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[2015] ZALCJHB 320
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Sibeko v Motor Industry Bargaining Council and Others (JR1518/12) [2015] ZALCJHB 320 (16 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case no: JR 1518/12
ANNAH
SIBONGILE
SIBEKO
First Applicant
and
MOTOR
INDUSTRY BARGAINING
COUNCIL
First Respondent
ET
VAN KERKEN
NO
Second Respondent
LEAR
SEWING (PROPRIETARY)
LIMITED
Third Respondent
Delivered:
16 September 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This is an opposed application brought in terms of the provisions of
section 145 of the Labour Relations Act
[1]
(the LRA), to review and set aside an award issued by the Second
Respondent (Arbitrator) under case number MIPT12304 dated 12 March
2012.
[2]
In the award, the Arbitrator found that the dismissal of the
Applicant by the Third Respondent was substantively fair. Aligned
to
the review application is a further application for condonation in
respect of its late filing. This application was initially
opposed
until at the hearing of the matter when it was indicated that this
was no longer the case.
The
application for condonation:
[3]
The Applicant averred that she received a copy of the award on 14
March 2012. A review application in terms of section 145 (1)
of the
LRA should have been filed on no later than 25 April 2012. The
Applicant however first served and filed an application for
condonation on 25 June 2012 without the review application.
[4]
The Third Respondent raised a point
in limine
in regards to
the irregular step taken by the Applicant in its answering affidavit
that was filed and served on 10 July 2012. In
her replying affidavit
filed on 2 August 2012 persisted with the contention that the point
in limine
raised had no basis as she had filed a review
application. I am in agreement with the Third Respondent’s
submissions that
this was an irregular step in that a condonation
application can only be filed simultaneously with the review
application, and
not before the filing of the review application. It
follows that ordinarily, the Court would not consider whether to
grant an indulgence
in respect of an application that is not before
it.
[5]
The application for review was filed on 2 August 2012, which makes it
some ten weeks late. The court’s discretion when
considering
applications for condonation derive from the provisions of section
191 (11) (b) of the LRA and also Rule 12 of the
Rules of the Conduct
of Proceedings. Thus on good cause shown, the Court may condone the
non-observance of the time frames stipulated
in section 191 of the
LRA or in its rules. The principles surrounding the granting of
condonation are well known as were articulated
in
Melane
v Santam Insurance Co. Ltd
[2]
.
A further factor to be considered in determining such applications is
whether it would be in the interests of justice to grant
condonation
or not
[3]
.
[6]
At these proceedings, the Third Respondent had indicated that it no
longer opposed the application for condonation. I have noted
the
irregular step in the bringing of the application for condonation,
and took into account that it was no longer opposed. Further
having
had regard to the averments and submissions made in regard to the
extent and reasons for lateness, I am satisfied that given
the
circumstances of this case, it would not be in the interests of
justice to deny condonation.
Background:
[7]
The Applicant was employed in August 1993 as a Sewing Machine
Operator. She was dismissed on 31 August 2011 following upon a
disciplinary enquiry into allegations of misconduct. The allegation
was essentially that she had falsely laid a claim of racial
abuse
against the Third Respondent’s Plant HR Manager, Michelle
Gibbon. The Applicant alleged that Gibbon addressed her as
a
‘kaffir’.
The
arbitration proceedings and the award:
[8]
Following her dismissal, the Applicant referred a dispute to the
First Respondent (MIBCO), and the matter came before the Arbitrator,
resulting in the award which is the subject of this review
application. The evidence before the Arbitrator was as follows;
8.1
On 8 April 2011, damage to a water pipe had caused problems in the
supply of water on the
Third Respondent’s premises. The
employees were aggrieved at the state of affairs and embarked on
whistle blowing and singing.
8.2
Gibbon, accompanied by the Plant Production Manager, Swanepoel,
confronted the Applicant
about her whistle blowing. The Applicant
alleged that it was at that time that Gibbon said to her; ‘
Stop
blowing the whistle Kaffir!’
