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[2017] ZALCJHB 130
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Mphahlele v Coreslab (JR759/12) [2017] ZALCJHB 130 (12 April 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JR 759/12
In the
matter between:
DAVID
MPHAHLELE
Applicant
and
CORESLAB
Respondent
Heard
:
02 March 2017
Delivered
:
02 March 2017
Edited:
12 April 2017
EX
TEMPORE JUDGMENT
MOSHOANA
AJ
This is
an application brought in terms of section 145 of the Labour
Relations Act. The applicant before me contends that the award
issued
by the commissioner, the second respondent before me, is not one that
a reasonable commissioner would have issued in relation
to the
appropriate sanction that was to be imposed by the employer. On the
other hand, the third respondent, being the union on
behalf of Mr
David Mphahlele, had lodged a counter-review; the basis thereof being
that the award issued by the second respondent
is not one that a
reasonable commissioner would issue in relation to the guilt on the
part of Mr Mphahlele.
The brief facts
around this case are as follows: Mr Mphahlele commenced employment on
the 18
th
of June 2008 in a position that was mentioned as a ‘shutter
hand’. The employee, on the 16
th
of August 2011, was given some instruction to dig a trench and
thereafter clean it. It is common cause that Mr Mphahlele refused
to
carry out those instructions. At the disciplinary enquiry he was
found guilty and dismissed. He was aggrieved by the dismissal
and
approached the first respondent; and the first respondent appointed
the second respondent to resolve the dispute.
In relation to the
counter-review, Mr Makinta, appearing for the third respondent,
argued that the commissioner was unreasonable
in coming to the
conclusion that Mr Mphahlele was obliged, as it were, to follow the
instruction, because according to the material
that was presented
before her, in particular page 156 of the paginated papers, which
reads as follows:
“
David
Mphahlele has been elected to be the person responsible for cleaning
and maintaining the ablutions, locker rooms and the workshops.
David
will be responsible for cleaning and maintaining the area around the
lockers and toilets as well. From today David will be
reporting to Mr
Tommy Yvette. Please assist David in keeping the lockers and toilets
clean and tidy. David must report any problems
to Mr Tommy
immediately. David must also report people that do not give their
cooperation and do not keep the toilets and lockers
clean and tidy.
We wish David good luck with his new position. It bears the signature
of management and the signature of Mr Mphahlele.”
The
document is not dated. However, it was pointed out to me in argument
that it was actually issued on the 23
rd
of October 2010.
Now, on the basis
of this document, page 156 and other places that I would deal with
later in this judgment, an argument developed
that the instruction
does not fall within the document at page 156, which I have just
quoted; and therefore, Mr Mphahlele was justified,
as it were, to
ignore the instruction. Now, the law regarding insubordination is
very clear. An employee must not sidumrefuse to
carry out a lawful
and a reasonable instruction.
The commissioner
came to the conclusion with the evidence that was before him, in
particular the evidence of Mr Tommy Yvette who,
as his testimony is
recorded under paragraph 4.1.3, which reads as follows:
“
He
testified that the applicant was employed as a ‘shutter hand’
building scaffolding. However, due to the number of
incidents/accidents, he was transferred to the workshop maintenance
section. His job comprised of cleaning workshop, ablution facilities,
planting trees and digging holes. All this was discussed verbally
with the Production Manager. The memorandum was placed on the
notice
board. He was doing gardening and other jobs until he was dismissed.”
Now, on
the balance of probabilities, the second respondent came to the
conclusion that the instruction that was provided or requested
by the
two managers fell within the responsibilities of Mr Mphahlele.
I am now being
asked to interfere with that finding, because as it is argued, the
finding is unreasonable. As the authorities have
pointed out, as the
review court, I always have to remind myself whether there are any
justifiable basis upon which I can conclude
that the finding made by
a commissioner is unreasonable. If a finding falls within the bounds
of reasonableness, then I cannot
interfere. I do not understand how a
person who is employed, as the evidence point out, as a general
worker would not be required
to perform the functions that were
instructed by the two managers. There was, it appears to me, a
contention that the instruction
was unreasonable and unlawful. To
that extent, the commissioner at paragraph 5.10 said the following:
“
The
applicant party failed to prove that the instruction was unreasonable
and unlawful.”
