About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2016
>>
[2016] ZALCD 16
|
|
NUMSA and Another v Metal And Engineering Industries Bargaining Council (MEIBC) and Others (D469/14) [2016] ZALCD 16 (8 August 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Case
no: D469/14
Not
Reportable
In
the matter between:
NUMSA
.............................................................................................................................
First
Applicant
SIPHO
MTHETWA
.....................................................................................................
Second
Applicant
And
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
(MEIBC)
.........................................................................
First
Respondent
FAAIZA
SYED
N.O
..................................................................................................
Second
Respondent
OKAPI
INDUSTRIES (PTY)
LIMITED
.................................................................
Third
Respondent
Heard:
10 February 2016
Delivered:
8 August 2016
JUDGMENT
WHITCHER
J
[1]
This is an opposed review application to set aside an arbitration
award in which the second respondent (“the commissioner”)
found that the dismissal of the second applicant (“Mthethwa”)
was substantively and procedurally fair.
[2]
Mthethwa was dismissed for refusing, even after being subpoenaed, to
give evidence at an arbitration hearing at the MEIBC in
which other
employees were charged with serious misconduct during a strike.
[3]
In reviews, the applicant must show that the conduct and consequent
final decision of the commissioner fell outside the band
of what
could be expected from a reasonable decision-maker. This test too is
trite. The applicants have failed to meet it.
[4]
Substantively, the commissioner appears justified, on the evidence
before her, in finding Mthethwa’s excuse for refusing
to
testify unconvincing, vague and not directly related to his own
safety. In the context of Mthethwa’s evidence and attitude
in
the proceedings as a whole, the commissioner was not unreasonable in
finding that reports of shots fired at another employee’s
house
did not constitute acceptable grounds for
his
refusal to
testify. Having listened to the evidence, she plainly formed the
impression that Mthethwa was more concerned with being
unpopular or
having fingers pointed at him than truly fearful that he may be
harmed should he testify.
[5]
If there were other factors besides the gunshots at Gumede’s
house that made Mthethwa fearful, the evidentiary burden
lay on him
to flesh these factors out in the evidence. The commissioner noted
that he did not do so, applying the evidentiary principles
correctly.
[6]
The parties concluded a pre-hearing agreement. Inconsistency in the
application of discipline was not raised as an issue in
dispute.
The commissioner therefore acted reasonably in not considering this
as an element of substantive unfairness at play
in the case.
Even if it were an issue, the evidence reveals distinguishing factors
between Mthethwa’s refusal and that
of the comparator employee.
This other employee, Gumede, against whom no action was taken for
also refusing to testify, mentioned
specific threatening actions;
shots fired at his house. However, since then, the evidence
showed that other employees freely
testified against those charged
with misconduct with nothing happening to the witnesses. As mentioned
earlier, an additional factor
weighed heavily against Mthethwa. This
was the commissioner’s sense, obtained with the benefit of
seeing him testify in person,
that he disingenuously offered up the
story of feeling afraid.
[7]
The commissioner made the self-evident finding that Mthethwa’s
refusal to testify against other employees constituted
the sort of
disloyalty that destroys an employment relationship. She did
not impose upon Mthethwa the duty to elevate his
loyalty to the
company above his genuine fears for his safety. She found, on the
probabilities, that those fears were exaggerated
and that the
dominant reason behind the Mthethwa’s refusal to testify at the
MEIBC was solidarity with the other workers
and a reluctance to be
unpopular. These reasons, unfortunately for him, do not in employment
law trump his duty to obey a lawful
instruction.
[8]
On procedure, the commissioner correctly found that, as far as
representation at his hearing was concerned, Mthethwa was afforded
the rights set out in the Code of Good Practice on Dismissal. She did
not fail to consider evidence that other employees were in
the past
permitted representation by external union officials. This indulgence
does not create the right the First Applicant contends
it does.
Order
[9]
In the premises, the following order is made:
1.
The review application is dismissed.
2.
There is no order as to costs.
Whitcher J
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the applicants: S Montshiona from NUMSA
For
the third respondent: Norton Rose Fulbright