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[2017] ZALCJHB 334
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Madzunye v Maila NO and Others (JR762/15) [2017] ZALCJHB 334 (14 September 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR 762/15
In
the matter between:
NTHATHENI
SOLLY MADZUNYE
Applicant
and
DAVIS
MAILA
N.O
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION (CCMA)
Second Respondent
NBC
COAL
Third
Respondent
Heard:
31 August 2017
Delivered:
14 September 2017
Summary:
Review application. Applicant’s case is that the arbitrator
ignored a material fact and did not weigh the probabilities.
Award is
reasonable. Award is not reviewed and set aside
.
JUDGMENT
PRINSLOO,
J
Introduction
[1]
The Applicant seeks to review and set aside
an arbitration award issued on 21 September 2014 wherein the First
Respondent (the arbitrator)
found his dismissal substantively fair.
[2]
The Third Respondent (NBC or the employer)
opposed the application.
Background
facts
[3]
The background facts are briefly as
follows:
[4]
NBC employed the Applicant on 16 March 2009
as an artisan boilermaker. In March 2014 the Applicant faced a charge
of assault and
the charge sheet reflected that the charge related to
an incident of 13 February 2014 where the Applicant assaulted or
attempted
to assault another employee in the tea room. The Applicant
was dismissed on 14 April 2014 after he was found guilty of
misconduct.
[5]
The Applicant, represented by the National
Union of Mineworkers (NUM), referred an unfair dismissal dispute to
the Second Respondent
(CCMA) and only the substantive fairness of his
dismissal was challenged.
The
arbitration proceedings:
[6]
During the arbitration proceedings the
employer called five witnesses and the Applicant testified and called
one witness. The assessment
of the merits of the grounds for the
review raised by the Applicant calls for a consideration of the
evidence that was adduced.
The
evidence adduced
[7]
The employer’s first witness was its
risk control officer, Mr Paul Coetzer (Coetzer) who conducts
investigations and compile
reports on the findings and conclusions of
such investigations. He testified that in terms of NBC’s
disciplinary code and
procedure the appropriate sanction for assault
or attempted assault is dismissal, even for a first offence.
[8]
Coetzer testified that he investigated the
incident of 13 February 2014 and he compiled a report with his
findings. Coetzer summarised
his findings during his testimony and
stated that another employee, Mr Dumisani Jele (Jele) lost his
cellular phone, whilst it
was in fact retrieved by his fellow
workers, and after Jele went through a lot of trouble to cancel his
sim card to ensure that
his phone could not be used, the said phone
was given back to him in the tea room or kitchen area during the
lunch break. This
is where the trouble started as Jele then attacked
and slapped another employee, Balanganani Munzhelele (Bala), whilst
he was sitting.
The Applicant attacked Jele and in the end NBC
dismissed Jele and the Applicant for assault.
[9]
Coetzer referred to photographs during his
testimony and explained that the one photograph depicted Bala where
he was slapped on
the right ear by Jele, other photographs depicted
the Applicant’s shirt as it was torn by Jele and the injuries
he sustained
on his left elbow and left upper eyelid. Other
photographs showed the injuries sustained by Jele when he was
attacked by the Applicant
and those included an injury to Jele’s
left elbow, his back and his neck, which showed that Jele was
strangled with force.
[10]
In cross-examination Coetzer explained that
on 13 February 2014 three people were assaulted namely Bala, Jele and
the Applicant
and they were all sent for medical examination at the
Arnot Medical Station and they were examined by Dr Mako. The South
African
Police Services (SAPS) however took Jele to another hospital
to obtain a J88. Coetzer received Jele’s medical report and it
showed that he was assaulted on his back, his elbow and that his neck
was strangled. Jele assaulted the Applicant by hitting him
on his
left eye and scratching his elbow but according to the medical report
there were no visible injuries on Bala and the Applicant.
[11]
Coetzer was asked how he found that the
Applicant started to assault Jele, as stated in his investigation
report, and he explained
that Jele told him so and it was confirmed
by witnesses who saw the incident. He further compiled the report
based on the statements
made to the SAPS and the medical reports.
Coetzer explained that although Jele sustained some of his injuries
at the sink, he did
not sustain it by himself as he sustained those
injuries whilst in a fight with the Applicant.
