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[2015] ZALCPE 47
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South African Transport and Allied Workers Union obo Fumba and Others v Commission for Conciliation, Mediation and Arbitration and Others (P348/11) [2015] ZALCPE 47 (5 June 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: P 348/11
In the matter between:
SOUTH AFRICAN
TRANSPORT AND ALLIED
WORKERS UNION obo
FUMBA &
OTHERS
Applicant
and
COMMISSION FOR
CONCILIATION MEDIATION
AND
ARBITRATION
First Respondent
MANGISI MRWEBI
N.O
Second Respondent
GREYSTONE CARGO
SYSTEMS (PTY) LTD
Third Respondent
Heard:
21 May 2014
Delivered:
5 June 2015
Summary:
An arbitration award of a commissioner who determined the fairness of
a dismissal without taking into
account that it was a dismissal for
participation in an unprotected strike is susceptible to review if
the omission resulted in
the commissioner taking an unreasonable
decision.
JUDGMENT
LALLIE J
Introduction
[1] This is an
application to review and set aside an arbitration award of the
second respondent (“the Commissioner”)
in which he found
the individual applicants “substantively and procedurally
dismissed”. It is clear from the reading
of the award that the
Commissioner meant that the dismissal was substantively and
procedurally fair. The application is opposed
by the third
respondent.
Factual background
[2]
The individual applicants were employees of the respondent, a labour
broker, and performed their duties at the East London Harbour.
Their
main duty was to load and offload ships. On 11 November 2010, 32
employees including the individual applicants were at the
East London
harbour (“the harbour”). Eighteen did not have the
necessary authority and were not wearing protective
clothing while 14
were authorised to be there as they were scheduled to perform their
duties. They demanded to speak to the Human
Resources Director (“the
director”) notwithstanding that a meeting had been arranged for
them to meet the Director
in connection with their grievances on 28
and 29 November 2010. The employees who were at the harbour without
authority were ordered
to leave. They left and after an exchange of
correspondence between the applicant trade union and the third
respondent, the individual
applicants returned to work on 23 November
2011. They were subjected to a disciplinary enquiry and dismissed for
being absent from
work without leave (“ AWOL”) and for
breaching safety and security by having access to the East London
Harbour Port
without the necessary authority and protective clothing
(“PPE”).
The award
[3] The Commissioner
recorded that ten of the original individual applicants had withdrawn
the dispute against the third respondent.
He further dismissed the
cases of individual applicants who were not in attendance on the
first day of the arbitration proceedings.
He accepted the third
respondent’s version that the individual applicants were not
dismissed on 11 November 2010 but sent
to the offices of the
applicant trade union in an attempt to defuse the tension which
prevailed at the workplace. On 15 November
2010, the third respondent
addressed a letter to SATAWU explaining that the individual
applicants were not dismissed. He rejected
the applicant’s
version that the individual applicants were dismissed on 15 November
2010. He further rejected their evidence
that when they reported for
duty on 15 November 2010 they were turned away and told that they had
been dismissed as he found their
evidence unreliable. He found that
the applicants’ version was not supported by evidence, their
witnesses contradicted themselves,
were evasive and could not
remember dates which the Commissioner considered vital in determining
whether they had committed the
misconduct which led to their
dismissal. They were unable to explain SATAWU’s failure to
reply promptly to the third respondent’s
letter of 15 November
2010. He concluded that the individual applicants were AWOL as they
returned to the workplace on or after
23 November 2010. The dismissal
of the individual applicants was found procedurally fair on the basis
that they had themselves
to blame for not seizing the opportunity to
present their version before the chairperson of the disciplinary
enquiry. The third
respondent held their disciplinary hearings the
best way it could in the circumstances. He concluded that the
individual applicants’
dismissal was both substantively and
procedurally fair.
Grounds for review
[4] The applicant sought
to rely on a number of reasons to have the arbitration award reviewed
and set aside. However, when the
matter was argued, the applicant
relied only on two grounds. Firstly, the Commissioner’s ruling
dismissing the referrals
of the individual applicants who were not in
attendance on the first day of the arbitration hearing had no basis.
Secondly, the
Commissioner not only misconceived the nature of the
dispute before him but failed to deal with the real dispute, which
was an
unprotected strike. The third respondent submitted that the
ruling dismissing the referrals of the applicants who were absent
from
the arbitration does not form part of the matter at hand. It
suggested that the applicant should apply for its rescission. The
third respondent’s approach is not supported by the award as in
paragraph three thereof, the Commissioner stated that he made
the
dismissal ruling. The circumstances in which the dismissal
ruling was made fall outside the purview of section 144 of
the Labour
Relations Act 66 of 1995 (“the LRA”) in that the ruling
was not made in the absence of the applicant, no
ambiguity, obvious
error or mistake common to the parties was pointed out by the third
respondent. Section 200 of the LRA is clear,
it grants trade unions
the right to act on behalf of its members in any dispute to which its
members are a party. The Commissioner’s
dismissal ruling denied
SATAWU the right to assert the authority it is granted by legislation
to represent its members. It is also
unreasonable in that its basis
is invalid.
