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[2017] ZALCJHB 295
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Arcelor Mittal SA Ltd v Metal and Engineering Industries Bargaining Council and Others (JR1756/2015) [2017] ZALCJHB 295 (11 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no JR 1756/2015
The
matter between:
ARCELOR
MITTAL SA LTD
APPLICANT
And
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
FIRST RESPONDENT
DIDA
MASENYA N.O
SECOND
RESPONDENT
JOSEPH
DIKGANG MOTSAMAI
THIRD RESPONDENT
Heard:
18 July 2017
Delivered:
11 August 2017
JUDGMENT
NTSOANE,
AJ
Introduction:
[1]
This matter came
before me as a review launched by the Applicant (the Company) in
terms of Section 145 of the Labour Relations Act
[1]
,
(the LRA) to review and set aside the arbitration award handed down
by the Second Respondent (the Commissioner) in case MEGA45390
dated
19 July 2015. The Company is seeking an order that the arbitration
award be reviewed and set aside matter or further and/or
alternative
relief. The application is opposed by the third respondent (the
employee).
Background
:
[2]
The third respondent was employed by the applicant on the 1 March
2008 and the time of his dismissal on the 8 December 2014,
he was
occupying a position of an electrician.
[3]
What is common cause between the parties is the fact that on the day
of the incident, 25 September 2014, the third respondent
reported to
Mr Wiid (Wiid) an inappropriate conduct by one Mr Lebakeng
(Lebakeng). According to the third respondent, he was in
the change
room trying to change his clothes when Lebakeng entered and on his
exit left the door wide open for ladies in the tea
room to see the
inside of the change room. In his response, Wiid said to the third
respondent that he should simply ignore Lebakeng.
[4]
There was no witness to testify as to what happened following the
report to Wiid of Lebakeng’s unwelcome conduct. In fact
it
appears that the third respondent and Lebakeng were the only people
in the change room when the fight started thus only can
they testify
as to who started. The next that happened was Wiid and Mr Du Plessis
(“Du Plessis”) found themselves in
the midst of a
physical fight between the Lebakeng and the third respondent, in an
attempt to separate the two. The fight went
on until the security was
called and only then could the fight come to an end.
[5]
The third respondent was for that reason, charged with misconduct of
“
fighting on AMSA property
” following his
involvement in a fight with Lebakeng which took place on the
applicant’s premises on 25 September 2014.
The third respondent
pleaded not guilty to the charge and submitted that he did not fight.
Nonetheless, he was found guilty and
dismissed on 8 December 2014.
[6]
Disgruntled by the dismissal, the third respondent approached the
first respondent and referred an unfair dismissal dispute,
alleging
that he was unfairly dismissed. Consequently, the matter was set down
for arbitration proceedings which were held over
a period of two days
on 18 May 2015 and 2 July 2015. The procedural aspect of the
dismissal was not in dispute therefore the second
respondent was
called upon to determine only the substantive fairness of the
dismissal.
[7]
Dismissal was common cause therefore the applicant had the onus of
proving the fairness of the dismissal.
The
Commissioner’s award
[8]
The second respondent held in his award that it was clear from the
evidence that the third respondent and Lebakeng were not
in good
terms at all and that the applicant knew about this but did nothing
to avoid what ultimately turned into a fight or assault.
He further
held that, by going to Wiid who was the only senior available
at the time, to report Lebakeng, the third respondent
(applicant in
the CCMA) clearly indicated that he needed help and that he had no
intention of fighting or finding himself in an
assault or a fight
incident.
[9]
The second respondent further held that Wiid did not deny the version
of the third respondent that when he was busy trying to
undress and
change his clothes, Lebakeng opened the change room door. It was also
not denied that there were female interns in
the applicant’s
premises and the kitchen which is next to the change room, is used or
shared by staff.