[12]
Jele was the employer’s second
witness and he testified that on 13 February 2014 his cellular phone
disappeared and after
he called his phone number, somebody answered
and said that he was Mr van der Merwe in Middelburg and that he would
not return
Jele’s phone. After Jele struggled to block his sim
card, Bala called him and he went to the kitchen where Bala was and
he
found his missing cellular phone on the table where Bala was
sitting. At that point he did not know that it was his cellular phone
and Bala asked Jele if he wanted his phone, upon which Jele responded
that he thought his phone was with Mr van der Merwe in Middelburg.
Jele asked Bala if he was Mr van der Merwe and why he was making a
fool of him. Bala responded that Jele was a fool and in turn
he
slapped Bala twice. Jele testified that as he was looking at his
phone the Applicant slapped him from behind and pushed him
towards
the wall. Jele explained that he was upset by the fact that Bala
called him a fool and testified that he was not upset
in respect of
the Applicant. Jele slapped Bala because they made him go up and down
looking for his phone when they should have
told him where his phone
was.
[13]
Jele testified that he defended himself and
that the Applicant grabbed him by the throat and punched him in the
face. Ben intervened
and he stopped the fight.
[14]
In cross-examination Jele testified that
the Applicant slapped him in his face, grabbed and chocked him on his
throat and hit him
from behind. Jele conceded that he hit the
Applicant and explained that he wanted to escape and when he could
not, he defended
himself and hit the Applicant when he realised that
the Applicant was seriously fighting with him. The Applicant called
Jele a
fool before the fight started. Jele conceded that he slapped
Bala and explained that he did so as he wanted his phone, which was
with Bala and he had no reason or intention to hit the Applicant.
Jele conceded that he hit the Applicant with a fist whilst the
Applicant pushed him towards the wall.
[15]
Jele testified that there were six people
inside the kitchen area when the fight started. He explained that
Phindi went with him
to the kitchen and she was standing at the sink
when the fight started and she observed the entire fight.
[16]
Jele went to see a medical doctor after the
fight and the doctor gave him a letter to show where he got injured.
He testified that
the Applicant pushed him to the sink and it was put
to Jele that he injured himself on his back and elbow while he was
fighting
with the Applicant. Jele responded that if the Applicant did
not push him to the sink he would not have been injured.
[17]
During Jele’s cross-examination the
arbitrator observed that Jele did not deny that he assaulted Bala and
that there were
no further consequences for Jele to admit this as he
had been dismissed for that.
[18]
It was put to Jele that the Applicant
grabbed him as he refused to stop the fight and to stop him from
slapping Bala. Jele denied
this and testified that he fought with the
Applicant because the Applicant was the one fighting with him. He
explained that if
the Applicant’s intention was to stop the
fight and to separate Jele and Bala, the Applicant would not have
slapped him and
pushed him to the wall and if the Applicant wanted to
separate them, he would have stopped the fight as it happened when
Ben separated
them.
[19]
The employer’s third witness, Mr
Lekwa (Lekwa), is a plant maintenance supervisor and the Applicant
reported directly to him.
He testified that on 13 February 2014 the
Applicant and Bala came into his supervisor’s office to report
that they had been
attacked by Jele. When Lekwa enquired from the
Applicant as to what happened, the Applicant said he was not there to
talk to him,
he was only there to notify Lekwa’s supervisor
that they were going to report the matter to the human resources
department.
[20]
Lekwa subsequently spoke to Rose, Phindi,
Nathi and Aaron Kekana to ascertain what happened and Rose told him
that the Applicant
and Jele were fighting and that Bala was sitting
whilst the fighting took place. Phindi told him that she was warming
food and
there was a conversation between the Applicant, Jele and
Bala and that Jele slapped Bala and that the Applicant moved from the
sink to punch Jele and that they wrestled all over the place. Nathi’s
version was the same as Phindi’s.
[21]
Lekwa explained that Bala was not dismissed
as the investigation showed that Bala was beaten but he did not
respond and did not
get into the fight.
[22]
Lekwa testified that fighting and assault
are not allowed in the workplace. The Applicant cannot work for the
employer again as
he cannot be trusted. He was an employee
representative and leader and he should be the creator of peace and
stability in the workplace
and he acted contrary to the example that
he should be setting to employees.
