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[2016] ZALCJHB 465
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SACWU obo Kagisho and Others v NBCRFLI and Others (JR136/15) [2016] ZALCJHB 465 (22 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no JR 136/15
In
the matter between
SACWU
obo KAGISHO & 15
OTHERS
Applicant
And
NBCRFLI
First
Respondent
PIETER
GREYLING
N.O.
Second Respondent
GRAINOVATION
Third Respondent
Heard:
17 February 2016
Delivered:
22 February 2016
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the respondent, to whom I shall refer as the commissioner.
In his award, issued on 17 December 2014, the commissioner found that
the dismissal of the individual applicants (the employees)
by the
third responde
nt (the employer) was substantively and
procedurally fair.
[2]
The relevant factual background is recorded in the award, and I do
not intend to repeat the facts here. It is sufficient to
say that the
employees were dismissed for refusing to obey an instruction that
they should work overtime on the weekends of 5-6
and 12-13 July 2014,
for participating in an illegal work stoppage on the same dates and
for leaving company trucks unattended
in an unauthorized parking area
without permission on 4 and 11 July respectively. In essence, the
union’s case at the proceedings
under review was that the
employees were under no contractual obligation to work overtime and
that any instruction that they do
so was consequently unlawful. The
union also attacked the procedural fairness of the dismissal.
[3]
The founding affidavit is not a model of clarity, and it is difficult
to discern precisely the applicant’s grounds for
review. The
affidavit comprises what is termed an ‘attack on the award’
in the form of a paragraph by paragraph response
to the award, much
along the lines of an answering affidavit. Under the heading ‘grounds
for review’ one finds the
following: dishonest, failure to have
regard of material facts, bad legal interpretation, avoided the main
collective agreement
purposively, supported invented terminology,
disown himself the jurisdiction, became spokesperson of respondent,
denying our claim
for due monies, and converted contracts into
all-purpose documents (sic). None of these grounds address the
reasonableness threshold
which forms the basis of an application such
as the present, but I will afford the applicant a generous
interpretation of the founding
affidavit in so far as the grounds for
review are concerned.
[4]
The applicant has also filed a document referred to as ‘amending
the founding affidavit’. Its status and purpose
is not entirely
clear, but the deponent, Mr. Mogase, appears to seek to ‘amend’
certain facts relating to the events
that preceded the weekends on
which the employees did not work. The function of a review court is
to determine the reasonableness
of the outcome of the proceedings
under review, having regard to the evidence that served before the
commissioner. The consequence
is that the court is bound by the
record of the arbitration proceedings, and yet another version of the
facts during the course
of a review is not ordinarily relevant to a
determination of the reasonableness of the commissioner’s
award.
[5]
It also warrants mention that the notice of motion contains a series
of prayers which are simply not competent in an application
such as
the present. I did not understand Mogase, the union official who
appeared on behalf of the applicant, to dispute that they
should be
disregarded and that what the applicant sought was a review and
setting aside of the award and an order substituting
the
commissioner’s ruling for a finding that the dismissal of the
employees was unfair and ordering their reinstatement.
[6]
This court is entitled to interfere with an award made by a
commissioner if and only if the commissioner misconceived the nature
of the enquiry (and thus denied the parties a fair hearing) or
committed a reviewable irregularity which had the consequence of
an
unreasonable result. The applicant appears to contend for the latter,
on the basis reflected above. However, the failure by
an arbitrator
to attach particular weight to evidence or attachment of weight to
the relevant evidence and the like is not in itself
a basis for
review; the resultant decision must fall outside of a band of
decisions to which reasonable decision-makers could come
on the same
material (see
Herholdt v Nedbank Ltd
[2013] 11 BLLR 1074
(SCA)).
[7]
The Labour Appeal Court recently affirmed that while the failure of
an arbitrator to apply his or her mind to issues which are
material
to the determination of a case will usually be held to be an
irregularity, before the irregularity will result in the
setting
aside of the award, it must in addition reveal a misconception of the
true enquiry or result in an unreasonable outcome
(see
Head of
Dept. of Education v Mofokeng
[2015] 1 BLLR 50
(LAC), at
paragraph 30). In other words, whether a decision is unreasonable in
its result ultimately requires this court to consider
whether apart
from the flawed reasons of or any irregularity by the arbitrator, the
result could still be reasonably reached in
the light of the issues
and the evidence.
[8]
It bears reiterating that the above principles distinguish a right of
appeal from a right of review. This appears to be lost
on the
applicant in the present case which by and large attempts to re-argue
the case before the commissioner on its merits. This
court is not
entitled to set aside a commissioner’s decision simply because
the court would have come to a different conclusion
on the same
facts. This court is not entitled to intervene if the commissioner
makes mistakes of law or mistakes of fact. The commissioner
is
allowed to be wrong. All that the commissioner may not do is make a
decision that falls outside of the band of decisions to
which
reasonable decision-makers could come on the available material. As
the Labour Appeal Court has noted on more than one occasion,
the
threshold to be met by an applicant in a review application is set
high and it is not often that this court will interfere.
