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[2017] ZALCJHB 466
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NUM obo Sebabi v Commission for Conciliation, Mediation and Arbitration and Others (JR1607/15) [2017] ZALCJHB 466 (17 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 1607/15
In
the matter between
NUM OBO LODIUS SEBABI
Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND
ARBITRATION
First Respondent
COLLINS LENKWASI MAKAMA
N.O
Second Respondent
MUTUAL CONSTRUCTION COMPANY
(PTY) LTD
Third Respondent
Heard:
17 May 2017
Delivered:
17 May 2017
JUDGMENT
CELE,
J:
Introduction:
[1]
The
application before me is of a bifurcated nature. The first part of it
is an application brought in terms of section 145 of the
Labour
Relations Act
[1]
,
(LRA), where the applicant seeks to be granted an order which it
framed in the following terms:
“
1.
Reviewing and setting aside the arbitration award handed down by the
second respondent
under case number NWRB892/15 dated 3 July 2015.
2.
Substituting the award of the second respondent with an order that
the dismissal
of Mr Sebabi was substantively unfair and reinstating
him in the third respondent’s employ.
3.
Alternatively to the order sought in paragraph 2 above, an order
referring the
matter back to the first respondent for arbitration
de
novo
before
a commissioner other than the second respondent.
4.
Directing the respondent opposing the relief sought herein to pay the
costs of
the application.
5.
Granting the applicant further an alternate relief.”
[2]
The application was indeed opposed by the
third respondent in his capacity as the employer of the employee, Mr
Sebabi, who is a
member of the applicant, the National Union of
Mineworkers (NUM).
[3]
The second leg of the application is an
application for condonation for the late filing of the review
application in this matter.
The lateness is a period of just seven
days. To this extent, Mr Sebabi testified under oath, because there
were no supporting documents
for this application whilst a promise
was made in the founding papers that such an application would be
filed.
[4]
Mr Sebabi testified; and if I may begin
with that part of the application. He indicated that he resides in
Limpopo. He was telephoned
by an official of the NUM, who informed
him that there were documents that he needed to sign meaning to have
those documents commissioned
and he was to travel to Rustenburg where
this was to be done.
[5]
He did not have the money at the time. He
requested his union to assist him with such transport money. It took
them about five to
six days when that money was then deposited
through a cardless transaction
via
the Shoprite store where a pin code was given to him. Because he had
to travel to Shoprite, he was delayed. It took him about two
to three
days to get there, because he did not have the money to go to
Shoprite at his area. At some stage, he was able to
go to
Shoprite and was able to withdraw the amount of money. He then
travelled to Rustenburg where he then took part in the commissioning
of the founding affidavit, which constitutes the initial steps of the
review application.
[6]
At the commencement of these proceedings, I
asked Mr Posthuma, appearing for the third respondent, certain
questions that talk to
how the commissioner conducted an enquiry into
the evidential material that was before the commissioner. Certain
concessions relating
to the weekend period were made by him, but I
will refer to this shortly. In summary then I have to go back and
revisit the evidence.
Background
[7]
The employer (Mutual Construction Company
(Pty) Ltd) conducts operations in the mining industry and had an open
cast mining near
Rustenburg, North West Province. The employee
concerned in this matter commenced employment with the employer on
9 January 2012
as a RDT operator. He was driving what is
called a dump truck. To drive it, he had to possess what is called a
pit licence. That
pit licence would periodically expire and had to be
renewed. In order to renew it, he had to undergo a prescribed
training course
after which the licence could thereafter be renewed.
[8]
In this instance on 30 September 2014,
the employee’s pit licence expired. He then had to undergo the
prescribed
course at the workplace. There is a location where these
courses are run. A person by the name of Lerato was responsible for
facilitating
these courses. The procedure being that an employee
presents him or herself at the premises of the company is given a
route form
that tracks his movement. Once that route form is given,
he is then directed to the class where the lecture is conducted. The
lecture
is conducted there and whoever is responsible for
administering the lecture will ensure that the attendees sign an
attendance register.
[9]
At some stage during the day the attendees
have to sign a timesheet. This timesheet is used by the company to
pay the attendees,
as they are deemed to be on duty. They would have
attended the course. They would be entitled to salary payment. So,
the timesheet
generates the system through which salary payment is
made.
[10]
The employee attended these sessions, but
it came to light that he would not attend any sessions during the
weekends. In particular
on 4 and 5 October 2014 and
11 and 12 October 2014. On these dates he
presented himself
and therefore would have signed the attendance
register for coming in, but he could not go to the lecture hall,
because there are
no such courses that are offered during the
weekend.