, and demanded that she refrain
from her action of blowing a whistle.
8.3
Arising from the events of 8 April 2011, on 12 April 2011 Swanepoel
issued the Applicant
with two final written warnings. The first was
in respect of insolence towards Gibbon in that the Applicant had
acted disrespectfully
towards her for blowing the whistle after being
requested to refrain from doing so. The second final written warning
was for insubordination,
disrespect or disobedience by displaying a
wilful and deliberate attitude of not submitting to authority when
she refused to obey
an instruction from Swanepoel to stop blowing her
whistle. The Applicant had refused to sign acknowledgement of those
warnings.
8.4
On the same day and after the warnings were issued to her, the
Applicant filed a grievance
against Gibbon, in which she alleged that
she was verbally abused by being called a ‘kaffir’. The
outcome of the grievance
she sought was the dismissal of Gibbon.
8.5
On 14 April 2011, a grievance hearing was convened and as no
settlement was reached, the
Third Respondent decided that Gibbon
should be charged with alleged use of abusive language. During May
2011 an investigation was
conducted into the allegations against
Gibbon, and she was found not guilty. It was also decided that an
investigation should be
conducted into the Applicant’s conduct
due to the ‘false allegation’ of racial abuse against
Gibbon.
8.6
On 28 June 2011, the Applicant was notified to attend a disciplinary
enquiry scheduled for
20 July 2011. She was subsequently found guilty
and dismissed for falsely lodging a claim of racial abuse against
Gibbon.
[9]
Gibbon in her evidence denied having uttered the words ascribed to
her by the Applicant. According to her, the incident was
sparked
after a meeting was arranged to meet with the shop stewards to
address the problem related to the water supply. She and
Swanepoel
were waiting outside the Boardroom for the shop stewards to come to
the meeting when other employees started blowing
whistles. She and
Swanepoel went to the shop floor to establish which employees were
blowing whistles. She had noticed that the
Applicant was one of the
employees blowing her whistle and had asked her to refrain from doing
so. She vehemently denied having
racially abused the Applicant in the
manner described.
[10]
Swanepoel, who was with Gibbon at the time of the incident of 08
April 2011 testified that he had heard everything said by
Gibbon to
the Applicant and denied that the Applicant was verbally and racially
abused.
[11]
The Applicant’s case as introduced by her representative at the
arbitration proceedings was to deny having contravened
any rule. Her
case was further that if she had, then the sanction of dismissal was
harsh because Gibbon had provoked her, and also
victimised her for
having refused to work excessive overtime.
[12]
The Applicant’s testimony was that Gibbon confronted her and
said ‘Stop kaffir’. Although other employees
had seen
Gibbon confront her, no one had heard what was said to her due to the
noise made by the machines, the singing and whistle
blowing. She also
denied that Swanepoel could have heard what Gibbon had said to her
either because of the noise, or due to the
fact that he was not there
in the first place.
[13]
Moalusi’s testimony on behalf of the Applicant was that Gibbon,
who was alone at the time had approached the Applicant
in an angry
mood. Moalusi was about four metres away from the Applicant when she
was approached by Gibbon who had leaned towards
her and whispered
something into her ear. She did not hear what it was that Gibbon had
said to the Applicant. Swanepoel according
to Moalusi was also a
distance away from them so he also could not have heard what was
said. Swanepoel had at some point pulled
Gibbon away from the
Applicant.
[14]
Lekalakala, who was a shop steward and had also represented the
Applicant with the investigations, in the internal grievance
and at
the disciplinary hearing had also testified seeing Gibbon on her own
going to speak to the Applicant. Swanepoel, at a later
stage, went to
where Gibbon and the Applicant were and spoke to them. Lekalakala
however did not hear what Gibbon had said to the
Applicant, nor had
he heard what Swanepoel had said to both of them.
