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[2015] ZALCJHB 364
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Kroon Gietery & Staal (Pty) Ltd v NUMSA obo Morake and Others (JR442/2013) [2015] ZALCJHB 364 (1 October 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 442/2013
In the matter between:
KROON GIETERY & STAAL (PTY)
LTD
APPLICANT
and
NUMSA obo S
MORAKE
FIRST RESPONDENT
METAL AND ENGINEERING
BARGAINING
COUNCIL
SECOND RESPONDENT
JOSEPH MPHAPHULI
N.O
THIRD RESPONDENT
Date of hearing: 10
September 2015
Date
of judgment: 1 October 2015
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the
third respondent, to whom I shall refer as ‘the
arbitrator’. In his award, the arbitrator found that Mr S
Morake (the
employee), on whose behalf the first respondent acts, had
been unfairly dismissed by the applicant. The arbitrator ordered that
the employee be reinstated.
[2]
The employee was dismissed on charges of insubordination and
exhibiting disrespectful
behaviour toward the applicant’s
management. The charge of insubordination had its roots in an
incident in which the employee
left his workplace without completing
his duties after having been instructed to do so. The charge of
disrespectful behaviour related
an earlier incident on the same day
when the employee is alleged to have shouted at his manager, a Mr
Smit, pointed a finger at
him and warned him that he was “watching
him”.
[3]
The arbitration hearing took place on 15 January 2013. Only two
witnesses testified
at the arbitration hearing – Smit for the
applicant and the employee on his own behalf. The version proffered
on the applicant’s
behalf was that on 26 October 2012, the
employee led a group who approach Smit to complain about overtime
payments. Smit testified
that he informed the employees that they
were not paid overtime because they had not worked overtime. At this
point, the employee
became angry and pointed a finger at him and
warned him that he was watching him. The employee then said to the
other employees
in the office that talking to him (Smit) was a waste
of time and that that they should leave the office. The employees
then eft
without completing work on sandboxes, as they ordinarily did
on a Friday. As a consequence, there was a loss in production. The
employee denied having influenced other employees to leave before
completing the sandbox. He also denied having shouted at Smit
or
otherwise having behaved disrespectfully toward him. The employee
stated that the reason he left the applicant’s premises
without
completing the sandbox was because he had reason to believe that his
employer would not pay him for the overtime work necessary
to
complete the sandbox, as he had not been paid for similar overtime in
the past.
[4]
The arbitrator correctly recorded that there was a dispute of fact as
to whether the
employee had acted in a threatening disrespectful
manner towards Smit. He goes on to find the following
29.
Mr Smit’s testimony constituted a single version. Mr Smit’s
version was not
corroborated and was not convincing.
30.
The respondent only led Mr Smith’s evidence to prove its case.
The onus to establish
the existence of misconduct lied with the
respondent. Proof is on a balance of probabilities. I do not find
that the balance of
probabilities favour the respondent’s case.
31.
The reason being that there was cause for Mr Smit to be upset in that
he did not appreciate
the employees approaching him when in fact they
did not deserve payment for overtime in his view. His claim for
disrespectful and
threatening behaviour was not supported by
evidence, notwithstanding the fact that there were other witnesses on
the scene according
to Mr Smit.
32.
The version that the applicant was a leader of the group on the shop
floor was discarded
by the applicant. The applicant was not a shop
steward, a supervisor or a team leader and had no authority
whatsoever to direct
the actions of his fellow employees.
33.
The applicant was ready to admit that together with his fellow
employees that left the workstation
without carrying out their
overtime duties.
34.
According to the applicant the employees had no confidence that the
respondent would pay
them for overtime duties. The employee’s
action was informed by the respondent’s failure to pay them
overtime which
was the reason for the dispute addressed in the Mr
Smith’s office.
35.
Ordinarily the employee’s conduct was cause for disciplinary
action; in the same vein
cannot be ignored that the employee’s
action was prompted by the respondent’s failure to compensate
the employees for
overtime work done in the recent past.
36.
This factor should have been taken into account when beating the
disciplinary action. The
fact that other employees who participated
in the same misconduct were not found guilty on the basis of
unsubstantiated evidence
that they were influenced by the applicant
renders the reason for dismissal to be unfounded. Further it makes
the respondent’s
approach to the application of workplace
discipline to be inconsistent.
37.
It is against this background that I find that the dismissal had no
basis in law and was
not supported by facts.
[5]
The arbitrator’s logic, as far as this can be discerned from
the above analysis,
appears to be that the employee’s
conduct would ordinarily have warranted disciplinary action but was
not culpable in the
present instance since it had been prompted by
the applicant’s prior failure to compensate its employees for
overtime work
done. The second finding made by the arbitrator that
served to exculpate the employee was the inconsistent application of
discipline,
and in particular the fact that other employees
participated in the same misconduct were found not guilty.
[6]
These two findings clearly led the arbitrator to conclude that the
applicant had failed
to discharge the onus of proof to establish a
substantively fair dismissal. (Procedure not been placed in issue
during the course
of the proceedings under review.)