[11]
There are other dates where he did not
attend but signed the register. There are also occasions where the
attendance register was
not signed. This includes 2 and 3 October
and 6 and 12 October where the attendance register was not
signed. He,
however, would have then completed the timesheet.
[12]
The company decided to charge him with an
act of misconduct, believing that when he was supposed to be
attending a training course,
there are days where he did not present
himself and yet the timesheet he presented suggested that he did
attend. He was found guilty
of these acts of misconduct and he was
then dismissed.
[13]
He was aggrieved by the dismissal. He
referred an unfair dismissal dispute for conciliation. Conciliation
failed to resolve it and
he referred the dispute to arbitration. The
second respondent was appointed to arbitrate this dispute. The
dismissal was common
cause and therefore the employer had to first
lead its evidence through its witnesses to prove the fairness of
dismissal.
[14]
In this case the employee had been facing a
charge of fraud. The evidence was led through Mr Esrom Mojalefe for
the company. And
then the evidence of Mr Pieter Johan is Pauli who
also testified.
[15]
At the end of those proceedings (that is
the arbitration hearing) the second respondent issued the assailed
arbitration award with
the finding that the dismissal of the
applicant was substantively fair and the matter was dismissed. The
union acting on behalf
of its member initiated the presented
application (this is the review application), challenging the
findings of the commissioner.
Condonation application:
[16]
I then revert to the condonation
application. The period of delay is about seven days. It is a fairly
short period of time. And
the explanation has been proffered by the
employee. The explanation is acceptable. It stands unchallenged. In
fact, Mr Posthuma
has indicated that the condonation application is
not opposed. Rightfully so, because there is merit in this
condonation application
in the sense that the explanation is
plausible when the period is fairly short; and by the time Mr Sebabi
testified, we had deliberated
on the merits of the review
application.
[17]
There are very good prospects of success in
this application. And the condonation application is heard
simultaneously with the review
application. There will therefore be
no prejudice suffered by any of the parties. It is therefore in the
interest of justice that
condonation should be and is therefore
granted.
Evaluation:
[18]
I
revert to the review application. The test for a review application
is set in the well-known decision in
Sidumo
and Another v Rustenburg Platinum Mines
[2]
.
The test is stated in simple terms, being whether or not the decision
reached by the commissioner is one that a reasonable decision-maker
could not reach.
[19]
That
decision has been subjected to a number of interpretations and
application, including the
Herholdt
v Nedbank Ltd
[3]
decision at paragraph 25 where more is said to this effect. In
summary, the position regarding the review of CCMA awards
is this:
“
A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in section 145(2)(a) of
the LRA. For a defect in the conduct of the proceedings to amount to
a gross irregularity as contemplated by section 145(2)(a)(ii),
the
arbitrator must have misconceived the nature of the inquiry or
arrived at an unreasonable result. A result would only be
unreasonable
if it is one that a reasonable arbitrator could not
reach on all the material that was before the arbitrator. Material
errors of
fact as well as weight and relevance to be attached to
particular facts are not in and of themselves sufficient for an award
to
be set aside, but are only of any consequence if their effect is
to render the outcome unreasonable.”
[20]
Another
guide comes from the well-known decision in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mining) v CCMA and
Others
[4]
.
It is a judgment of Waglay JP. He deals with the review test from
paragraph 13 to paragraph 21 of the judgment. I will not read
these
paragraphs, but I will pay particular attention to what is said in
paragraphs 19 and 20. Those are the guides and this is
in harmony
with what is said in the
Herholdt
decision.
[21]
In summary, the question is simply whether
the commissioner conducted a proper inquiry into the evidential
material before him or
her and that if he had done so, issued an
award that is reasonable in the circumstances when all the evidential
material is considered.
[22]
This then takes me back to the days when Mr
Sebabi came to work on weekends, in particular 4 and 5
October 2014 and
11
and
12
October 2014.
His evidence was that he came to work, because there was no course
during the weekend. He could not present himself
to the lecture room.
The commissioner did not at all deal with these dates. There are four
dates and they are therefore significant.
He should have said
something in the award. The award is very much silent about that.
[23]
There is further evidence of the employee
that he had attended certain other courses, but they had been
repeated on some days. He
felt it was unnecessary therefore to again
present himself there, because he had already attended those
sessions. He then says
because he had attended enough training
sessions, he subsequently was given the licence or it was renewed to
him. The renewal was
a significance or an indication that he had
attended enough for the pit licence to be issued to him.
[24]
Again, the commissioner did not look at
this evidence that I am referring to. All that the commissioner said
were basically the
following, and I read paragraphs 18 and 19.