The submission of
Mr Makinta was that the onus lied on the employer to prove the
lawfulness and the reasonableness of the instruction.
He, however,
refused to concede that if the employee makes an allegation, the
employee bears the evidentiary burden to prove that
allegation of
fact. The law is very clear. A party who makes an allegation of fact
would have the duty to provide evidence in support
of that fact; and
that is called evidentiary burden, which is different from onus. Onus
never shifts; and in terms of section 192
of the Labour Relations
Act, it stays with the employer to justify the fairness of the
dismissal. Accordingly, it is my view that
the finding stated by the
commissioner that the applicant failed to prove that the instruction
was unreasonable and unlawful is
perfectly in line with the law
insofar as evidentiary burden is concerned.
So, returning to
the issue of the counter-review; it is my conclusion that the
counter-review has no basis and should fail. Now
I am turning to the
issue of the main review. As I have pointed out earlier, the basis of
the main review is simply the issue of
interfering with the sanction
of the employer. It is trite law that the duty to determine the
appropriate sanction in an arbitration
process is that of a
commissioner or an arbitrator. And the arbitrator therein would be
applying his or her own sense of fairness.
Now, the
Constitutional Court in the
Sidumo
matter has made it very clear that the commissioner is not imposing
the sanction afresh. The commissioner has to determine whether
the
sanction of dismissal as imposed by the employer is fair. And it is
at that stage that the commissioner will then have to apply
his or
her own mind in terms of fairness. However, since the arbitrator is
not starting from the clean slate, the arbitrator should,
amongst
others, take into account the reasons as provided by the employer why
it imposed the sanction of dismissal.
Now, in the matter
before me and the award that is presented by the second respondent in
dealing with the issue of the sanction,
she stated the following:
“
Was
dismissal an appropriate sanction under the circumstances? Having
considered the age and the literacy level of the applicant,
it is my
conclusion that the respondent could have dealt with the matter
differently. Chances of him finding employment elsewhere
are
non-existent in the current economic condition. It is my finding,
therefore, that the applicant... that the dismissal of the
applicant
was procedurally fair, but substantively unfair, particularly with
regard to the sanction meted out.”
As
pointed out earlier,
ex facie
the award, the commissioner took
into account, it seems, only three considerations:
1. The
age.
2. The
literacy level; and
3. The
chances of finding employment in the economic conditions.
During this time
the Constitutional Court had already stated and paragraph 78 of the
judgment in
Sidumo
states very clearly that the commissioner does not start on a blank
page and determines what is fair. It is not his task or her
task to
determine whether a dismissal as a sanction ought to be imposed or
not. That duty is the duty of the employer without necessarily
deferring to the employer. He has or she has to apply value judgment
and look at the reasons that the employer provide to justify
the
dismissal. Paragraph 78 stated very clearly in the
Sidumo
judgment that there are several factors, although not a close list,
but those are:
-
The importance of the role breached
-
The reason of the employer imposing the sanction
-
The basis of the employee’s challenge; and
-
The harm caused by the employee’s conduct; and
-
Whether additional training would be required
-
Most importantly: The record of service.
Now, in this matter
there is common cause evidence that the employee, Mr Mphahlele, was
at the time sitting with a final written
warning for a similar
misconduct. Clearly from the award that I have already pointed out
and quoted, there is no indication that
the commissioner even
considered that fact. So, the commissioner then decided to actually
take the functions of the employer, contrary
to what
Sidumo
has said, instead of assessing what the employer has done, applying
his own sense of fairness.
In the result, I
make the following order:
ORDER
1.
The award issued by the second respondent is reviewed and set aside
and is replaced with an order that the
dismissal was fair.
2.
The counter-review application is dismissed.
3.
The costs should be paid by the third respondent.
_____________________
G
Moshoana
Acting
Judge of the Labour Court
Appearances:
Counsel
for Applicant
:
(No annotations)
Counsel
for Respondent
:
Adv Makinta