the sanction of dismissal was inappropriate
and unfair, instead of deciding whether the third
respondent arrived
at a reasonable decision. It is in this context that the
first respondent contends that I erred
on the issue of the trust
relationship. I am unfortunately compelled to disagree with
what the first respondent is saying.
I am convinced that the
first respondent’s leave to appeal ground in this respect is
based on the fact that it entirely misconstrues
the proper review
test, and what must be considered when deciding on the issue of a
fair sanction.
[11]
What
the third respondent did in his award was to find that dismissal was
not appropriate based on one ground and consideration
only.
This ground is that although the individual first respondent
initially refused to obey the instruction, he later changed
his mind
and made an attempt to comply. And that is all the third
respondent considered. The simple point is that this
falls far
short of what the third respondent is supposed to do when deciding on
an appropriate sanction. It is a failure
on the part of the
third respondent to properly discharge his duties, and simply not a
proper and reasonable determination of the
issue of a fair
sanction. What the third respondent needed to consider
was a totality of circumstances, which includes
the
consideration of the issue of the breakdown or not of the trust
relationship, the existence or not of dishonesty, the possibility
of
progressive discipline, the existence or not of remorse, the job
function and nature of the job, the employer’s disciplinary
code and procedure, the nature of the misconduct and any explanation
(justification) for the same, the employee’s personal
circumstances and service record, the consequences of the misconduct
(whether any damages were suffered), and finally the reason
why the
employee was in fact dismissed. Because the third respondent
did not consider this totality of circumstances, so
to speak, his
determination of what would be an appropriate sanction was a gross
irregularity. There surely can be no doubt
about that.
[12]
But
further still, it was clear from the award that the third
respondent’s decision on sanction was his own preference and
personal view to what he believed to be fair. That is similarly
an irregular approach. As was said by Ngcobo J in
Sidumo
:
[6]
‘…
the
commissioner… does not start with a blank page and determine
afresh what the appropriate sanction is. The commissioner's
starting-point is the employer's decision to dismiss. The
commissioner's task is not to ask what the appropriate sanction is
but
whether the employer's decision to dismiss is fair
’
.
Ngcobo
J went further and said:
[7]
‘
But
it could not have been the intention of the law-maker to leave the
determination of fairness to the unconstrained value judgment
of the
commissioner. Were that to have been the case the outcome of a
dispute could be determined by the background and perspective
of the
commissioner. The result may well be that a commissioner with an
employer background could give a decision that is biased
in favour of
the employer, while a commissioner with a worker background would
give a decision that is biased in favour of a worker.
Yet fairness
requires that regard must be had to the interests both of the workers
and those of the employer. And this is crucial
in achieving a
balanced and equitable assessment of the fairness of the sanction.
’
[13]
In
short, the manner in which the third respondent decided that the
dismissal of the individual first respondent was not appropriate
constituted a gross irregularity. Because the award of the
third respondent on the issue of sanction is thus a gross
irregularity,
the second stage of the review test then becomes
applicable, being whether, in the absence of this irregularity, the
ultimate outcome
of an inappropriate sanction of dismissal
in
casu
would nonetheless be a reasonable outcome, even on other grounds.
This exercise necessitated that I had to consider the totality
of
circumstances referred to, for myself, in order to ascertain whether
an outcome of dismissal not being appropriate was a reasonable
outcome. I simply followed the following approach as set
out in
National
Commissioner of the SA Police Service v Myers and Others
[8]
,
where the Court said:
‘
The
important considerations that a review court must take into account
when deciding whether or not the sanction imposed by the
arbitrator
is reviewable is to test whether (i) the sanction is that of the
arbitrator (the sanction must be one that the arbitrator
him/herself
has decided or upheld as being appropriate); and whether (ii) on the
evidence presented at the arbitration and on the
facts and
circumstances properly made available to the arbitrator, the sanction
is one that could reasonably be imposed or upheld.’
[14]
This
brings me back to the first respondent’s ground of leave to
appeal. Even if there is an issue about the trust relationship,
what about all the other factors? I considered the nature of
the misconduct, which was serious, committed in the presence
of other
employees and persistent with up to a point where everyone had
already left to their workstations. I considered the judgment
in
Motor
Industry Staff Association and Another v Silverton Spraypainters and
Panelbeaters (Pty) Ltd and Others
[9]
where
related misconduct was held to be dismissable. I also
considered the individual first respondent’s actual
lack of
remorse and the fact that he offered a variety of false defences in
the arbitration. I also considered that the individual
first
respondent had no proper explanation for what he did and could not
justify his behaviour. When the individual first
respondent
changed his mind, it was much too late, and long after the fact.
The individual first respondent also never took
any remedial action
from his part and came to his superiors to apologise for what he did
and ask for forgiveness. I also
considered the disciplinary
code, which prescribed dismissal as a sanction. Based on
all these considerations, it was
my view that any outcome of
dismissal not being an appropriate sanction could not have been a
reasonable outcome. The first
respondent has made out no case
in its application for leave to appeal that any of these
considerations and my conclusion on this
basis were wrong.
[15]
The
first respondent in its application for leave to appeal only focussed
on the issue of the trust relationship. Even assuming
there was
no proper evidence on record in this regard, it simply in itself
could not hold sway in the light of the depth of the
other
considerations I have dealt with in my judgment. Considering
the totality of circumstances, and applying the proper
consideration
of whether what the employer did was fair, I was satisfied that any
determination that dismissal was inappropriate
was not a reasonable
outcome. I remain entirely unconvinced that there is a
reasonable prospect that another Court could
come to a different
conclusion in this regard, even in the absence of specific evidence
about the trust relationship.
[16]
In
the circumstances, it is my view that there does not exist a
reasonable prospect of another Court coming to a different
conclusion.
The application for leave to appeal thus must fail.
[17]
As to
costs, I shall follow the same approach as I did in my original
judgment, and make no order as to costs.
Order
[18]
In
the premises, I make the following order:
18.1 The
first respondent’s application for leave to appeal is
dismissed.
_____________________
S
Snyman
Acting
Judge of the Labour Court
Appearances:
For
the Applicant:
Edward Nathan Sonnenbergs Inc Attorneys
For
the First Respondent:
Larry Dave Inc Attorneys
[1]
See
National Education Health and
Allied Workers Union v University of Cape Town and Others
(2003) 24 ILJ 95 (CC)
;
Ngcobo v Tente Casters (Pty) Ltd
(2002)
23 ILJ 1442 (LC) ;
Volkswagen
SA (Pty) Ltd v Brand NO and Others
(2001) 22 ILJ 993 (LC) ;
Singh
and Others v Mondi Paper
(2000) 21 ILJ 966 (LC) ;
Glaxo
Welcome SA (Pty) Ltd v Mashaba and Others
(2000) 21 ILJ 1114 (LC)).
[2]
(1999)
20 ILJ 2889 (LC)
at
2890D.
[3]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC)
.
[4]
(2007)
28 ILJ 2405 (CC).
[5]
[2015] 1 BLLR 50 (LAC).
[6]
(
supra
)
at para 178.
[7]
Ibid at para 180.
[8]
(2012)
33 ILJ 1417 (LAC) at para 99.
[9]
(2013) 34 ILJ 1440 (LAC) at para 47.