[10]
The second respondent held further that the information as
determined, gives reasons to believe that the third respondent had
a
legitimate reason to be upset or to feel provoked and these issues
could lead to an altercation which ultimately sought the first
respondent’s intervention.
[11]
Neither Wiid nor Du Plessis saw how the altercation started as they
both found the two already fighting and exchanging blows.
The second
respondent found that it is highly possible that even though it was
alleged that the two were throwing punches at each
other when Wiid
and Du Plessis arrived at the scene, the altercation could have
started with an assault as alleged by the third
respondent. The
version of Wiid and Du Plessis becomes hearsay only in as far as to
who started the altercation.
[12]
The second respondent found that he was satisfied that the third
respondent had clearly demonstrated that he did not want to
fight by
reporting Lebakeng’s conduct to Wiid and that it was highly
likely that what Wiid and Du Plessis saw was a desperate
attempt to
repel the assault. The second respondent went further to find that he
was of the view that the third respondent at the
time, found himself
in a state of trying to fend off Lebakeng, which in that instance was
seen as a fight.
[13]
The second respondent was ultimately not convinced that the applicant
had discharged the onus that the third respondent was
guilty of
assault as he merely fended off blows. The second respondent found
that the dismissal of the applicant was substantively
unfair. The
latter awarded the third respondent retrospective reinstatement on
the same terms and conditions which existed prior
to the dismissal
and an amount of R152,000.00 which is equivalent to eight (8) months’
salary.
Grounds
for Review
:
[14]
The applicant submitted the grounds of review as follows:
14.1 The second
respondent had committed reviewable irregularity in that his award
does not comprise a decision
which a reasonable decision maker could
have reached as it is not rationally connected to and/or justifiable
in relation to the
evidence that was placed before him. The second
respondent did not apply his mind to the evidence.
14.2 The second
respondent failed to apply his mind to the material that was placed
before him thus his award
is grossly irregular.
14.3 The second
respondent completely ignored or disregarded evidence led by Wiid and
Du Plessis that they both
witnessed the third respondent and Lebakeng
actively fighting. In that regard, the second respondent failed to
appreciate the fact
that, quite apart from the issue of how the fight
started, the third respondent was engaged in a fight which continued
despite
pleas to refrain from such by the witnesses.
14.4 The second
respondent ignored or disregarded evidence led by Wiid and Du Plessis
that they both tried to
stop the third respondent and Lebakeng from
fighting and that the said parties only stopped when the applicant’s
security
guards were called to the scene.
14.5 The second
respondent erred in considering irrelevant issue of how and who
started the fight while at the
hearing and the charge was not about
who and how the fight started but whether the third respondent was
engaged in a fight.
14.6 The second
respondent erred by placing much weight on issues irrelevant to the
charge. In paragraph 41 of
the award, the second respondent says “
the
unfortunate thing about this matter was that, neither Wiid nor Du
Plessis saw the altercation from when it started. They both
testified
that they found Lebakeng and the third respondent already fighting
and exchanging blows”.
14.7 The second
respondent erred in placing much weight on issues that the third
respondent was busy trying to
undress and change his clothes when
Lebakeng opened the change room door and further that female interns
had access to the applicant’s
premises. He further pointed out
that the third respondent had a legitimate reason to be upset or to
feel provoked.
14.8 The second
respondent erred in disregarding the fact that the third respondent
admitted under cross-examination
that he knew that he and Lebakeng
were not supposed to fight.
14.9 The second
respondent erred in disregarding the fact that the third respondent
admitted that he saw and heard
Wiid and Du Plessis shouting at them
to stop fighting.
14.10 The second respondent
failed to apply his mind on the matter and that his award falls short
of what a reasonable commissioner
would have awarded, considering the
evidence placed before him in that he says “
this makes me
wonder, given the fighting or boxing skills he had, why he did not
run towards Du Plessis and Wiid for help because
they were there to
assist or stop the fight. But having said this, I find that it is
highly possible as well that even though it
was alleged that the two
were throwing punches at each other when Wiid and Du Plessis arrived
at the scene, that the altercation
could have started as was alleged
by the applicant”.
