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[2017] ZALCJHB 191
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Sibanye Gold Ltd (Driefontein Mine) v Commission for Conciliation, Mediation and Arbitration and Others (JR2684/13) [2017] ZALCJHB 191 (1 March 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not
Reportable
Case
no: JR 2684/13
SIBANYE
GOLD LTD (DRIEFONTEIN MINE)
Applicant
And
COMMISSION FOR CONCILIATION
MEDIATION & ARBITRATION
COMMISSIONER FAIZL MOOI N.O.
AMCU
obo TSHEDISO LETJABA
First
Respondent
Second Respondent
Third
Respondent
Heard
on: 2 February 2017
Order:
7 February 2017
Reasons:
14 February 2017
Edited:
1 March 2017
REASONS FOR
JUDGMENT
VAN NIEKERK J
[1]
On 7
February 2017, I granted an order reviewing and setting aside an
arbitration award issued by the second respondent, to whom
I shall
refer as ‘the arbitrator’. In his award, issued on 1
November 2013, the arbitrator found that the third respondent’s
dismissal was substantively unfair. He ordered the applicant to
reinstate the third respondent. I substituted that order with an
order that the third respondent’s dismissal was substantively
and procedurally fair.
[2]
The
material facts are not in dispute and appear from the arbitrator’s
award as well as the transcribed record of the proceedings
under
review. I do not intend to burden this judgment are worth a
repetition of the evidence; it is sufficient to state for present
purposes that the third respondent was dismissed on 23 November 2012
after having been found guilty of a refusal to obey reasonable
instruction. The instruction concerned was issued by the third
respondent’s supervisor and required him to take a galley
box
switch and exchange the faulty switch.
[3]
The
arbitrator’s substantive findings are recorded in paragraphs 37
to 46 of his award. In essence, the arbitrator noted that
the first
charge against the third respondent was that relating to the
provision of false information in that he reported the supervisor
that the faulty winch had been fixed where as it had not been fixed.
The arbitrator noted there the third respondent’s dismissal
was
substantively fair on this charge as Motaung and conceded that the
applicant did not state on the telephone that the winch
had been
fixed. In regard to the second charge, the refusal to bed a
reasonable instruction to exchange the faulty switch, the
arbitrator
found that the reason given by the third respondent for not
exchanging the switch was that he was waiting for his assistant.
In
the arbitrator view this did not demonstrate a refusal to obey the
instruction. At most, it demonstrated that the third respondent
delayed in applying the instruction. Third, the other turn into a
distinction between a refusal to comply instruction and a failure
to
carry out the instruction. The evidence established at most, in the
arbitrator’s view, that the third respondent may have
been
derelict in his duties. In the absence of any evidence of any
intention to deliberately refuse the instruction given to him,
the
arbitrator was of the view that the third respondent is not guilty of
the charge against him and that his dismissal was accordingly
and
fair. In short, the arbitrator held that the third respondent had not
articulated any intention not to obey the instruction.
[4]
The
grounds for review largely concern the arbitrator’s assessment
of the evidence led before him. In particular, the applicant
contends
that the arbitrator failed to take into consideration advice conduct,
the third respondent that showed a clear intention
to bathe
instruction. In particular, the third respondent submits that the
evidence discloses that the instructions given by the
supervisor
Motaung disclosed that instructions to fix the winch were given over
a period of three days, during which the winch
was not prepared. On
the first day, 30 October 2012, the winch is not working on the third
respondent was given an instruction
to fix it. The third respondent
advised the supervisor that there was a problem with the Breakers,
that he had adjusted them and
that the winch was working. However,
the winch was not working. This resulted in a further instruction
given on 1 November 2012.
On this occasion, when he returned from
underground, the third respondent advised Motaung that he had
performed the required tests
and that the winch was working. In fact,
the winch was not working. Third instruction is given to the third
respondent on 2 November
2012. On this occasion, the third respondent
advised Motaung that there was a problem with the switch. Motaung
instructed the third
respondent to take a galley box switch in
exchange the faulty switch. The third respondent did not do so. When
the third respondent
was again instructed to go underground and
replace the supposedly faulty switch, respondent said that he would
book the job for
the night shift. The third respondent was advised
that it was not the nightshift that was required to do the work, but
that the
third respondent was required to undertake the task. On
Motaung’s and disputed vision, the third respondent then turned
around
and walked away from him. It is also not disputed that when
the instruction was given to another electrician to fix the winch, he
was able to rectify the problem immediately. The fault was not with
the switch as alleged by the third respondent; rather, cable
damage
was discerned. What the arbitrator failed property to consider was
that of the act of turning his back on the supervisor
proceeding to
go without fixing the switch is required clearly amounted to an act
of defiance amounting to a refusal to obey an
instruction. This is
particularly so in a context where at least three instructions had
been given to the third respondent to repair
the fault concerned.