[23]
In cross-examination it was put to Lekwa
that much of his evidence was hearsay evidence as he was not present
when the fight broke
out and Lekwa conceded this.
[24]
Bala testified on behalf of the Applicant
and explained that on 13 February 2014 he called Jele to pick up his
phone and Jele came
to him where he was sitting at the table and he
showed Jele his phone. Jele started talking but Bala did not respond,
instead the
Applicant responded and told Jele where his phone was and
what happened. Jele slapped him whilst he was sitting and after the
third
slap the Applicant moved from the sink and grabbed Jele so that
he could stop hitting him. The Applicant grabbed Jele and pushed
him
to the wall and Jele hit the Applicant with his fist. Jele and the
Applicant were holding each other and Bala called Ben to
separate
them. Jele and the Applicant pushed each other from the wall to the
sink where Ben finally separated them. Ben separated
them by grabbing
and holding the Applicant. Bala testified that the Applicant did not
hit Jele.
[25]
Bala testified that Jele was angry when he
came to him and he was not interested in the explanation the
Applicant was giving him.
Bala said that the Applicant helped him as
he did not know how many times Jele would have hit him and when he
was going to stop.
[26]
In respect of the scratches on Jele’s
body Bala explained that the scratches might have been caused by the
Applicant when
he grabbed Jele by his neck and pushed him to the wall
or when they pushed each other to the sink.
[27]
In cross-examination it was put to Bala
that his testimony was purely to defend the Applicant as he was
unable to explain why Ben
held the Applicant instead of Jele and why
the Applicant strangled Jele instead of holding him if he was
intending to stop the
fight.
[28]
The Applicant testified that on 13 February
2014 they finished eating and he was washing the dishes whilst Bala
and Aaron were sitting
at the table. Bala said to Jele “here is
your phone” and Jele asked him if he was Mr van der Merwe and
explained that
he had been looking for his phone for a long time and
had blocked his sim card. The Applicant tried to explain to Jele what
happened
to his phone and that he could unblock his sim card. He was
facing the sink and washing dishes when he heard a slap. When the
Applicant
looked, he saw Jele slapping Bala for the second time and
he rushed from the sink to Bala when Jele slapped him for a third
time.
When the Applicant tried to intervene to stop the fight, Jele
hit him with a fist on his eye and he decided to grab Jele as Jele
was fighting with him.
[29]
The Applicant testified that he was unable
to see Jele because he was hit on his eye and he tried to grab Jele
but it was difficult
as he could not see and Jele has pulled his
t-shirt over his head. He managed to grab Jele and they wrestled and
went from the
wall to the sink. Ben came to separate them by holding
the Applicant.
[30]
The Applicant testified that he did not
assault anyone, instead he was assaulted when he tried to help and to
stop the fight. In
respect of the scratches Jele had on his body, the
Applicant explained that Jele could have sustained those injuries
when he tried
to stop him to fight with Bala and they ended up
wrestling around the kitchen as Jele wanted to fight with him.
[31]
In cross-examination the Applicant
explained that he grabbed Jele after Jele had hit him on the eye and
he then rushed towards Jele
and grabbed him, but insisted that he did
not know on which part of the body did he grab Jele. The Applicant
testified that he
did not know the difference between grabbing
somebody around his shoulders, neck or arm and he insisted that he
cannot feel the
difference between a person’s neck or
shoulders. It was put to the Applicant that his own witness, Bala,
testified that Jele
sustained the scratches because the Applicant
grabbed him around his neck.
The
arbitrator’s findings
[32]
In the arbitration award the arbitrator has
set out the evidence adduced by the witnesses in great detail. In his
analysis of the
evidence and arguments, the arbitrator identified the
issue to be decided as whether the Applicant’s dismissal was
substantively
fair as procedural fairness was not in dispute.
[33]
The Applicant was dismissed for assault
and/or fighting at the workplace on 13 February 2014. The arbitrator
considered the evidence
and recorded that the Applicant’s
version is that he intervened to stop Jele from assaulting Bala, that
he did not assault
or fight with Jele but instead he was the victim
as Jele also assaulted him. The arbitrator accepted that Jele started
the fight
by assaulting Bala and Jele was dismissed for that. Bala
did not fight back when assaulted by Jele.