14.11 The second respondent
erred in considering the wrong position which was not before him when
he says in his award “
I am not convinced that the respondent
discharged the onus that Mr Motsamai was guilty of assault. He merely
fended off blows to
defend himself. Therefore I find that the
dismissal of Mr Motsamai ws substantively unfair”.
It was
never the case of the applicant that Mr Motsamai was guilty of
assault. That was not the charge he faced at the disciplinary
hearing.
Test
for review
:
[15]
The grounds for review for arbitration awards are stipulated in
Section 145 of the LRA. In the case of
Sidumo
and Another v Rustenburg Platinum Mines and Others
[2]
the Constitutional
Court held that section 145 is suffused by the constitutional
standard of “reasonableness”. The Court
in
Sidumo
subsequently confirmed that the standard of review is whether the
decision reached by the CCMA commissioner is one that a reasonable
decision maker could not reach. The Court in the case of
Shoprite
Checkers vs Ramdaw NO
[3]
held that public
power must be exercised rationally and therefore a decision made by a
public agency must be rationally related
to the purpose the decision
making power was given. In addition thereof
,
and in
CUSA
v Tao Ying Metal Industries and Others,
[4]
O'Regan J held:
‘
It is
clear…. that a commissioner is obliged to apply his or her
mind to the issues in a case. Commissioners who do not do
so are not
acting lawfully and/or reasonably and their decisions will constitute
a breach of the right to administrative justice.’
[16]
What
the Constitutional Court meant in
Sidumo
and
Tao
Ying Metal Industries
was a review test based on a comparison by a review court of the
totality of the evidence that was before the arbitrator as well
as
the issues that the arbitrator was required to determine, to the
outcome the arbitrator arrived at, in order to ascertain if
the
outcome the arbitrator came to was reasonable. This review test was
considered and applied in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others,
[5]
where the Court said the following:
‘
The
Constitutional Court has decided in
Sidumo
that the grounds of review set out in s 145 of the Act are suffused
by reasonableness because a CCMA arbitration award, as an
administrative action, is required by the Constitution to be lawful,
reasonable and procedurally fair. The court further held that
such an
award must be reasonable and if it is not reasonable, it can be
reviewed and set aside.’
[17]
As to what would be considered to be unreasonable, the Court in
Fidelity
Cash Management Service
held as follows:
[6]
‘
The
Constitutional Court further held that to determine whether a CCMA
commissioner's arbitration award is reasonable or unreasonable,
the
question that must be asked is whether or not the decision or finding
reached by the commissioner 'is one that a reasonable
decision maker
could not reach' (para 110 of the
Sidumo
case). If it is an award or decision that a reasonable decision maker
could not reach, then the decision or award of the CCMA is
unreasonable, and, therefore, reviewable and could be set aside. If
it is a decision that a reasonable decision maker could reach,
the
decision or award is reasonable and must stand. It is important to
bear in mind that the question is not whether the arbitration
award
or decision of the commissioner is one that a reasonable decision
maker
would
not reach but one that a reasonable decision maker
could
not reach….’
[18]
The Court in
Fidelity
Cash Management Service
then went further and formulated this outcome based review test which
the Court considered the
Sidumo
review
test envisaged, where the Court said:
[7]
‘
It seems to
me that there can be no doubt now under
Sidumo
that the reasonableness or otherwise of a commissioner's decision
does not depend - at least not solely - upon the reasons that
the
commissioner gives for the decision. In many cases the reasons which
the commissioner gives for his decision, finding or award
will play a
role in the subsequent assessment of whether or not such decision or
finding is one that a reasonable decision maker
could or could not
reach. However, other reasons upon which the commissioner did not
rely to support his or her decision or finding
but which can render
the decision reasonable or unreasonable can be taken into account.