“
18.
Having heard the evidence of both parties, I have observed that the
applicant did not sign the attendance register
for the following
dates: 2, 3, 6, 7, 8, 9, 10, 11 and 12 October 2014. These are the
dates upon which various training sessions
took place. Apparently,
the applicant should have attended those training sessions.
Alternatively, if he was not attending those
sessions, then he must
have been at work. In simple terms, he is either at work or training.
If he is not at work or at the training,
then acceptable will be for
him or any person to not to claim for those days. There is no basis
for any person to claim or complete
a timesheet for the days that a
person was not at work.
19.
Having listened to the evidence by both parties and consideration of
the documents submitted, I have observed
that the applicant signed a
timesheet, claiming the days of 4 October, 5 October, 6 October, 11
October and 12 October. I cannot
understand if the applicant did not
sign the attendance register on those days how he justifies his
attendance for those days.
What could be the proof that shows that he
had worked or was at training on those days? In all fairness he does
not have any. My
understanding of an attendance register is to record
and to account for someone’s attendance. If the applicant did
not sign
the attendance register, why did he record his attendance?
How does he account for his attendance? If there was an issue about
the attendance register, why did he complete some on certain days and
leave some on other days. Also for him to be able to justify
his
completion of the training hours, he is going to do so without the
attendance register.”
[25]
Might I read paragraph 22
“
If
there is nothing from the applicant to show that he had attended the
sessions, can it be said that he was present at those sessions?
I do
not think so, as there is no proof for such. The probability is that
the applicant was not in attendance. That being the case,
was the
absence of the applicant at the training sessions authorised? It does
not appear so. Similarly, can the applicant claim
for those days in
the absence of any proof? It cannot be, because if it was to be
allowed, then it would amount to a fraudulent
activity as suggested
by the respondent.”
[26]
The commissioner finally accepted the
evidence of the employer and rejected the evidence of the employee
and issued the award, as
I have indicated what I have read indicates
that the commissioner missed the actual inquiry he was called upon to
determine. I
have indicated that the 4
th
and 5
th
and the 11
th
and 12
th
of October 2014 fell on a weekend and that is common cause. It is
also common cause that no courses are run during the weekend.
The
employee presented himself and therefore his name would appear in the
attendance register. He was at work. The commissioner
seems to assume
that he was not at work. He was not outside of the company premises
when the evidence, it was undisputed, indicated
that he was at work.
[27]
The biggest problem there is about this
case is that no evidence is led as to what should happen to an
employee such as the present
one where he cannot attend a course,
because there is no course running at the time or he has attended a
session similar to the
course that is running, but present himself at
work, hands in the attendance register. What must happen to that
person? Normally
there would have to be a supervisor who allocates
different work other than that of driving, because his licence would
have expired
and therefore he could not do the normal work that he
was to do, but there is an abundance of silence about that as to what
was
to be done.
[28]
The commissioner does not interrogate this
piece of evidence. Had he done so, he in all probabilities would have
come to a conclusion
possibly that the employee might not have
committed the misconduct charged, depending on the company policy
about his movements
once he presents himself. In the absence of that
evidence, it also puts me in a difficult position as to honour the
request of
the applicant in the event I review the award to
substitute, because there is a paucity of evidential material in
relation to what
I have just said.
[29]
In my view, the commissioner committed a
gross irregularity in how he went about applying his mind into the
evidential material.
He missed all material evidence that was before
him. The consequence is clear. He therefore issued an unreasonable
award. That
gives me the right to review this award and set it aside.
I have intimated to the parties in the presentation of this matter
that
it is not a matter where I should be substituting because of the
paucity of the evidence.
Order:
[30]
In the premises, the following order is
made:
1.
The application for condonation of the late filing of the review
application is granted;
2.
The arbitration award dated 3 July 2015 issued by
Commissioner C.L Makama under case number NWRB 892/15 issued under
the auspices of the Commission for Conciliation Mediation and
Arbitration (CCMA) is reviewed and set aside;
3.
This matter is remitted to the CCMA for a
de novo
arbitration
hearing before a Commissioner other than the second respondent.
4.
There is no order as to costs.
____________________
H.
Cele
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Mr K.D Maimane of K.D Maimane
Incorporated
For
the Third Respondent:
Mr
A. Posthuma of Snyman Attorneys
[1]
Act
66 of
1995, as amended
[2]
(2007) 28
ILJ 2405 (CC)
[3]
[2013] 11
BLLR 1074 (SCA)
[4]
(2014) 35
ILJ 943 (LAC)