Grounds
of review and evaluation:
[15]
It is not necessary to deal with all the grounds of review save to
state that the Applicant attacked the Arbitrator’s
award on the
basis that her decision was neither rational nor justifiable as she
failed to apply her mind, misdirected herself,
committed a gross
irregularity, acted unreasonably and unjustifiably, and did not
properly consider the facts of the case. The
Third Respondent’s
contentions were the Arbitrator did not commit any gross
irregularity, and that she came to a decision
that a reasonable
decision maker could have come to, based on the evidence before her.
[16]
The question that arises in this case is whether there is a basis for
this Court to make a finding that the decision of the
Arbitrator
falls outside the band of reasonableness in accordance with the test
for review as set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[4]
.
In
Herholdt
v Nedbank Ltd
[5]
,
the Supreme Court of Appeal,
per
Cachalia JA summarized the review test as follows
:
‘
A review of a CCMA award is
permissible if the defect in the proceedings falls within one of the
grounds in section 145(2) (a) of
the LRA. For a defect in the conduct
of the proceedings to amount to a gross irregularity as contemplated
by section 145(2) (a)
(ii), the arbitrator must have misconceived the
nature of the enquiry or arrived at an unreasonable result. A
result will
only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before the
arbitrator.
Material errors of fact, as well as the weight and
relevance to be attached to particular facts, are not in and of
themselves sufficient
for an award to be set aside, but are only of
any consequence if the effect is to render the outcome unreasonable.
’
[17]
In the award, the issue before the Arbitrator as she had recorded it
was whether or not the allegation made in the grievance
against
Gibbon was false and whether the latter had called the Applicant a
‘kaffir’. It can therefore be accepted that
in line with
the approach of the Labour Appeal Court in
Goldfields
Mining South Africa (Pty) Ltd v
CCMA
and Others
[6]
, the Arbitrator
had properly identified the issues she was required to determine and
also understood the nature of the dispute
she was required to
arbitrate.
[18]
The basis of the Applicant’s defence to the allegations against
her as recorded by her representative in the arbitration
proceedings
was that she denied having contravened any rule, and that if she had,
then the sanction of dismissal was harsh because
Gibbon had provoked
her, and also victimised her for having refused to work excessive
overtime
[7]
. From the evidence
presented, it was apparent that the Arbitrator was faced with two
mutually destructive versions as it was the
Applicant’s word
against that of Gibbon as to whether the words in question were
uttered or not.
[19]
The approach to be adopted by Arbitrators when faced with two
disputing versions is that as set out by Van Niekerk J in
Sasol
Mining (Pty) Ltd v Ngqeleni NO & Others
[8]
,
where it was held that the Arbitrator must conduct an
‘
. . .
assessment of the credibility of the witnesses, a consideration of
the inherent probability or improbability of the version
that is
proffered by the witnesses, and an assessment of the probabilities of
the irreconcilable versions before the commissioner.
As Cele AJ (as
he then was) observed in
Lukhnaji
Municipality v Nonxuba NO & others
[2007] 2 BLLR 130
(LC), while the LRA requires a commissioner to
conduct an arbitration hearing in a manner that the commissioner
deems appropriate
in order to determine the dispute fairly and
quickly, this does not exempt the commissioner from properly
resolving disputes of
fact when they arise.’
[20]
In this case, I am satisfied as can be gleaned from the Arbitrator’s
findings as summarised below that she had indeed
assessed the
credibility of the witnesses, considered the inherent probabilities
or improbabilities of the versions that were proffered
by the
witnesses, and also conducted an assessment of the probabilities of
the irreconcilable versions before her. In my judgment,
and as shall
further be illustrated below, there is clearly no basis for the award
to be interfered with.
[21]
In finding that the dismissal was fair, the Arbitrator held that the
evidence of the Applicant and that of her witnesses was
‘conflicting
and had improbabilities’, whilst that of the Third Respondent
was consistent. The Arbitrator stated that
the evidence on behalf of
the Applicant was ‘conflicting’ in regards to the
distance between herself and Gibbon; that
since no one had heard what
Gibbon had said to her because of the noise from machines, the
singing and whistle blowing, it was
unlikely that Gibbon would have
whispered racial abuse to her when it was the Applicant’s
witnesses’ testimony that
Gibbon had approached her in raised
voice and in an angry mood.