This would clearly be the case where the
commissioner gives reasons
A, B and C in his or her award but, when one looks at the evidence
and other material that was legitimately
before him or her, one finds
that there were reasons D, E and F upon which he did not rely but
could have relied which are enough
to sustain the decision.
’
[19]
The Court in
Fidelity
Cash Management Service
then
concluded:
[8]
‘…
.
Whether or not an arbitration award or decision or finding of a CCMA
commissioner is reasonable must be determined objectively
with due
regard to all the evidence that was before the commissioner and what
the issues were that were before him or her. There
is no reason why
an arbitration award or a finding or decision that, viewed
objectively, is reasonable should be held to be unreasonable
and set
aside simply because the commissioner failed to identify good reasons
that existed which could demonstrate the reasonableness
of the
decision or finding or arbitration award.
’
[20]
What
the judgment of
Herholdt
v Nedbank Ltd and Another
[9]
means is simply that if the commissioner ignored material evidence,
and the review court in considering this material evidence
so ignored
together with the case as a whole, believes that the arbitration
award outcome cannot still be reasonably sustained
on any basis, then
the award would be reviewable. The Court again in this case
specifically considered the
Sidumo
test,
and concluded as follows:
[10]
‘
In summary
the position regarding the review of CCMA award is this: A review of
a CCMA award is permissible if the defect in the
proceedings fall
within one of the grounds in s 145(2)(a) of the LRA. For a defect in
the conduct of the proceedings to amount
to a gross irregularity as
contemplated by s 145(2)(a)(ii), the arbitrator must have
misconceived the nature of the inquiry or
arrived at an unreasonable
result. A result will 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 the weight
and relevance to be attached
to the particular facts, are not in and
of themselves sufficient for an award to be set aside, but are only
of consequence if their
effect is to render the outcome
unreasonable.
’
[21]
I am now, in view of all these cases laying the test for review,
inclined to intensively conduct a review enquiry in order
for me to
be in a better position to determine if irregularity, which warrants
the award to be set aside, occurred. I will then
interrogate the
evidence holistically presented before the second respondent in order
to establish if there is an irregularity.
If, in conducting this
enquiry, I find that there is no irregularity in the first place, the
matter is at an end, no further determinations
need to be made, and
the review must fail. However, should I find that a material
irregularity indeed exists, then the second step
in the review test
follows, which is a determination as to whether if this irregularity
did not exist, this could reasonably lead
to a different outcome in
the arbitration proceedings. If I were to put it differently, could
another reasonable decision-maker,
in conducting the arbitration and
arriving at a determination, in the absence of the irregularity and
considering the evidence
and issues as a whole, still reasonably
arrive at the same outcome? In conducting this second step of the
review enquiry, the review
court needs not concern itself with the
reasons the arbitrator has given for the outcome he or she has
arrived at, because the
issue of the arbitrator’s own reasoning
was already considered in deciding whether an irregularity existed in
the first part
of the test.
Analysis
of the evidence:
[22]
As far as the award is concerned, I find no reason to interfere with
the award and its reasoning. It is my finding, the second
respondent
has considered the evidence presented before him concerning the
actual issues, drew the reasonable inference and probabilities
that
any reasonable decision maker could have made and properly applied
the law. As stated above, the issue that the second respondent
was
called upon to determine was that of substance as the procedural
aspect was never placed in dispute. The second respondent
correctly
found that the dismissal of the third respondent was unfair and
awarded reinstatement and back pay. Once again, I do
not see why I
should be interfering with this determination.
[23]
The third respondent was charged with “
fighting at the
premises of AMSA”
. The third respondent denied having
engaged in any fight, nonetheless was subjected to a disciplinary
hearing where after he was
found guilty for fighting at the AMSA
premises and subsequently dismissed.
[24]
I am not going to deal with each and every ground of review raised by
the applicant but only those that will lead to a reasonable
conclusion to set aside the award or dismiss the review application.
