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[2016] ZALCJHB 62
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NUM obo Mogashoa v Commission for Conciliation, Mediation and Arbitration and Others (JR2630/12) [2016] ZALCJHB 62 (23 February 2016)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 2630/12
In
the matter between:
NUM obo MOGASHOA
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION AND ARBITRATION
First Respondent
MACGREGOR, R
(
N.O.
)
Second
Respondent
RAND REFINERY
LTD
Third Respondent
Heard
:
18 February 2016
Delivered
:
23 February 2016
Summary:
(Review – dismissal – outcome in award
sustainable on the evidence before the arbitrator - dismissed)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is a review application to set aside
an arbitrator’s finding that the dismissal of the applicant was
substantively and
procedurally fair. On his own account, the
applicant claims he was dismissed for two charges, namely:
1.1
Gross negligence or dishonest conduct in
that you must have been aware or noticed that 17 kg of gold was
hidden in the workshop
yet you failed in any way to report this to
management or to take any action to remedy the situation.
1.2
Dishonest conduct in that you must have
been reasonably aware and/or were involved in attempted theft of gold
that was hidden in
weights that you assisted to weld closed.
[2]
The disciplinary action came about when
management at the Gold refinery received a tipoff that gold had been
concealed inside weights
that were supposed to be scrapped. It was
common cause that the boilermaker and the applicant, his assistant,
had done welding
work on the weights in question on a Sunday for
which they had been paid overtime. Thereafter the weights had been
moved to the
instrument technician’s workplace en route to
being scrapped. The weights were opened where they were found in the
technician’s
workshop and approximately 8 kg of gold was found
in compartments in the weights. The only employees engaged in welding
at the
refinery was the applicant and the boilermaker, and it was a
rule at the refinery that no equipment at the plant could have closed
compartments. The weights had been modified and metal plates had been
welded over the handles and there was no inspection hole
provided.
The applicant admitted to grinding the welds on the weights and
painting them, but denied any knowledge of how the gold
came to be
placed inside them. Following the discovery of the gold in the
tampered weights, management retraced the passage of
the weights
through the plant and to the technicians’ workshop and a search
was conducted in the boilermaker’s workshop,
which led to the
discovery of a hessian bag containing another 17 kg of gold concealed
by a large cupboard.
[3]
The arbitrator did not expressly state
whether he found the applicant guilty of both charges. However, it is
clear in the course
of his analysis of the evidence that he was
satisfied that given the size of the workshop and the position of the
cupboard the
applicant could not have been unaware of the bag
containing the gold and failed to report it, which is the same as a
finding of
guilt on the first charge. Secondly, the arbitrator made
an adverse credibility finding against the applicant on the basis
that
he concluded that the photograph of the cupboard he had
presented at the arbitration was not the same as the cupboard seen at
the
in loco
inspection in the boilermaker’s workshop, and that the
photograph accordingly amounted to a misrepresentation which affected
the credibility of his version. Thirdly he found that it was unlikely
that anyone would have entered the workshop without the knowledge
of
the applicant and the boilermaker and that they would both have been
focused on the work at hand on the Sunday in question.
He found that
in all probability, the gold had been placed in the compartments in
the boilermaker’s workshop and that the
applicant must at least
have been aware of the gold been placed in the compartments.
[4]
During the course of the arbitration, a
controversy arose over the dimensions of the cupboard and both
parties submitted photographs
of the object in question. The
arbitrator then conducted an
in loco
inspection of the boilermaker’s workshop and the parties were
asked to comment on their observations when the arbitration
resumed.
One of the complaints against the arbitrator is that he took account
of observations made by a company representative
who conducted the
in
loco
inspection, without that person
giving evidence at the arbitration or being sworn in. Undoubtedly,
the arbitrator ought not to
have paid attention to his statements
during the
in loco
inspection in the absence of him confirming the same in the
arbitration proceedings itself, especially if the employee did not
have an opportunity to test those statements. One pillar of the
applicant’s review concerned the conflicting evidence of
whether, as the person who was responsible for cleaning the
boilermaker’s workshop he would have necessarily been aware of
the bag of gold concealed by the cupboard.