[34]
The arbitrator identified the key issue as
whether the Applicant assaulted or fought with Jele or whether he did
not fight or assault
Jele but was rather the victim of Jele’s
assault.
[35]
The arbitrator rejected the Applicant’s
case that he was a victim of assault and he based this finding on the
evidence of
Jele, as corroborated by photographs and the J88 medical
report, which were consistent with Jele’s version that the
Applicant
grabbed him by the throat and pushed him to the wall, hence
Jele’s injuries on his back, neck and left elbow. The
arbitrator
further found that the injuries sustained by the Applicant
on his left eyebrow is also consistent with Jele’s testimony
that
he hit the Applicant in defending himself.
[36]
The arbitrator analysed the facts and found
that it is not clear why the Applicant joined the fight as the
dispute was between Jele
and Bala. The medical reports indicated that
both Jele and the Applicant sustained injuries consistent with people
who were fighting.
The evidence indicated that Jele and the Applicant
assaulted each other and therefore they fought in the workplace,
which is in
terms of the employer’s disciplinary code, a
dismissible offence.
[37]
The arbitrator found the Applicant’s
dismissal substantively fair and in line with the employer’s
disciplinary code.
Analysis
of the arbitrator’s findings and grounds for review
[38]
The Applicant filed a founding affidavit of
46 pages, of which 27 pages dealt with the evidence adduced during
the arbitration proceedings,
which is unnecessary as the arbitration
award and the transcribed record would reflect the evidence adduced.
The grounds for review
as raised by the Applicant in his founding
affidavit, are that the arbitrator committed a gross irregularity in
the arbitration
proceedings and that he made a decision that a
reasonable decision maker would not have made based on all the
material evidence
placed before him.
[39]
I
have to deal with the merits of the review application within the
context of the test that this Court must apply in deciding whether
the arbitrator's decision is reviewable. The test has been set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
as whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach.
The
Constitutional Court clearly held that the arbitrator's conclusion
must fall within a range of decisions that a reasonable decision
maker could make.
[40]
The
Labour Appeal Court in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2]
affirmed the test to be applied in review proceedings and held that a
piecemeal approach should not be followed. It was held that:
‘
In
short: A reviewing court must ascertain whether the
arbitrator considered the principal issue before him/her;
evaluated
the facts presented at the hearing and came to a conclusion
that is reasonable.
………
In
a review conducted under s 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 process related
irregularity sufficient to set aside the award. This piecemeal
approach of dealing with the arbitrator's award is 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.
To do it differently or to evaluate
every factor individually and independently is to defeat the very
requirement set out in s 138
of the LRA which requires the arbitrator
to deal with the substantial merits of the dispute between the
parties with the minimum
of legal formalities and do so expeditiously
and fairly.’
[41]
This Court, sitting as a review Court,
should not follow a piecemeal approach but should consider whether
the arbitrator dealt with
the substantial merits of the case and
whether holistically viewed, the decision was reasonable based on the
evidence that was
adduced.
[42]
It is in this context that the grounds for
review raised by the Applicant must be decided.
[43]
The Applicant’s case is that the
arbitrator did not apply his mind to the issues before him, thus
rendering the outcome unreasonable.
This is so, according to the
Applicant, as he did not assault and / or fight with Jele, he only
pushed Jele back in order to prevent
him from assaulting Bala, who
was not fighting back, he was the chairperson of the union in the
plant and as a reasonable and responsible
shop steward, he simply
wanted to stop the fight, instead he was assaulted. The Applicant’s
case is that the arbitrator failed
to have regard to relevant
evidence and over emphasized the wording of the employer’s code
of conduct.
[44]
In the heads of argument filed on behalf of
the Applicant it is argued that the arbitrator misconceived the true
nature of the enquiry
as the true issue was whether the Applicant
grabbed Jele before or after Jele had hit the Applicant on his eye.
The Applicant’s
argument is that he intended to come between
Jele and Bala at which stage Jele hit him on his eye and he then
proceeded to grab
Jele to restrain him. Jele’s evidence on the
other hand was that he had hit Bala and recovered his phone where
after the
Applicant grabbed him by his throat and in response, Jele
hit the Applicant on his eye.