In fact the issues to be determined in this case to take me
to a
reasonable and correct conclusion are pretty simple and straight
forward. These are few facts herein that when I look at them
very
closely, it is rather difficult to separate them in order to reach a
different conclusion to that of the second respondent.
These are the
facts relevant in this regard:
24.1
It is indeed common cause from the papers and transcript itself that
the third respondent had reported to
Wiid Lebakeng’s conduct
which he viewed unreceptive when Lebakeng opened the change room door
and left it wide open for outsiders
to see the naked third respondent
who was changing clothes. The change room is next to the kitchen used
by the staff. Wiid’s
response was that the third respondent
should ignore Lebakeng.
24.2
Wiid and Du Plessis attempted to separate the third respondent and
Lebakeng when the two were engulfed in
a physical fight. They failed
to do so until they resorted to calling security for assistance and
only then could the fight end.
24.3
There was no witness to testify as to who actually started the fight.
As it stands, the third respondent’s
testimony that Lebakeng
had started the fight, remained unchallenged as the only person who
can effectively challenge the third
respondent is Lebakeng and
Lebakeng was not called to testify.
24.4
The applicant’s two witnesses; Wiid and Du Plessis testified
that the third respondent and Lebakeng
were fighting, exchanging
blows to an extend that they failed to separate them whilst the third
respondent on the other hand denies
having fought with Lebakeng and
stated that he was only blocking the bunches.
[25]
The second respondent found that the applicant knew that the third
respondent and Lebakeng were not in good terms and did nothing
to
avoid what resulted in a physical fight. I am persuaded to deal with
issue with the next determination of the second respondent
when he
finds that the third respondent, by going to Wiid, clearly indicated
that he needed help and that he had no intention of
fighting.
The
second respondent considered and determined this probability in a
correct way and I can only concur with his determination.
If the
third respondent ultimately avers that Lebakeng started the
confrontation and then the fight, then I am persuaded to accept
this
as the third respondent attempted to report this to Wiid who was the
only senior at the premises, but in vain. In his own
terms, Wiid said
to the third respondent that he should ignore Lebakeng. Wiid in any
event confirmed having said this to the third
respondent.
[26]
The second respondent further finds that neither Wiid nor Du Plessis
saw the altercation from when it started. This is correct.
In terms
of Wiid and Du Plessis’ testimony, they found the two already
overwhelmed in exchanging fists that it was even difficult
to
separate them. This piece of evidence is married to the next one
which is the issue as to who started the fight. The second
respondent
found that the third respondent’s testimony that it was
Lebakeng who started the fight, remains unchallenged.
This is also
correct. The third respondent, during the arbitration, said “
the
guy is always starting fighting I don’t do fighting but I can
defend myself yes, that one I can do
”. Any reasonable
decision maker will be inclined to conclude that Lebakeng started the
fight as he is the only person who
can challenge the third
respondent’s version to that effect and he did not do so. This
is also supported by overwhelming
evidence that the third respondent
reported Lebakeng’s unpleasant conduct to Wiid but nothing much
came of it instead he
was advised to ignore Lebakeng.
[27]
Having determined that the second respondent’s analysis of
evidence is probable and reasonable, that Lebakeng had started
the
fight, that the third respondent had attempted to avoid the fight at
all cost, the next issue to determine is the pertinent
ground for
review raised by the applicant that the applicant was charged for
fighting at the AMSA premises and not who might have
started the
fight. Did the third respondent in fact engage in a fight with
Lebakeng or was he simply defending the punches that
came his way?
The second respondent’s determination in this regard was that
the third respondent found himself in a state
of trying to fend off
Lebakeng which was construed as a fight. If I were to find that the
second respondent misconstrued the probability
herein then I will be
inclined to determine whether the third respondent’s fighting
at AMSA’s premises is wrong and
a dismissible offence despite
every other piece of evidence.