[5]
The
test for review on the basis of errors made by an arbitrator in the
evaluation of evidence or in the conduct of proceedings
has been
formulated in a number of ways in recent decisions of the LAC. In
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
[1]
[6]
…
the court held:
“
[21]
Where the arbitrator fails to have regard to the material facts it is
likely that he or she will fail to arrive at a reasonable
decision.
Where
the arbitrator fails to follow proper process he or she may produce
an unreasonable outcome
(see
Minister
of Health & another NO v New Clicks SA (Pty) Ltd & others
2006 (2) SA 311
(CC)).
But
again, this is considered on the totality of the evidence not on a
fragmented, piecemeal analysis. As soon as it is done in
a piecemeal
fashion, the evaluation of the decision arrived at by the arbitrator
assumes the form of an appeal. A fragmented analysis
rather than a
broad based evaluation of the totality of the evidence defeats review
as a process
.
It follows that the argument that the failure to have regard to
material facts
may
potentially
result in a wrong decision has no place in review applications.
Failure to have regard to material facts must actually defeat the
constitutional imperative that the award must be rational and
reasonable — there is no room for conjecture and guesswork.”
[2]
(emphasis
added)
[7]
Further,
in
Head
of the Department of Education v Mofokeng and others
[3]
the court emphasised the extent an arbitrator’s approach must
be wrong to upset an award on review:
“
Lapses
in lawfulness, latent or patent irregularities and instances of
dialectical unreasonableness should be of such an order (singularly
or cumulatively) as to result in a misconceived inquiry or a decision
which no reasonable decision-maker could reach on all the
material
that was before him or her.”
[4]
[8]
On
the issue of the weights to be attached to the arbitrator’s own
reasoning in evaluating the reasonableness of an award,
the SCA in
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[5]
had
the following to say:
“
That
test involves the reviewing court examining the merits of the case
'in the round' by determining whether, in the light of the
issue
raised by the dispute under arbitration, the outcome reached by the
arbitrator was not one that could reasonably be reached
on the
evidence and other material properly before the arbitrator. On
this approach
the
reasoning of the arbitrator assumes less importance
than it does on the SCA test, where a flaw in the reasons results in
the award being set aside.
The
reasons are still considered in order to see how the arbitrator
reached the result
.
That assists the court to determine whether that result can
reasonably be reached by that route.
If
not
,
however,
the court must still consider whether, apart from those reasons, the
result is one a reasonable decision maker could reach in the
light of
the issues and the evidence
.”
[6]
(emphasis
added)
[9]
Much of the substantial criticism directed
at the award concerns the arbitrator’s handling of the
in
loco
inspection and the fact that he
placed reliance on statements made by the management representative
who never testified subsequently
in the hearing. I agree that to the
extent the arbitrator took account of statements made by that
individual in the course of the
in loco
inspection without them being corroborated or confirmed in evidence
by others on the record, amounted to a procedural irregularity
which
might have prejudiced the applicant because he was unable to
cross-examine that individual.
[10]
Nevertheless, even if I discount the
arbitrator’s findings based on the
in
loco
inspection, particularly those
relating to the concealment of the bag containing gold, there was
ample evidence to reasonably support
a conclusion that it would have
been improbable that the gold would have been placed in the weights
anywhere else other than in
the boilermaker’s workshop and that
the applicant could not have been aware of the gold been placed in
the illicit compartments
created on the weights. Even though the gold
in the weights was only discovered when they had been transferred to
the technician’s
workshop, it was also not unreasonable to draw
an inference that it was unlikely that the weights would have been
cut and re-welded
after the work done when the applicant and the
boilermaker were on duty on the Sunday in question. Even if there
might have been
other legitimate boiler-making work to perform in the
boilermaker’s workshop on a Sunday at overtime rates, there was
no
plausible explanation offered as to why welding work on
weights, which were due to be scrapped, would have warranted such
priority. The applicant himself agreed that Sunday work was not a
common occurrence.