[22]
The Arbitrator further found that the Applicant’s testimony in
regards to the use of whistles at the plant was also unreliable
in
the light of her denials. This was in view of Swanepoel’s
testimony that there were rules prohibiting the use of whistles
and
that all employees knew of the rules as they were placed on notice
boards inside the factory and discussed with shop stewards.
The
Arbitrator found that there was indeed a rule against whistle
blowing, which the Applicant was well aware of, and which was
also
reasonable.
[23]
The Arbitrator also correctly found inconsistencies in the evidence
of the Applicant and her witness, Moalusi in regard to
what they had
heard Gibbon say to the Applicant. Whilst the Applicant testified
that Gibbon had called her a ‘kaffir’,
Moalusi on the
other hand had testified that the Applicant had informed her after
the incident that she had referred to her as
a ‘black person’.
It was submitted on behalf of the Applicant that the two terms in any
event denote racial slurs and
that to this end, it should have been
found that indeed Gibbon did make racial slurs.
[24]
There is indeed a difference between the two terms allegedly used
against the Applicant. Reference to ‘black person’
could
be stated as a matter of fact unless it can be deduced from the
context that it was made with a racist, demeaning or derogatory
undertone. ‘Kaffir’ on the other hand is
self-explanatory, and within the context of our racist past, refers
to nothing
but black people in racist and derogatory, demeaning
terms. In the light of these inconsistencies between what the
Applicant had
alleged was said to her by Gibbon, and what she had
told Moalusi, I fail to appreciate how it can be said that the
Arbitrator’s
conclusions were irrational.
[25]
It was also found that there was no substance to the allegation that
Gibbon had held a grudge against the Applicant, as Gibbon’s
testimony was to the effect that before the incident in question, she
had never met the Applicant before nor had they had any discussions
between them regarding workplace issues.
[26]
The Arbitrator had also correctly drawn an adverse inference from the
submissions made that had Gibbon not approached the Applicant
in the
first place, the incident would not have taken place. The argument
that there was provocation and that no misconduct was
committed in
the same breath is mutually destructive, and the Arbitrator’s
conclusion that the argument was in conflict with
the Applicant’s
case that she had done nothing wrong was reasonable.
[27]
The Arbitrator further held that if Gibbon had indeed called the
Applicant a ‘kaffir’, she would probably have
immediately
raised the issue with her immediate supervisors, other mangers or her
union. Significantly, the shop steward, Lekalakala
had also observed
the incident and it is inexplicable that the Applicant would not
immediately inform him of the alleged racial
abuse. The Applicant
instead waited two working days prior to lodging the complaint, and
only did so after she was issued with
final warnings. The
Arbitrator’s conclusions that there was no substance to the
allegations made by the Applicant cannot
be faulted, especially in
view of the nature and extent of the abuse alleged, which any other
person would have taken seriously
and immediately reported.
[28]
The Arbitrator had also correctly found that the Applicant had ample
time to consider her position after she was reminded of
the
consequences of laying a false claim, and also that there was no
substance to the allegations of victimisation. The issue of
victimisation was clearly a red herring in that if it was indeed
serious, there was no reason for the Applicant to belatedly raise
it.
[29]
With regards to the appropriateness of the sanction of dismissal, the
Arbitrator took into account that the Applicant was told
during the
investigations that the Third Respondent took the making of racial
slurs and false allegations of racial abuse in serious
light; that
the Applicant showed no remorse or awareness of any wrongdoing; that
the making of a false claim was a serious offence
that breached a
trust relationship, and further that the Applicant had been dishonest
in her evidence.
[30]
The use of racially charged language and racist invectives within any
workplace can never be countenanced nor left unpunished
[9]
.