[9]
At the hearing of the present application, the applicant’s
complaint crystallised into a single issue – that the
commissioner committed a reviewable irregularity by attaching
insufficient weight to evidence concerning the employees’
obligation (or rather, the lack of obligation) to work overtime,
which in turn led him to conclude (erroneously) that the basis
of the
instruction given to the employees was lawful.
[10]
The commissioner’s award records that the issue to be
determined is whether the dismissal of the employees was
substantively
and procedurally fair. He further recorded that it was
common cause that the employees had refused to work on the weekends
in question,
and that that refusal emanated from a view that the
instruction to work on the days concerned was unlawful and that the
employees
were therefore entitled to refuse to attend work.
[11]
Insofar as procedural fairness is concerned, the only issue that the
commissioner was called upon to decide was whether the
third
respondent’s refusal to grant a postponement of the
disciplinary proceedings on 4 August 2014 rendered the proceedings
unfair.
[12]
Two witnesses gave evidence for the respondent. Their evidence is
summarised in the award. The only witness to give evidence
on behalf
of the employees was Mogase, whose evidence comprises by and large
his opinion that there was no agreement between the
parties to work
overtime and that in the absence of any agreement to do so, the
employees were not obliged to work overtime and
that the instruction
given to them was accordingly and lawful. He is also provided an
explanation for his failure to attend to
the disciplinary hearing.
[13]
The commissioner’s reasoning can be discerned from the
following paragraphs:
21.
It is the applicant’s argument that in terms of the
respondent’s standard employment agreement, the agreement
provides
for a system of commission that is to be paid should a
driver reach a specific target in a month. The contract itself does
not
make provision for working overtime. It is common cause that the
commission system was abandoned at the request drivers and replaced
by an overtime system. In terms thereof applicants would be paid
overtime as provided for in the bargaining council collective
agreement. It is also common cause that the system was implemented at
the beginning of June 2014 and that applicants received overtime
payment at the end of June 2014. It is also apparent from the pay
slips of all the applicants as contained in the bundle of documents
that all the applicant received payment for overtime worked.
22.
It is the respondent’s argument that based on clause for the
applicant agreed to the
working of overtime. Clause 4 reads as
follows: “You will be expected to conform to our truck
transport hours and to work
at such additional times as may be
necessary for the effective performance of your duties”. What
is further to be noted is
that both parties were in agreement that
the commission system which allowed applicants to be paid commission
for earnings received
in general forced applicants to work in
non-standard hours. The overtime system was also accepted as a demand
from the drivers.
It is also common cause that the new system was
introduced in June 2014 and that the applicant worked overtime for
the month and
was paid accordingly.
23.
It is therefore evident that the applicants in their own minds had no
objection to working
overtime. If overtime was not part of their
contract, why did the applicant’s work overtime immediately
after the commission
scheme was abolished? It would have been a
different matter the applicant’s refusal to work overtime was
initiated in the
beginning of June.
24.
It is also apparent that the applicant union was involved in
negotiations and discussions
regarding the issue of the commission
systems replacement with the overtime system. During this proceeding
the union did not produce
any document or notification or other
evidence of its members objection to the overtime scheme.
25.
In the last instance I must also disagree with the applicants in
their argument that the
contract of employment does not provide for
overtime work. It is clear from clause 4 that it provided for
additional hours. Truck
transport hours can only mean one thing. It
also provides for “additional times” as may be necessary
for the effective
performance of their duties.
26.
In view of the above must conclude that an agreement to work overtime
existed between the
parties. An instruction to work on the days are
set out in para 3 above would therefore not constitute an illegal
instruction.
[14]
In regard to procedural fairness, the commissioner went on to hold
that it was common cause that the disciplinary proceedings
had been
postponed three times before 4 August 2014. The commissioner noted
that in some of the instances the union had made certain
demands
regarding representation and the manner in which the hearing was to
be conducted, to which the third respondent had agreed.
A notice of
set down had been sent to the union on 31 July 2014 by email and by
fax. The commissioner noted Mogase’s explanation
that his
tablet was not functioning properly; however, he observed that no
explanation had been provided why nobody had become
aware of the
notification up until 2 August 2014. Further, Mogase had been advised
when he was telephonically contacted on the
day that the proceedings
would be held in abeyance for a further 90 minutes. At this stage,
Mogase was 45 km from the venue but
offered no explanation as to why
he did not attend the proceedings to put his case or apply for a
postponement. On the probabilities,
the commission concluded that the
applicants had been aware of the proceedings and deliberately decided
not to attend.
[15]
The applicant’s case rested on the proposition that the third
respondent had violated sections 10 and 29 of the BCEA,
and that the
instructions to work overtime were therefore unlawful. Mogase chose
not to call any of the employees, but testified
himself. As I have
indicated, his evidence largely comprises his opinion of the
lawfulness or otherwise of the instructions given
to the employees is
captured by the following passage:
APPLICANT
REPRESENTATIVE: Then let me count to issues that relates to the
evidence of legality and validity of the instructions
that were
issues to an applicants on those particular days, Mr Commissioner
this instructions were unlawful because they were based
on the
employment contract that were no longer in operation, it is well say
that here and it is a common course that from 2 June
2014 the
operations at work place altered altogether, there was no more
commissions no more even if they call it transport hours,
the
applicant were going to be paid according to the specifications of
the basic condition of employment and the main collective
agreement,
I have now attached there as an annexure M to our document and
that shows how the overtime is should be operated
in this particular
council or industry, now the question the question is does the
respondents have any document before us…
[16]
What followed was the submission of heads of argument in which the
applicant states the following:
24.