[11]
In the circumstances, I am satisfied that
when the evidence is considered in its totality, it was more than
plausible for the arbitrator
to arrive at the conclusion that the
applicant was at the very least probably aware of the concealment of
the gold in the weights
which most probably occurred when they were
working on the weights that Sunday. Even if he was merely a
bystander, his silence
in not reporting the concealment of the gold
made him complicit with the boilermaker who was dismissed arising
from the incident.
The strong circumstantial evidence against him was
such that he needed to provide a plausible explanation why,
notwithstanding
that evidence, he was not a participant or would not
have been aware of what was going on despite working together with
the boiler-maker
that day in the small workshop.
[12]
Plainly, the applicant’s complicity
in subterfuge of this sort is incompatible with the trust required in
an employment relationship
especially in an environment dealing with
a valuable commodity. Consequently, it cannot be said his dismissal
was substantively
unfair.
[13]
There
was no serious challenge on the pleadings in the review to the
finding of procedural fairness raised, so that finding remains
effectively unchallenged. I also do not consider it necessary to deal
with grounds of review raised in argument for the first time.
[7]
Order
[14]
The review application is dismissed.
[15]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
B
Matyolo instructed by K D Maimane Inc.
THIRD
RESPONDENT:
R
J C Orton of Snyman Attorneys
[1]
(2014)
35
ILJ
943
(LAC)
[2]
At 950.
[3]
[2015]
1 BLLR 50 (LAC)
[4]
At
60, para [32].
[5]
(2013)
34
ILJ
2795 (SCA)
[6]
At 2802, para [12].
[7]
In
Commercial
Workers Union Of Sa v Tao Ying Metal Industries & Others (2008)
29
ILJ
2461 (CC)
at
2483, par [67], the Constitutional court stated unequivocally:
“
A
party who seeks to review an arbitral award is bound by the grounds
contained in the review application.”
Also
in
Comtech (Pty) Ltd v Moloney N
O
and others
(DA12/05)
[2007]
ZALAC 35
(21 December 2007
)
,
the LAC emphasised the importance of setting out the factual basis
of grounds of review in the founding papers:
“
[15]
The difficulty with the appellant’s case in this regard
relates
to whether the founding affidavit contains the factual
grounds required by Rule 7A(2)(c) of the Rules of the Labour Court.
Rule
7A(2)(c) of the Rules of the Labour Court requires a party who
applies for a review, such as the appellant in this matter, to
deliver a notice of motion that must be supported by “an
affidavit setting out the factual and legal grounds upon which
the
applicant relies to have the decision or proceedings corrected or
set aside.” Rule 7A requires the notice of motion
to call
upon, in this case, the commissioner “to show cause why the
decision or proceeding should not be reviewed and corrected
or set
aside.”
[16]
In my view, the contents of par 15 of the founding affidavit relate
to conclusions of law. There is nothing either in par 15 or anywhere
else in the founding affidavit which sets out the factual
grounds
upon which the appellant sought to base its legal grounds of review.
In par 15 of the founding affidavit the deponent
said that the
commissioner erred in his award in that he “failed and or
neglected and/or refused to apply his mind to the
evidence led at
the arbitration proceedings” but did not motivate this bald
allegation by reference either to the evidence
or the award.”
See
also
Bafokeng Rasimone Platinum Mine (Pty) Ltd v
Commission for Conciliation, Mediation & Arbitration &
others
(2015) 36
ILJ
3045 (LC) at 3048-9, where I alluded
to the importance of the founding papers containing the grounds of
review, viz:
“
[5]
Pleadings are intended, amongst other things, to identify the nature
and parameters of a dispute. Care must be taken at the
time of
drafting to ensure that the full ambit of a party's case is
canvassed. In the case of a review application an applicant
has the
added advantage that a weak founding affidavit can be completely
replaced or augmented by a supplementary affidavit.
It is at that
point of the applicant's preparation of the application that it must
focus its mind on the merits of its case.
It should not regard
the supplementary affidavit as merely a preliminary exploration of
issues to be more fully developed when
heads of argument are
prepared.”