[45]
The Applicant’s case is that the
arbitrator failed to consider a material fact when he failed to
consider that the Applicant
fended off the assault of Jele. The
arbitrator did not weigh up the probabilities, which is fatal to the
award. The Applicant submitted
that the general probabilities
favoured his version.
[46]
In summary the Applicant’s case is
that the arbitrator misconceived the true nature of the enquiry, that
he failed to consider
that the Applicant did not fight with or
assault Jele and that he did not weigh up the probabilities.
[47]
The arbitrator identified the question he
had to consider as whether the Applicant assaulted or fought with
Jele or whether he did
not fight or assault Jele but was rather the
victim of Jele’s assault. In my view the arbitrator correctly
identified the
key question to be decided and there is no merit in
the allegation that the arbitrator misconceived the true nature of
the enquiry.
[48]
The arbitrator asked the right question in
deciding the substantive fairness of the Applicant’s dismissal.
[49]
The evidence shows that the Applicant
grabbed Jele around the throat with considerable force and pushed him
to the wall. This was
confirmed by witnesses and the J88 medical
report. The arbitrator considered all this evidence and concluded
that the Applicant
was not the victim of an assault, but that Jele
and the Applicant sustained injuries consistent with people who were
fighting,
that they both assaulted each other and that it is a
dismissible offence in terms of the employer’s disciplinary
code.
[50]
There is no merit in the Applicant’s
ground for review that the arbitrator failed to consider a material
fact when he failed
to consider that the Applicant did not fight with
or assault Jele, but was the victim of assault. It is evident from
the arbitration
award and the arbitrator’s findings that he
indeed considered this and made a finding based on the evidence
rejecting the
Applicant’s version.
[51]
The last ground for review is that the
arbitrator did not weigh up the probabilities. It is evident from the
arbitration award that
the arbitrator identified the two conflicting
versions namely whether the Applicant assaulted or fought with Jele
or whether he
was the victim of Jele’s assault and provided
reasons why he rejected the version that the Applicant was the victim
of assault.
The arbitrator rejected the victim scenario because
photos, the J88 report and evidence showed that the Applicant grabbed
Jele
by the throat and pushed him to the wall and they both sustained
injuries consistent with people assaulting each other.
[52]
It may be so that the arbitrator could have
dealt with the inherent probabilities in more detail, but it is not
for this Court to
take a piecemeal approach and evaluate every factor
and every piece of evidence and to consider how the arbitrator dealt
with it.
It is rather to consider whether the arbitrator dealt with
the substantial merits of the case and whether holistically viewed,
the decision was reasonable based on the evidence that was adduced.
Brevity in the reasons provided by the arbitrator does not
per
se
render the award unreasonable or
reviewable.
[53]
The ultimate question is whether
holistically viewed, the decision taken by the arbitrator was
reasonable based on the evidence
placed before him.
[54]
Having considered the evidence adduced at
the arbitration proceedings, the findings made by the arbitrator and
the grounds for review
as raised by the Applicant, I cannot find that
the arbitrator failed to apply his mind to the evidence or ignored
material facts
or evidence or that he failed to weigh up the
probabilities that presented themselves in the versions before him.
[55]
The arbitrator's findings and conclusion
fall within a range of decisions that a reasonable decision maker
could make based on the
evidence adduced and the Applicant failed to
make out a case for the review of the arbitration award.
[56]
The award and the findings contained
therein are reasonable and are not to be interfered with on review.
[57]
I canvassed the issue of costs with Mr
Molotsi appearing for the Applicant and Mr Maeso appearing for the
Third Respondent. They
both argued that the costs should follow the
result and I can see no reason to disagree.
[58]
In the premises I make the following order:
Order
1.
The application is dismissed with costs.
______________
Connie
Prinsloo
Judge
of the Labour Court
Appearances:
Applicant:
Advocate H Molotsi
Instructed
by:
Mvundlela Attorneys
Third
Respondent:
Mr M G Maeso of Shepstone Wylie
Attorneys
[1]
(2007) 28
ILJ 2405 (CC) at para 110.
[2]
(2014) 35
ILJ
943 (LAC).