[28]
I am, in any case, persuaded to deal with the charge as it stands. In
terms of the evidence led at the arbitration, there is
nowhere where
the applicant admits to having engaged in a fight (exchanging blows)
with Lebakeng. This then leaves the evidence
of the applicant’s
two witnesses that they both found the third respondent and Lebakeng
fighting each other and exchanging
blows. It is my determination that
whether the third respondent was indeed fighting as testified by Wiid
and Du Plessis or whether
he was fending off the punches from
Lebakeng as he testified, this is immaterial. After having considered
the evidence and after
having taken complete view, determination of
the evidence and sequence of events, I find that the sanction of a
dismissal was nevertheless
not warranted under the circumstances.
[29]
This then leads me to justification for fighting at work. An attack
on another employee in the absence of provocation would
serve as an
aggravating factor which ordinarily would significantly decrease the
chances of leniency in the imposition of a sanction.
This however is
different with the third respondent as the unchallenged evidence as
presented and admitted shows that Lebakeng
started the fight. Even if
it were to be accepted that the third respondent was also fighting
then his actions are justifiable
especially in view of the fact that
he attempted to get assistance from Wiid who was at the time a senior
available in the applicant’s
premises, but in vain. The
situation is exacerbated by the fact that evidence shows that
Lebakeng started the fight therefore the
third respondent had to
justifiably hit back. In the case of
Anglo
Operations Limited (Bank Colliery) v Tokiso Dispute Resolution (Pty)
Ltd and Others
[11]
the Court found that:
The
commissioner failed to apply his mind to the totality of the issues
and evidence before him in reaching his conclusions. Although
it is
not unreasonable
per se
in these circumstances to conclude
that dismissal was too harsh a sanction, and the reaction of the
employee is understandable
and one has sympathy for her, the award
must fall on the grounds of review set out. This leaves the issue of
the appropriate remedy
and in circumstances where it appears that the
record is substantially complete and all the issues have been
ventilated it would
be appropriate to substitute the award with an
appropriate order.
[30]
In applying the reasonable decision maker test there seem to be no
doubt that there is no need to interfere with the second
respondent’s
arbitration award, in this matter. The second respondent has executed
the judicial duties he conformed to and
reached a decision which
could have been reached by a reasonable decision maker, which
decision is reasonable. The analysis of
the reasoning and the
conclusion reached in this matter indicates that the second
respondent did not misconceive the task that
was before him and did
not commit fundamental mistakes of law. Ultimately, the evidence
clearly shows that the third respondent
did everything in his powers
to evade a fight. The second respondent seems to have correctly
understood the fundament rules of
evidence including the principles
governing mitigation and probabilities. Based on the considerations I
have set out above, I can
see no reason to interfere with the second
respondent’s decision to award the third respondent
retrospective reinstatement
and back pay as he did. Such award is
certainly consistent with the evidence and exercise of his judicial
discretion.
[31]
In the premises, I make the following order:
1.
The review application is dismissed with costs.
_______________________
MM
Ntsoane
Acting
Judge of the Labour
Court
of South Africa
Appearances
For
the Applicant:
Mr Zondo
Instructed
by:
Nozuko Nxusani
Inc
For
the Respondent:
Victor Tshabalala
Instructed
by:
Workers
Against Regression (WAR)
[1]
Act 66 of
1995
[2]
[2007] 12
BLLR 1097
CC
[3]
[2001] BLLR
1011 (LAC)
[4]
(2008)
29
ILJ
2461
(CC)
at
para 134.
[5]
(2008)
29 ILJ 964 (LAC) at para 96.
[6]
Id at para 97.
[7]
Id at para 102.
[8]
Id at para 103.
[9]
2013
(6) SA 224
(SCA);
[2013] 11 BLLR 1074
(SCA) per
Cachalia and Wallis JJA.
[10]
Id at para 25.
[11]
[2006] ZALC 77
(4
July 2006)
.