[7]
In my view, the arbitrator, in reaching the conclusion that he did on
the material
before him, committed a reviewable irregularity in the
conduct of the arbitration proceedings. I deal first with the issue
of the
finding relating to applicant’s alleged failure to pay
its employees overtime when overtime was worked. Smit’s
evidence
was there was a practice in terms of which employees would
commence work early on a Friday (at 7:00) and that the shift would
ordinarily
end at 13:00. Because those employees engaged in
constructing sandboxes were required to complete the work so as to
enable a later
melting, they continued work until the job had been
completed, usually by 14:00 to 14:30 each Friday. This entitled them
to overtime
pay which ordinarily they were paid. However certain
employees (and the employee in particular) had begun a practice of
arrived
late for the shift, some 40 to 45 minutes after the scheduled
starting time. The employee denied that he arrived for work late.
For
the applicant, the consequence of the late start was that the work
performed after 13:00 was work that fell within ordinary
working
hours and did not attract the premium of overtime work. When the
employee gave evidence he appeared initially to suggest
that the
employees had left the premises at 13:00, because that was the normal
knockoff time. It was only after a grossly leading
question put to
him by the arbitrator as to the reason why the employee had left at
13:00 that the version of a prior failure to
pay for overtime work
emerged. In this regard, it should be noted that but for the
employee’s monosyllabic response to the
arbitrator’s
question, there was no cogent evidence presented by the employee to
the effect that the applicant had failed
to compensate him for
overtime work done in the recent past.
[8]
In short, what the arbitrator had before him was a material dispute
of fact. Smit
had testified that the employee had arrived late and
that work performed after 13:00 on Fridays thus did not attract the
premium
ordinarily paid for overtime. The employee denied that he had
ever arrived late. Smit’s evidence was that employees had been
paid overtime rates when overtime was worked. The employee denied
this and based his defence almost entirely on the refusal or
failure
by the applicant to pay overtime rates for overtime worked.
[9]
What the arbitrator failed to do was to determine the factual dispute
before him by
a proper assessment of the credibility of the witnesses
and the inherent probabilities of each version before him. Instead,
the
arbitrator came to the conclusion (without giving reasons) that
the employee’s version was the more probable and that the
applicant had thus failed to discharge the onus of proof. This in
itself demonstrates a misconception on the part of the arbitrator
in
relation to the resolution of factual dispute. The onus of proof
ordinarily becomes relevant only where the probabilities are
evenly
balanced and it is not possible to prefer one version over another on
the basis of the probabilities. It was incumbent on
the arbitrator to
determine that dispute by conducting a proper and reasoned assessment
of the evidence. Instead, what the arbitrator
did was simply to
prefer one version over the other, without giving cogent reasons for
accepting one and rejecting the other, and
erroneously apply the onus
of proof.
[10]
In relation to the second finding made by the arbitrator, that of
inconsistency, there was simply
no evidence that served before him to
sustain this conclusion. Smit’s uncontested evidence was that
other employees who had
left the applicant’s premises early had
been disciplined and that in a disciplinary hearing conducted by an
independent chairperson,
it had been found that they had been
influenced by the employee. On that basis, they were not dismissed.
The arbitrator makes no
reference to this evidence (which was not
contested or subject of challenging cross-examination) and concludes
that the employees
concerned were found not guilty ‘on the
basis of unsubstantiated evidence’ that they had been
influenced by the employee.
This finding lacks any factual foundation
- no evidence had been presented as to the disciplinary proceedings
initiated against
the other employees or what had transpired in the
course of those hearings.
[11]
The erroneous approach adopted by the arbitrator in relation to the
assessment of evidence is
further demonstrated by what appears to be
his finding that the employee did not act disrespectfully towards
Smit. The arbitrator
appears to have rejected Smit’s version
because in his view, there was cause for him to be upset at the
nature of the approach
made to him when he (Smit) believed that the
employees did not deserve payment for overtime (see paragraph 31 of
the award). For
this reason, the arbitrator appears to have accepted
the employee’s version that he did not shout at Smit or act
disrespectfully
towards him. Again, what the arbitrator failed to
appreciate was that he had before him a material dispute of fact. The
arbitrator
failed properly to assess the evidence, to make
credibility findings as far the respective witnesses are concerned
and to make
any finding on the inherent probabilities of the versions
placed before him. Having failed to conduct the required assessment
in
relation to the version that served before him, he simply
concluded that the applicant had led insufficient evidence to
establish
that the employee had acted disrespectfully. In doing so,
and in summarily rejecting Smit’s evidence, the arbitrator
committed
a reviewable irregularity.
[12]
Of course, the test to be applied is whether the arbitrator’s
conduct had the consequence
of an outcome that is unreasonable in the
sense that the decision to which the arbitrator came falls outside of
a range of responses
to which a reasonable decision-maker could come
on the available material. In my view, the arbitrator’s award
is not capable
of being rescued by reference to the material that
served before him. In the circumstances, the award stands to be
reviewed and
set aside.
I
make the following order:
1.
The arbitration award issued by the third
respondent under case number MIFS 1882 on 24 January 2013 is reviewed
and set aside.
2.
The matter is remitted to the second
respondent for rehearing before an arbitrator other than the third
respondent.
3.
There is no order as to costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
REPRESENTATION
For
the applicant: Mr H Wissing, Henk Wissing Attorneys
For
the first respondent: Union official