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[2017] ZALCJHB 227
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Genet Mineral Processing (Pty) Ltd v CCMA and Others (JR1701/2017) [2017] ZALCJHB 227 (22 March 2017)
IN THE LABOUR COURT
OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO
: JR1701/2017
DATE
: 2017-03-22
In the matter between
GENET MINERAL PROCESSING
(PTY)
LTD Applicant
and
CCMA First
applicant
MOKABANE
N.O. Second
applicant
ESWUSA
obo
MAGAGULA Third
respondent
JUDGMENT
STEENKAMP,
J
:
[1]
This is an application by
Genet Mineral Processing (Pty) Ltd to have an arbitration award by
Commissioner Comfort Mokabane of the
CCMA reviewed and set aside. It
stems from the dismissal of the third respondent, Mr Sipho Given
Magagul,a who is represented by
his trade union, ESWUSA. The
employee was called to a disciplinary hearing on the 13
th
of May 2015 on the following allegation of misconduct:
“
It
is alleged that you are guilty of gross negligence alternatively
gross insubordination in that you blocked the plant by adding
magnetite thereby reducing clarified water.”
In shorthand, it was
alleged that the employee had caused a blockage that had the
potential to cause significant loss to the employer,
which is a
mining operation. The incidents that led to the complaint against the
employee were set out by the complainant, Mr Gustav
Smuts. Mr
Smuts explained in a statement that the employee
“…
was
accused of blocking the plant by failure to check the water in plant
and water levels and kept feeding Magnetite to the plant
when there
was no water. Thereby [
sic
]
wasting a whole batch over a couple of days.
This happened on the 18
th
April 2015 and 27
th
April 2015.”
There is no transcript or
other details of the disciplinary hearing other than the finding by
the Chairperson on the 20
th
of May where he, that is Mr
Harry van der Westhuizen, records that the employee is dismissed for
“
Gross
negligence in that you [something] the plant at Doornrug by failing
to check the water levels (water in plant) on the 18
th
April 2015 and 27 April 2015.”
It is clear therefore
that the misconduct for which the employee was dismissed was that he
was grossly negligent by causing a blockage
on the 18
th
and 27
th
of April 2015.
At the arbitration the
representative for the employee, Mr Sefiti, started off in his
opening address by pointing out that on those
dates there was no loss
of production. The representative for the employer, Mr Welman,
made no contrary comment in his opening
address and it is only when
the employer’s main witness, Mr Smuts, started testifying that
he said that there was in fact
a mistake in both his statement and in
the findings of the disciplinary chairperson and that the employee
should have been disciplined
for misconduct complaint of on the 11
th
and the 26
th
of April. The chairperson did not testify to
explain why the misconduct on which the employee was dismissed
specifically related,
instead, to the 18
th
and the 27
th
of April.
At
arbitration the Commissioner, having heard the evidence of Smuts and
of the employee, found that the employee did not commit
the
misconduct complained of. He noted that the employee was
charged and dismissed for gross negligence and that “the
above
charge stems from the incidents that occurred on the 18
th
and 27
th
April 2015.”
He noted that it was
common cause that the employee was on duty on those days and that the
crew under his supervision reached the
production targets on those
days. He therefore
found that the employee did not
commit the misconduct for which he
was dismissed.
Mr
Grundlingh
,
for the employer, argues that arbitration is a hearing
de
novo
and that at the arbitration stage
it was clear that the misconduct that was complained of actually
happened on the 11
th
and the 26
th
of April. The difficulty with that assertion is that
that was not the basis for the employee’s dismissal.
From
the portions that I have quoted the Commissioner was quite correct in
saying that the misconduct for which the employee was
dismissed was
gross negligence on the 18
th
and 27
th
of April.
For his argument Mr
Grundlingh
relied upon
Fidelity Cash Management Services v
CCMA
[2008] 3 BLLR 197
(LAC) where the Labour Appeal Court held
that it is a principle of labour law in our country that the fairness
or otherwise of
the dismissal of an employee be determined on the
basis of the reasons for dismissal which the employer gave at the
time of the
dismissal. That is of course trite law and quite
correct. The reasons for dismissal which the employer gave in this
case,
could not be clearer. The chairperson says in so many
words that it is based on misconduct on the 18
th
of April
2015 and the 27
th
April 2015. I agree with Mr
Grundlingh
that an employer may not seek to justify a
dismissal based on gross dishonesty in arbitration whilst the
employee was charged with
and found guilty of gross negligence at the
disciplinary hearing. In this case, the employee was dismissed on the
basis of gross
negligence on the 18
th
and 27
th
of April 2015. That is the reason for dismissal given by the
employer. The arbitrator found that the employee did not commit
any misconduct on those days. In fact, Mr
Grundlingh
accepted that it was common cause that there was no misconduct on
those days.
Even
if the employer made a mistake by presenting the employee with the
wrong allegations of misconduct, that is a mistake with
which it has
to live. The arbitrator’s finding that the employee did
not commit misconduct on those days is a reasonable
one, using the
test in
Sidumo
.
Given
my conclusion in that regard, I need not strictly speaking deal with
the evidence of Smuts, other than to say that the
arbitrator’s
reasoning that, even if he were to consider the evidence of Smuts
relating to the 11
th
and the 26
th
of April, he was not persuaded by that evidence because Smuts was not
on duty and not in a position to give direct testimony and
to testify
what transpired at the plant. He could not find on the balance of
probabilities that the employee committed the misconduct
complained
of on those days either.
As
I say, I need not strictly speaking consider that; my comments
therefore are
obiter
,
but it does seem to me that, even if this court may have found
otherwise, given the inferences that could have been drawn from
Smuts’s evidence, the conclusion reached by the arbitrator is
not so unreasonable that no other arbitrator could have come
to the
same conclusion. It may have been open to appeal but not to
review.
Lastly,
Mr
Grundlingh
and his predecessor, Mr
Venter,
argued
that the employee should in any event not have been reinstated; but
the authority that Mr
Grundlingh
relied on, that of the recent Constitutional Court case of
SARS
v CCMA and Kruger
[2017] 1 BLLR 8
(CC);
(2017) 38
ILJ
97 (CC);
2017 (1) SA 549
(CC);
2017 (2) BCLR 241
(CC), is clearly
distinguishable. In that case, Kruger did commit misconduct. He
accepted as much. It is in those circumstances
that the
Constitutional Court criticised the arbitrator for not having
considered the correct or the appropriate remedy.
In
this case the arbitrator found that the employee committed no
misconduct. In those circumstances the default position is
that
outlined in section 193(1) of the LRA, that is reinstatement.
The arbitrator’s decision to rule that the employee
should be
reinstated given that he had committed no misconduct is not an
unreasonable one.
Lastly,
with regard to costs, I take into account that there is an ongoing
relationship between the union and the employer as well
as the
employee and the employer. In law and fairness I did not think
that a cost award is appropriate.
The
application for review is dismissed.
______________________
STEENKAMP J
APPEARANCES
APPLICANT:
R Grundlingh
Instructed
by: Joubert attorneys.
THIRD
RESPONDENT: Goldberg attorneys.
[1]
NOTE:
This is the transcript of an
e
x
tempore
judgment that I handed down in open court on 22 March 2017. It was
only sent to me for my signature on 1 June 2017, more than
two
months later.