This is even moreso in our country given its painful history of
racial intolerance. In this case, the Third Respondent acted
correctly in convening the grievance hearing and where no substance
was found in the allegations against Gibbon, to also investigate
and
charge the Applicant.
[31]
Clearly the Applicant was aggrieved by the two warnings issued to her
after the incident related to whistle blowing. Rather
than atoning
for her actions and appealing against those warnings, she went on a
revenge mission by accusing Gibbon of racist conduct
when she knew
that there was no substance in her allegations. As the Arbitrator had
correctly found, the sole purpose of her grievance
was to get Gibbon
dismissed.
[32]
Unfounded allegations of racism against individuals has become a past
time for employees who normally find themselves in a
pickle at the
workplace, and when they cannot justify their unbecoming conduct or
get what they want. It is always easy to make
such allegations
because the natural reaction of third parties would be that of
sympathy towards the ‘victim’ of the
alleged racist
abuse, and immediate derision towards the alleged perpetrator.
However, where there is no substance to those allegations,
the
alleged victim must equally be rebuked
[10]
,
in that those unfounded allegations not only have a detrimental
effect on the alleged perpetrator, but also affect employment
relations between employees of different races, and impacts
negatively on a general trust relationship between the employee
making
those allegations and the employer
[11]
.
To this end, the Arbitrator’s decision that the dismissal
of the Applicant was substantively in these circumstances
falls
within a band of reasonableness.
[33]
The Applicant also took issue with the fact that the Arbitrator had
only dealt with the substantive fairness of the dismissal
when her
case was also that the dismissal was procedurally unfair. In this
regard, it was submitted that the Arbitrator ignored
the fact that
prior to the whistle blowing incident she had no prior disciplinary
warnings against her and that those issued were
not procedurally
correct as no disciplinary hearing was held.
[34]
There is no substance in the above submissions in that in her
referral, the only issue before the First Respondent and the
Arbitrator was an alleged unfair dismissal dispute. An unfair labour
practice dispute had not been referred simultaneously with
the
dismissal dispute. Secondly, at the commencement of the proceedings
when the Applicant’s representative made his opening
submissions, the Arbitrator had asked him whether the procedural
fairness was challenged, and when he referred to the two warnings,
the Arbitrator correctly informed him that the warnings were not an
issue for determination before her. At that point, the representative
then conceded and when asked whether he was satisfied with the
procedure (followed), he had responded in the positive
[12]
.
There is therefore no basis for a conclusion to be reached that the
Arbitrator ignored any material in regards to procedural unfairness
as none was placed before her.
[35]
Having evaluated the material that was placed before the Arbitrator,
and further having had regard to the submissions and arguments
made
on behalf of the parties, I am satisfied that the Arbitrator dealt
with the substantial merits of the dispute, and that the
decision
arrived at was one that another decision-maker could reasonably have
arrived at based on the evidence before her.
[36]
The Court extends its gratitude to Adv. Bucksteg and UNISA Law Clinic
for appearing
pro bono
on behalf of the Applicant and it is
therefore not necessary to consider costs.
Order:
i.
The
Applicant’s late filing of the review application is condoned.
ii.
The
application to review and set aside the award issued by the Second
Respondent under case number MIPT12304 dated 12 March 2012
is
dismissed.
iii.
There
is no order as to costs.
______________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
Adv. H Bucksteg (
Pro Bono
)
Instructed
by:
UNISA Law Clinic
For the First
Respondent:
Mr. L Frahm-Arp of
Fasken Martineau Attorneys
[1]
Act 66 of 1995 as amended
[2]
1962
(4) SA 531
(A) at 532B-E, where the Court held that;
‘
In
deciding whether sufficient cause has been shown, the basic
principle is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence it
is a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation therefor, the
prospects of success and the importance of the case. Ordinarily
these facts are interrelated, they are not individually decisive,
save of course that if there are no prospects of success there
would
be no point in granting condonation. Any attempt to formulate a rule
of thumb would only serve to harden the arteries of
what should be a
flexible discretion. What is needed is an objective conspectus of
all the facts. Thus a slight delay and a good
explanation may help
to compensate prospects which are not strong. Or the importance of
the issue and strong prospects may tend
to compensate for a long
delay. And the Respondent’s interests in finality must not be
overlooked”
[3]
Brummer v Gorfil
Brothers Investments (Pty) Ltd
[2000] ZACC 3
;
[2000] (2) SA 837
(CC) at 839 F
[4]
2008 (2) SA 24
(CC) at para 110
[5]
[2013] 11 BLLR 1074
(SCA) par 25 at
1084.