[5]
The test established by the Constitutional Court in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC) and affirmed by the Supreme Court Of
Appeal in
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as
amicus
curiae
[2013] 11 BLLR 1074
(SCA) empowers this court to interfere
with an award made by an arbitrator if and only if the arbitrator
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. What this amounts to is an
outcomes-based enquiry, a stringent test aimed to ensure that this
court is
not likely to interfere with arbitration awards. The Labour
Appeal Court has made clear that reasonableness does not equate to
correctness and that a decision made by an arbitrator that is wrong
will pass muster provided it is not so wrong as to be unreasonable
(see
Bestel
v Astral Operations Ltd & others
[2011] 2 BLLR 129
(LAC) per Davis JA, who at paragraph 18 of the
judgment emphasised the need to distinguish between reviews and
appeals).
[6]
The manner in which the review court should assess the evidence that
served before an arbitrator to determine the reasonableness
of the
result was the subject of a judgment by the Labour Appeal Court in
Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v
Commission for Conciliation, Mediation and Arbitration and others
[2014] 1 BLLR 197
(LAC). The LAC (per Waglay JP) held as follows:
In
a review conducted under section 145(2) (a) (ii) of the LRA, the
reviewing court is not required to take into account every factor
individually, consider how the arbitrator treated and dealt with each
of those factors and then determine whether a failure by
the
arbitrator to deal with one or some of the factors amounts to a
process-related irregularity sufficient to set aside the award.
This
piecemeal approach of dealing with the arbitrator’s award as
improper as the reviewing court must necessarily consider
the
totality of the evidence and then decide whether the decision made by
the arbitrator is one that a reasonable decision maker
could make.
[7]
In other words, even if an applicant in a review application is able
to identify some misdirection on the part of the arbitrator
(for
example, as in the present instance, a failure to consider material
facts or to attach weight to relevant evidence or attach
weight to
irrelevant evidence and the like), that is not in itself a basis for
a review for want of reasonableness; the resultant
decision must fall
outside of a band of decisions to which a reasonable decision-maker
could come on the same material.
[8]
The LAC more 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 this judgment, Murphy AJA
said the following:
[33]
Irregularities or
errors
in relation to the facts
or
issues, therefore, may or may not produce an unreasonable outcome or
provide a compelling indication that the arbitrator misconceived
the
inquiry.
In
the final analysis, it will depend on the materiality of the error or
irregularity and its relation to the result. Whether the
irregularity
or error is material must be assessed and determined with reference
to the distorting effect it may or may not have
had
upon
the arbitrator’s conception of the inquiry, the delimitation of
the issues to be determined and the ultimate outcome.
If
but for an error or irregularity a different outcome would have
resulted, it will
ex
hypothesi
be
material to the determination of the dispute. A material error of
this order would point to at least a
prima
facie
unreasonable
result. The reviewing judge must then have regard to the general
nature of the decision in issue; the range of relevant
factors
informing the decision; the nature of the competing interests
impacted upon by the decision; and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the
LRA. Provided the right question was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, an irregularity or error material to the
determination
of the dispute may constitute a misconception of the
nature of the enquiry so as to lead to no fair trial of the issues,
with the
result that the award may be set aside on that ground alone.
The arbitrator however must be shown to have diverted from the
correct
path in the conduct of the arbitration and as a result failed
to address the question raised for determination.
[9] In my view,
the arbitrator failed to have regard to the evidence before him. A
reasonable decision maker would have concluded
on the same evidence
that the third respondent refused to comply with a reasonable
instruction. Insubordination (or a refusal to
carry out an
instruction) may assume a variety of forms. What the arbitrator
ignored was the conduct of the third respondent and
in particular his
non-verbal actions, which clearly demonstrated an act of defiance.
The evidence disclosed more than an innocent
failure to comply with
an instruction. The only inference to be drawn was that the third
respondent was accordingly guilty of refusing
to carry out a
reasonable instruction.
For
the above reasons, I granted the order reflected in paragraph 1
above.
_____________________
Van Niekerk J
Judge
of the Labour Court
APPEARANCES
APPLICANT:
Ms. G Mthalane, Solomon Holmes Attorneys
THIRD
RESPONDENT: Mr. V Shongwe, AMCU