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[2017] ZALCJHB 41
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National Union of Mineworkers obo Dlamini v Commission for Conciliation, Mediation and Arbitration and Others (JR2574/10) [2017] ZALCJHB 41 (7 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no:
JR
2574/10
In the
matter between:
NATIONAL
UNION OF MINEWORKERS
obo
VICTOR
DLAMINI
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
HAWYES N.O.
Second
Respondent
EXXARO
COAL MPUMALANGA (PTY)
LTD
Third Respondent
Heard
:
02 February 2017
Delivered
:
07 February 2017
Summary:
An opposed application to review and set aside
the arbitration award. The award issued by the second respondent
falls within the
bounds of reasonableness. There is no justifiable
basis upon which this Court can upset the award made by the second
respondent.
Held: (1) The application for review is dismissed. (2)
The applicant is to pay the costs of the application.
JUDGMENT
MOSHOANA,
AJ
Introduction
[1]
This is an opposed application seeking to
review and set aside an arbitration award issued by the second
respondent under the auspices
of the first respondent. The second
respondent found that the dismissal of Victor Dlamini was
substantively fair and dismissed
the referral with no order as to
costs.
Background
facts
[2]
Victor Dlamini (Mr Dlamini) was employed as a bar man for a
period of over 32 years. On or about 13 March 2009, the third
respondent
arranged a farmer’s information session and function
at the Pick and Shovel located at its Coal Mines Pan. Mr Dlamini and
Mr Amos Mabuza were requested by management to supply liquor and soft
drinks at that function. Mr Dlamini completed a request form,
which
was approved by management. The approved drinks were accordingly
taken to the function which lasted not more than three hours.
There
were about 20 attendees at the function. They were served with drinks
of their choices. Not all the drinks were consumed
at the end of the
function. The balance of the drinks were taken back to the bar where
Mr Dlamini reconciled the difference and
recorded same on a
piece
of paper
which subsequently disappeared.
[3]
On or about 16 March 2009, Mr Dlamini contacted one Ms
Kim Amos and represented that a certain amount of drinks were
consumed
at the function. Management did not believe that such
quantity as represented by Mr Dlamini could have been consumed
by the
20 attendees for the period for which the function lasted. An
investigation was launched. Such an investigation revealed certain
discrepancies. As part of the investigations, one Mr Francis Alwyn
Venter Van Rooyen approached each of the attendees who disputed
having consumed the quantity represented by Mr Dlamini. Mr Van Rooyen
also divided the quantity so represented by the 20 attendees.
This
exercise led him to a conclusion that each attendee on average
consumed 11.6 units in three hours. This he found improbable.
He also
observed that the drinks were rounded off to sixes, dozens and cases.
The applicant was then charged with fraud and or
gross dishonesty. He
was found guilty in
absentia
and was dismissed. He was
aggrieved by his dismissal. With the assistance of his Union,
National Union of Mineworkers (NUM) a dispute
of alleged unfair
dismissal was referred. Subsequently the second respondent published
the award under attack.
Grounds
of Review
[4]
The applicant raised a number of grounds,
in its papers. In the light of the crystalized test for review it is
unnecessary to repeat
all of them in this judgment. Suffice to
mention that it is apparent that the applicant is seeking to appeal
as opposed to reviewing.
Argument
[5]
In Court Mr Makinta for the applicant submitted that the award
of the second respondent is riddled with speculations and thus
unreasonable.
On the other hand, Ms Leyden for the third respondent
argued that the award is reasonable and the review application should
thus
be dismissed with costs. I engaged Mr Makinta on the submissions
he made in Court. It became clear to me that his submissions were
based on a selective reading of the record. He sought to criticize
the findings of the second respondent which findings were perfectly
supported by what the record revealed.
Evaluation
[6]
Applying the reasonableness test, I am unable to find that the
second respondent has rendered an award which a reasonable
commissioner
could not render. It was common cause throughout the
arbitration proceedings that Mr Dlamini represented that a certain
quantity
of drinks was consumed. The third respondent did not believe
the said representation. Before the second respondent the third
respondent
adduced evidence, which when assessed supports the
contention that the representation by Mr Dlamini is false. The second
respondent
found that there was no direct evidence before him. In
that regard, he concluded thus:
“
The
case of the Respondent rests upon circumstantial evidence. It is
necessary for me to find that the inference of fraud and gross
dishonesty is consistent with the proven facts and that all other
reasonable inferences are excluded.”
[1]
[7]
In performing the
assessment, he reflected on the uncontested evidence of Mr Van Rooyen
that the returned stock was in so picture
exact in its make-up. He
also found that it is improbable that the farmers would have consumed
the amount of liquor and beverages
alleged by Mr Dlamini given
the amount of time they had to imbibe it. In
Cooper
& Another NNO v Merchant Trade Finance Ltd
[2]
Zulman JA held thus—
“
the
court in drawing inferences from the proved facts, acts on a
preponderance of probability. …If the facts permit of more
than one inference, the court must select the most “plausible”
or probable inference.”
[3]
[8] As a
court of review I must always remind myself that I cannot substitute
the findings of an arbitrator simply because I would
have come to a
different finding. If an award is one that a reasonable commissioner
can arrive at, I cannot substitute it. I am
unable to fault the
second respondent’s findings. On the proven facts, it is
reasonable to conclude, using inferential reasoning,
that Dlamini did
in fact misrepresent the quantity of the drinks consumed.
Order
In the
premises, I make the following order:
1.
The review application is hereby dismissed.
2.
The Applicant, NUM, is to pay the costs of this application.
_______________________
G.
N Moshoana
Acting
Judge of the Labour Court of South Africa
Appearances
For the
Applicant:
E.S. Makinta
of E S Makinta Attorneys, Fourways.
For the
First Respondent: S Leyden of Shepstone and Wylie,
Johannesburg.
[1]
Para 20 of
the award page 30 pagination.
[2]
2000 (3) SA
1009 (SCA).
[3]
Id at para 7.