[6]
[
[2007] ZALC 66
;
2014]
1 BLLR 20
(LAC)
where
it was held that;
‘
The
questions to ask are these: (i) In terms of his or her duty to deal
with the matter with the minimum of legal formalities,
did the
process that the arbitrator employed give the parties a full
opportunity to have their say in respect of the dispute?
(ii) Did
the arbitrator identify the dispute he was required to arbitrate
(this may in certain cases only become clear after
both parties have
led their evidence)? (iii) Did the arbitrator understand the nature
of the dispute he or she was required to
arbitrate? (iv) Did he or
she deal with the substantial merits of the dispute? and (v) Is the
arbitrator’s decision one
that another decision-maker could
reasonably have arrived at based on the evidence’
[7]
Page 8 of the
record of proceedings
[8]
(2011) 32 ILJ 723
(LC) at 727C-F, also in reference to
SFW
Group Ltd & another v Martell et Cie & others
2003 (1) SA 11
(SCA) , where the Supreme Court of Appeal held that;
‘
On
the central issue, as to what the parties actually decided, there
are two irreconcilable versions. So, too, on a number of
peripheral
areas of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving
factual disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed issues a court
must make findings on
(a) the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities.
As to (a), the court’s
finding on the credibility of a particular witness will depend on
its impression about the veracity
of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as
(i) the witness’ candour and demeanour
in the witness-box, (ii) his bias, latent and blatant, (iii)
internal contradictions
in his evidence, (iv) external
contradictions with what was pleaded or put on his behalf, (v) the
probability or improbability
of particular aspects of his version,
(vi) the calibre and cogency of his performance compared to that of
other witnesses testifying
about the same incident or events. As to
(b), a witness’ reliability will depend, apart from the other
factors mentioned
under (a) (ii), (iv) and (v) above, on (i) the
opportunities he had to experience or observe the event in question
and (ii) the
quality, integrity and independence of his recall
thereof. As to (c), this necessitates an analysis and evaluation of
the probability
or improbability of each party’s version on
each of the disputed issues. In the light of the assessment of (a),
(b) and
(c) the court will then, as a final step, determine whether
the party burdened with the onus of proof has succeeded in
discharging
it. The hard case, which will doubtless be a rare one,
occurs when a court’s credibility findings compel it in one
direction
and its evaluation of the general probabilities in
another. The more convincing the former, the less convincing will be
the latter.
But when all factors are equipoised probabilities
prevail.’
[9]
See
South
African Chemical Workers Union and Another v NCP Chlorchem (Pty) Ltd
and Others
(J1399/2005)
[2007] ZALC 120
(1 June 2007) at para [13], where this
court held that;
‘
I
can hardly conceive of any place or circumstance or country where,
if a person is told that he is racist, it will not be experienced
by
such person as him or her being insulted and abused. Therefor, in
our country with its history of racial discrimination, it
need
hardly be debated, I believe, that employers, generally speaking,
are enjoined to do their best to create a working environment
free
from racism. Apart from employers being statutorily obliged to do
so, it is patently the right thing to do….’
[10]
See
SACWU
and Another vs NCP Chlorchem (Pty) Ltd and Others
2007 28 ILJ 1308 (LAC)
[11]
See
Weitz
v Goodyear SA (Pty) Ltd & Others
(2014) 35 ILJ 441 (ECP) at para [18]
[12]
Page 9 of the
transcribed record