[5] The applicant
submitted that the Commissioner had an obligation to lend a helping
hand to both parties as they were not legally
represented. He failed
to appreciate that the real dispute before him was a dismissal for
participating in an unprotected strike,
when in the opening statement
the third respondent intimated that there was a demand followed by
refusal to work until the demand
was met. As a result of the omission
the Commissioner failed to apply the relevant legal principles and
reached an unreasonable
decision. The third respondent denied that
the award was unreasonable and argued that the Commissioner’s
function was to
determine the merits of the arbitration on the
evidence before him. He could not be expected to consider evidence
which was not
placed before him. It denied that the applicant
tendered evidence to the effect that the individual applicants were
on strike.
There was no evidence that the applicant made a demand.
The evidence before the Commissioner was that the individual
applicants
were told to attend to work on 15 November 2011 but they
failed.
[6] In
Herholdt
v Nedbank Ltd
[1]
it was held that a decision-maker commits a gross irregularity within
the meaning of section 145 (2) (a) (ii) of the LRA when he
or she has
undertaken the wrong enquiry or has undertaken the enquiry in the
wrong manner. In
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[2]
it was held that by approaching a dismissal for misconduct as one of
poor work performance, the Commissioner committed a gross
irregularity in the conduct of the proceedings. The conclusion
arrived at was influenced by the wrong categorisation of the case
against the third respondent. For the award to be reviewed and set
aside the incorrect categorisation must lead the arbitrator
to arrive
at a decision which no reasonable decision-maker could reach on facts
before the arbitrator.
[7] The Commissioner had
to base his decision on the facts before him. Pistorius testified
that on 11 November 2010, the applicants
made a demand to speak to
the HR Director. He phoned the HR Director and conveyed their demand
but it was not met as the HR Director
insisted that he would meet
them on 28 or 29 November as he had told them at an earlier date.
When their demand was not met, the
applicants withdrew their labour
by downing their tools. A strike is defined in section 213 of the LRA
as ‘…the partial
or complete concerted refusal to work,
or the retardation of work, by persons who are or have been employed
by the same employer
or by different employers, for the purpose of
remedying a grievance or resolving a dispute in respect of any matter
of mutual interest
between employer and employee, and every reference
to ‘
work’
in this definition includes overtime
work, whether it is voluntary or compulsory’. The Commissioner
was required to identify
the dispute he had to arbitrate based on the
facts before him. Facts that are common cause place the applicants’
conduct
within the definition of an unprotected strike action in that
it failed to comply with the provisions of section 64 of the LRA.
Pistorius knew that the applicants had grievances which were brought
to the attention of management which led to the promise that
the
Director would meet with them on 28 or 29 November. As Pistorius was
not privy to the discussions he was in no position to
disclose the
content thereof. It was therefore not for him to state that the
applicants made no demands. The union informed Pistorius
that the
applicants were on strike as it was aware of the demands which had
been made. It was not for Pistorius to decide whether
the applicants
were on strike on not. The test to determine whether the applicants
were on strike is objective. It is whether their
conduct falls within
the meaning of “strike” as defined in the LRA. The
concession by Pistorius that the applicants
downed their tools when
their demand for a meeting with the direct was not met is sufficient
to place the applicant’s conduct
in the purview of strike
action. Had the Commissioner identified the dispute before him
correctly, he would, in determining the
fairness of the applicants’
dismissal, have enquired into whether the third respondent had
complied with provisions of item
6 of schedule 8 of the LRA which
lays down the procedure to be followed by an employer faced with an
unprotected strike. The procedure
required the third respondent to
have done the following:
‘
Prior to
dismissal the employer should, at the earliest opportunity, contact a
trade union official to discuss the course of action
it intends to
adopt. The employer should issue an ultimatum in clear and
unambiguous terms that should state what is required of
the employees
and what sanction will be imposed if they do not comply with the
ultimatum. The employees should be allowed sufficient
time to reflect
on the ultimatum and respond to it, either by complying with it or
rejecting it. If the employer cannot reasonably
be expected to extend
these steps to the employees in question, the employer may dispense
with them’.
None of the required
action was taken by the third respondent. Its version is that the
applicants were referred to the union office
in order to defuse
tension.
[8] In
Herholdt
(supra)
it was held that when the Commissioner has misconstrued
the nature of the dispute before him or her or has undertaken the
incorrect
enquiry the resultant award becomes reviewable. This
principle was relied on in
Gold Fields (supra)
when the court
reviewed and set aside an arbitration award on the grounds that the
Commissioner had undertaken the incorrect enquiry
by treating the
unfair dismissal dispute before him as a dismissal for poor work
performance when it was a dismissal for misconduct.
The Commissioner
misconstrued the nature of the dispute before him and undertook an
incorrect enquiry. His error led him to reach
an unreasonable
decision.
[9] In the premises, the
following order is made:
9.1
The arbitration award issued by the second respondent on 13 June 2011
is reviewed and set
aside.
9.2
The matter is remitted to the first respondent to be arbitrated
de
novo
by a Commissioner other than the second respondent.
____________________________
Lallie J
Judge of the Labour Court
of South Africa
APPEARANCES
For
the Applicant:
Mr Niehause of Niehause Attorneys
For
the Third Respondent:
Mr Van Rensburg of
Van Rensburg Attorneys
[1]
[2013] 11 BLLR
1074 (SCA)
[2]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC)