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[2015] ZALCJHB 446
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Dinkwenyana and Another v Bokoni Platinum Mine and Others (JS1179/11) [2015] ZALCJHB 446 (1 December 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no. JS 1179/11
In
the matter
between:
CHARLES
DINKWENYANA
First Applicant
NATIONAL
UNION OF
MINEWORKERS
Second Applicant
and
BOKONI
PLATINUM
MINE
First Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second Respondent
FRANCIS
MAAKE KGANYAGO
N.O
Third Respondent
Heard:
23 May 2014
Delivered:
01 December 2015 (In chambers)
Judgment on
application for leave to Appeal
Shai
AJ
Introduction
[1]
On 22
October 2014 I issued a judgment in the following terms:
a)
“
The
application for review and setting aside of the Third Respondent’s
award dated 19 Mach 2011 issued under the auspices
of the First
Respondent under case number
LP4695-10
is dismissed.
b)
The First
and Second Respondents are ordered to pay the costs of the
application jointly and severally”
[2]
The
Applicant has now applied for leave to appeal against the whole
judgment.
[3]
The
application is opposed by the First Respondent.
Grounds
for application for leave to appeal.
[4]
The
applicants raised the following grounds of appeal:
“
4.
The Court erred in making the following findings, and the Applicant’s
submissions follow each finding”.
[5]
That the
Applicant allocated marks in respect of a question when he had not
recorded an answer.
5.1
The arbitrator committed
a defect as envisaged in section 145 of the LRA, and the Court erred
in this regard, by ignoring the undisputed
evidence by Moloto, the
Respondent’s key witness, that he had provided the Applicant
with an executive pad to write on during
the interview, and that of
the Applicant to the effect that he had written some of the answers
on the pad, especially long answers
which could not fit on the small
space provided in the questionnaire, including the questionnaire of
Makgere, and this was also
argued during the hearing. The Court did
not consider this, hence, it has given no reason for rejecting it.
5.2
The Court found
that the Commissioner was correct in finding that it was common cause
that the questionnaire had to be completed
in full and all answers,
comments and marks had to be recorded on the questionnaire, when
there was no such evidence on record,
hence, neither the commissioner
nor Court referred to that specific evidence. The Applicant’s
evidence that an answer to
a question could be recorded on the
questionnaire, or on the pad, remained undisputed.
5.3
In fact, although Moloto
did not tell what the Applicant had to write on the pad, at least he
corroborated the Applicant’s
version that some information had
to be written on the pad. The Applicant’s version that he was
allowed to write, and in
fact wrote, answers on the pad was never
disputed.
5.4
Therefore, the
commissioner’s finding in this regard is incorrect, and the
Court erred, another court might find.
5.5
Although the
judgment referred to the questionnaire of Makgere as appearing on
page 31 of the Bundle, it was clearly a typing error,
as the correct
page 311, and as stated above, the Applicant’s undisputed
version is that he recorded all answers, those which
he did not
record on the questionnaire, he recorded on the pad.
[6]
The Court
found that, at page 312, the Applicant allowed 10 marks for each
answered question which gives him a total of 130 scores
and
percentage wise he was allocated 75%.
6.1
The Court
misunderstood seventy five percent (75) allocated as the percentage
for 10 marks multiplied by three (3), whereas it was
the total of the
mark on page 311 and 312.
6.2
As long as
the Respondent had led no evidence as to how much the total in the
questionnaire had to be, no one can say a total of
130 marks could
not be seventy five percent (75%). The court erred in speculating in
this regard, and based its findings on an
assumption that 130 can
never be seventy five percent (75%), and therefore erred in this
regard.
6.3
The court
found that at page 313 appears the questionnaire for one Lucas
Mogashwa. No answer is recorded on any of the questions.
He was
nevertheless given scores ranging from 10-20.
6.4
The Court
clearly ignored the evidence with regard to the use of the pad, as
explained by Moloto and the Applicant.
[7]
At page
314, he was given scores of 2 marks for the three answered questions
and given a percentage of 50%.
[8]
Again, the
court misunderstood the evidence. The fifty percent (50%) was not for
the six (6) marks on page 314, but was the total
of the marks on
pages 313 and 314. This implies that the total expected was twice the
marks allocated, and there was no evidence
to the contrary, which if
it existed, the Respondent had to lead as it bore the onus of
providing the fairness of the dismissal,
and did not.
[9]
The same
applies to the court’s reference to the seventy eight percent
(78%) on page 317, which in fact relates to pages 317
to 318.
[10]
The court
found that there were many of this kind and all by the Applicant.
10.1.
It is
submitted there were no instances where the Applicant was proven to
have acted contrary to the applicable workplace rules/standards.
Hence the court did not specify them. Clearly, the court’s view
is based on the same errors referred to immediately above,
another
court might find.
[11]
What is clear is that, the Commissioner understood the facts before
him and applied his mind to them. What is further clear
to me is that
the Applicant knew the standard but did not follow the said standard.
11.1
On the evidence on record, the Applicant recorded the answers and
submitted them to the Respondent. This
was the only standard
testified about, and he has complied therewith. There is nothing else
about the standard, with the Applicant
did not comply, hence, the
Court has not referred to the specific provisions thereof, which have
not been complied with.
[12]
The court found that the Applicant was asked on several occasions to
explain how he allocated, and could not.
12.1
In this regard, the court ignored the Applicant’s evidence
demonstrating that he did not know what a percentage is, let
alone
calculating, and this was argued during the hearing.
12.2
The Applicant also indicated their
scoring was not percentage based, but experience.
12.3
The above clearly demonstrated that the
Respondent entrusted the Applicant with work he was not qualified
for
and was not competent to do. Therefore, his failure to perform was
not misconduct, but more of incompetence, and he was not
dismissed
for incompetence.
12.4
The commissioner failed to apply his mind to the answers given by the
Applicant, which demonstrated incompetence and no misconduct,
another
court might find.
[13]
The court found that, with regard to the issues of signature of the
questionnaire, the instruction was that they prepare a
questionnaire
which was to be agreed between the Applicant and his supervisor, and
take a pad for purpose of making notes and when
a candidate was
agreed upon, both members of the panel must sign it.
13.1
The court ignored the Applicant’s evidence, and to an extent,
that of Moloto, that there was
no
instruction that both must sign.
13.2
The court further ignored the evidence on record, including that of
Moloto, to the effect that the panelists never agreed on
any
candidate as a successful one, and therefore, even according to
Moloto’s evidence that joint signature was only required
when
the panelists agreed on a successful candidate, there was no need for
both panelists to sign, and therefore the fact that
Skhonza did not
sign the questionnaire is not proof of any misconduct on the
Applicant’s side.
[14]
The court found that the Applicant had conceded that percentage
determined appointability, and therefore both panelists had
to sign.
14.1
In this regard, the court ignored the Respondent’s evidence on
the interview procedure, which clearly confirms that,
despite what
the Applicant might have said or conceded, percentages were not used
for the purpose of appointing employees.
14.2
On the other hand, a proper analysis of the Applicant’s
evidence reveals that he did not know what a percentage is, and
did
not mean that percentages were used to appoint. The court erred in
looking at his evidence piecemeal, instead of as a whole,
another
court might find.
14.3
As stated above, the court erred in
concluding that the Commissioner was correct in his finding
that the
completed questionnaire with percentages must be signed for by panel
members, when Moloto’s evidence was that the
requirement that
both panelist should sign applied only when they agreed on a
successful candidate, another court might find.
[15]
The court found that the commissioner is correct in finding that the
Applicant has not complied with the Respondent’s
interview
procedures.
15.1
It is submitted that the court erred in this regard, as the evidence
revealed that the Applicant had complied with all the
interview
requirements as testified to by Moloto and Duba, neither the
commissioner nor the court has specified the specific provision
of
the procedure which the Applicant has allegedly not complied with,
except the reference to both panelists signing, which was
dealt with
immediately above.
15.2
The court erred in using general terms in this regard in this
judgment, making it impossible for the Applicant to deal with,
another court might find.
[16]
The court found that, the Applicant had worked in the HR Department
for about eight (8) years and had conceded in evidence
that one of
his duties is recruitment, and he had volunteered to do the
recruitment. Therefore, the court found that he knew how
to conduct
an interview.
16.1
The court made an unfounded assumption that,
working in a human resource department entailed conducting
interviews, despite the fact that, on the evidence on record, the
Applicant’s normal duties excluded interviews, and he was
only
involved on the day because Moloto was unavailable.