Applicants submits that the instructions of the respondents were
unlawful and unreasonable and even provocative
for the following
reasons;
24.1
From 2 June 2014 applicants entered into an agreement with the
respondents, an agreement to work for overtime pay system and
exit
from the one we termed kilometre pay system. The pay slips of June
2014 stands as witness to this effect.
24.2
The most important fact here is that the employment contract that
existed between parties was rendered null and void therefore
invalid
by transition from the kilometre pay system to the overtime pay
system. I must emphasise that the employment contract of
applicants
was existing solely because of the kilometre pay system. Now once the
kilometre pay system is revoked automatically
the employment
contracts are avoided and cease to exist.
24.3
The overtime pay system kicks in the normal working hours (45 per
week) and the payment of overtime after the completion of
nine (9)
hours in a weekday or overtime and weekend after completion of forty
five (45) hours after(5) they week. I must estate
this dispute does
not relate to weekday overtime, it relates directly to the weekend
overtime
24.4
The respondents wanted the applicants to remain by the tracks on
weekends and said the subsistence allowance was enough for
their
payment. In this way even if the applicants worked on weekends, still
the respondents would say the subsistence allowances
paid to them
therefore they cannot claim the overtime.
24.5
The applicants never refuse to work on weekends. Applicants wanted to
be paid overtime for been on duty on the weekends consistent
with the
MCA (sic).
[17]
Clearly, an agreed change to move from what was referred to as the
‘commission’ scheme to one in terms of which
overtime
would be paid at the prescribed rights did not result in the
employee’s contract becoming null and void or otherwise
invalid. The evidence before the commissioner clearly disclosed an
agreement that the employees would be paid overtime rates in
accordance with the provisions of the bargaining council agreement.
On the evidence, this is clearly what occurred during the month
of
June 2014, when the third respondent agreed to a demand to that
effect. The evidence also disclosed, as the commissioner observed,
that the employees worked overtime without objection during the
course of that month and it was common cause that the employees
received overtime payments at the end of June 2014. For the
commissioner, this constituted an agreement to work overtime for the
purposes of s 10 of the BCEA. He found further evidence of agreement
in clause 4 of the standard contract of employment signed
by the
employees. In the absence of any evidence to the contrary, the
commissioner’s conclusion that there was an agreement
to work
overtime cannot be faulted. On the evidence served before the
commissioner, the new system of remuneration for overtime
did not
extinguish or amend any pre-existing obligation to work overtime.
It follows that the commissioner’s
decision that an
instruction to work overtime on relevant weekends did not constitute
an illegal instruction is not unreasonable.
For this reason, the
application stands to be dismissed.
[18]
While it is not strictly relevant to the determination of the
commissioner’s decision, there does not appear to be any
explanation on record as to why the applicant did not refer any
dispute concerning the application and interpretation of the
bargaining
council agreement or otherwise seek to dispute the
implementation of the overtime system. The employees, clearly acting
on the
misguided advice of Mogase, elected instead to refuse to work.
As I have indicated, that advice was misguided and regrettably, the
employees have paid the price.
[19]
In so far as the commissioner’s findings on procedural fairness
are concerned, the commissioners finding is reasoned
and rational and
cannot be said to be so unreasonable that no reasonable
decision-maker could not find, as the commissioner did,
that given
all of the circumstances and the numerous attempts made by the third
respondent to convene a disciplinary hearing and
the obstructive
conduct displayed by Mogase, the hearing was fair. It should be
recalled that the Code of Good Practice requires
only that an
employee be afforded the opportunity to state his or her case. This
is what the third respondent did. If the employees
or the union
frustrated that effort, they cannot now be heard to complain that the
third respondent’s conduct was unfair.
[20]
In so far as costs are concerned, the third respondent submits that
there is a proper basis on which this court should exercise
its
discretion to award costs against the applicant. Section 162 of the
LRA affords the score to broad discretion to make orders
for costs
according to the requirements of the law and fairness. This court has
also previously held that the right of representation
extended to
union officials is one that must be exercised with the same degree of
competence and diligence that applies to legal
practitioners. In the
present instance, the applicant has failed to comply with the
provisions of Rule 7A. Further, the papers
contain a number of
spurious and derogatory remarks made particularly against the
commissioner, and are burdened with irrelevant
annexures. The heads
of argument fail properly to identify the real issues in dispute and
address them with any degree of pescision.
For these reasons, in my
view, the applicant should be ordered to pay the costs of the
proceedings.
I
make the following order:
1.
The
application is dismissed, with costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the Applicant: Adv. C Roodt, instructed by AM Spies Attorneys
For
the Respondent: Union Official