16.2
There was no evidence that the
Applicant was trained with regard to recruitment procedures,
and
therefore he has not shown to be competent, irrespective of whether
or not he might have previously and occasionally involved
in
interviews, another court might find.
16.3
The court erred in assuming that, knowing the
recruitment procedures entailed knowing all the do’s and don’ts
of, and experience in , interviews, when there is no evidence to that
effect, another court might find.
16.4
The court misunderstood the evidence with regard to the
Applicant’s alleged volunteering to attend the interview
as
having forced to do the interviews, when the Applicant, in a good
workplace spirit, appreciated Moloto’s predicament,
and wanted
to help him when he asked to be help.
16.5
On the other hand, the court misunderstood the
Applicant’s conduct to mean that he created an impression
that
he knew all the procedures for recruitment, when the Applicant
clearly testified that Moloto had told him that all he needed
to do
was to ask the questions on the interview, and record the answer,
which he did, and which can in no way constitute misconduct.
[17]
The court found that, Moloto had testified that he had counseled the
Applicant previously for similar offence and he further
testified
that the Applicant knew about the recruitment process. Further that,
this was not put to Mr Moloto when he testified
hence the
Commissioner could not have taken it into account.
17.1
On the evidence on record, the counseling happened on the 16
th
February 2010, and the misconduct alleged in this case had already
happened on 11
th
February 2010. Therefore, the counseling
could not be taken as a previous incident of misconduct.
[18]
In any case, there was no evidence that counseling was not for a
misconduct relating to conducting interviews.
[19]
On the evidence on record, there was no proof that the Applicant’s
conduct had or could have serious consequences for
the Respondent,
and therefore it was not a conduct an employee could be dismissed
for, in terms of the Respondent’s disciplinary
code. Another
court might find that this court ignored this crucial evidence.
[20]
The court erred in finding that there is no evidence before the
commissioner that the Applicant had written some of his answers
on
the pad, when there is such evidence. The same applies to his version
that he was not aware that both panelists had to sign
the
questionnaire.
20.1
On the other hand, this evidence was pleaded and not disputed, and
the court was bound to accept it, but failed to do so.
[21]
The court found the Applicant had to ensure that Mr Mkhonza, his
fellow panelist, co-signed the questionnaire wherever there
was
agreement on appointability of the candidate, and that therefore he
was guilty. However, the court failed to consider the fact
panelists
never agreed on anyone’s appointment, but the Applicant took
information about all those candidates he interviewed
to Moloto, as
the person whose responsibility it was to do the interview, to take
the process forward. Therefore, the court erred
in finding that there
was no fault with the Commissioner’s finding in this regard.
[22]
The court found that the commissioner was entitled to ignore personal
circumstances if they had not been raised, when the law
required him
to act inquisitorially, and asked for the information. Therefore, the
court erred in this regard.
[23]
The court failed to address the issue of the appropriateness of
dismissal, as a sanction, when evidence on record revealed
that, in
terms of the Respondent’s disciplinary code, a dismissal on the
charge preferred against the Applicant would only
be appropriate if
he had previously been given a final written warning, the Applicant
had not been given such a warning and it
was not even the
Respondent’s case that he had such a warning”.
The
test applicable in application for leave to appeal
[24]
The test in the application for leave to appeal was stated as follows
in the case of Van der Merwe v Du Plessis, (1999) 20
ILJ 1305 LC
paragraph 4 at 1306:
‘
Leave
to appeal is granted only if this Court is satisfied that another
Court might reasonably reach a conclusion different from
that
appealed against.”
[25]
In
National Union of Metal Workers of SA v Jumbo Products CC
[1996] ZASCA 87
;
1996
(4) SA 735
SCA at 742 A-B
the Supreme Court of Appeal described
the test as one based on whether there is a reasonable prospect that
a court of Appeal may
come to a different conclusion and held the
trial judge to have been wrong.
[26]
Having read the submissions from both parties and the judgment
herein, and having applied my mind thereon, and taking
the principles
outlined above into account, I am satisfied that another court may
not reasonably come to a different conclusion
than the one this court
reached.
[27]
In the premise I make the following order:-
a)
The
application for leave to appeal against the whole judgment is
dismissed with costs.
__________________
Shai
AJ
Judge
of the Labour Court of South Africa