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[2017] ZALCJHB 356
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Sasol Synfuels v NBCCI and Others (JR1900/14) [2017] ZALCJHB 356 (20 September 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
C
ase no: JR1900 /14
In
the matter between:
SASOL
SYNFUELS
Applicant
and
NBCCI
First Respondent
NP
LUCWABA
N.O
Second Respondent
CEPPWAWU
obo ZEPH HLATSHWAYO
Third Respondent
Heard
:
8 August 2017
Delivered
:
20 September 2017
JUDGMENT
VAN
NIEKERK J
[1]
The applicant seeks to have an arbitration award issued by the second
respondent (‘the arbitrator’) reviewed and
set aside. In
his award, the arbitrator held that the third respondent’s
dismissal was substantively unfair, and ordered
his reinstatement
with retrospective effect.
[2]
The third respondent was dismissed for having contravened the
applicant’s disciplinary code in that he failed to follow
safety rules by allowing two employees to put their heads into a
class B (high risk) vessel, potentially containing lethal gases,
without wearing the required safety masks. The photographs that form
part of the record reveal that the vessel is a massive tank-like
structure. The incident occurred during a shut down in March 2012.
The two employees referred to (reflected in the award as Vernon
and
Vukile) were employees of a contractor, Kentz, who were contracted to
conduct work in the vessel.
[3]
The evidence of Harris, the applicant’s production area
manager, was that he saw Vernon and Vukile place their heads inside
the vessel. He was some 7 to 8 meters from the vessel, with clear
vision. He stated further that both Vernon and Vukile had later
admitted to him that they had placed their heads in the vessel, and
said that they had made a mistake. The manhole through which
they had
stuck their heads was fully open. The third respondent was standing
behind the two employees and observed them place their
heads in the
vessel without the necessary protective masks. The third respondent’s
evidence was, in effect, that neither
Vernon nor Vusikile had placed
their heads in the vessel.
[4]
The core of the arbitrator’s finding is to be found in
paragraphs 52 to 53 of the award. I do not intend to repeat that
finding here, save to note that the arbitrator finds that the third
respondent contradicted himself on at least one occasion (in
relation
to the permit given to Harris) and that Vernon had also contradicted
himself in relation to the location of a gas meter
at the time of the
incident (see paragraph 52 of the award). However, the arbitrator did
not consider these contradictions to be
material. In relation to the
crucial issue of whether or not the two Kentz employees put their
heads inside the vessel, the arbitrator
records the mutually
destructive versions given by Harris and Vernon Ervin respectively.
He rejects Harris’s evidence on
the basis that the nature of
the vessel was such that ‘
I do not believe that anyone would
be able to look up or down once their head is inside the manhole
.’
Secondly, Vernon said that he did not know either the third
respondent or Harris prior to the day of the incident. The
arbitrator
reasoned that ‘
This means that he had nothing to gain from
coming all the way from Durban to lie for the applicant
.
Trevor
on the other hand could argue that he had no reason to want to get
rid of the applicant but his actions on the day spoke
volumes.
’
[5]
The arbitrator concluded that Harris was ‘targeting’ the
third respondent and that his version was therefore improbable.
On
this basis, the arbitrator made the finding that it was more probable
that the two Kentz employees had not put their heads inside
the
vessel and concluded that the third respondent had not committed the
offence with which he was charged.
[6]
The applicant’s grounds for review are directed against the
arbitrator’s evaluation of the evidence. In particular,
the
applicant contends that the arbitrator failed properly to apply his
mind to the relevant evidence and that had he done so,
he would have
concluded that the applicant had presented sufficient evidence to
justify the third respondent’s dismissal.
Secondly, the
applicant submits that the arbitrator failed properly to consider the
evidence presented by the applicant’s
witnesses to the effect
that it would not be appropriate for the third respondent to be
reinstated into his employment. Thirdly,
the applicant contains that
given the material dispute of facts that served before the
arbitrator, he failed properly to assess
the credibility of the
witnesses and to determine the probabilities as he was required to
do.
[7]
This court is entitled to interfere with an award made by a
commissioner if and only if the commissioner misconceived the nature
of the enquiry (and thus denied the parties a fair hearing) or
committed a reviewable irregularity which had the consequence of
an
unreasonable result. The applicant contends for the latter, on the
basis reflected above.
[8]
In
Coega Development Corporation (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration
(2016) 37
ILJ
923
(LC), Myburgh AJ noted that where an arbitrator is required to
resolve a factual dispute, the arbitrator is required to undertake
a
balanced assessment of the credibility, reliability and probabilities
associated with the evidence (see
Sasol Mining (Pty) Ltd v
Ngqeleni NO & others (
2011) 32
ILJ
723 (LC)).
Arbitrators are obliged to weigh all of the relevant evidence and
probabilities before drawing inferences and making
findings (see
paragraph [65] of the judgment, and in particular the reference to
Minister of Safety and Security & another v Madikane &
others
(2015) 36
ILJ
1224 (LAC)). However, the failure by
an arbitrator to attach particular weight to evidence or attachment
of weight to the relevant
evidence and the like is not in itself a
basis for review; the resultant decision must fall outside of a band
of decisions to which
reasonable decision-makers could come on the
same material (see
Herholdt v Nedbank Ltd
[2013] 11 BLLR 1074
(SCA)).
[9]
The Labour Appeal Court recently affirmed this principle and held
that while the failure of an arbitrator to apply his or her
mind to
issues which are material to the determination of a case will usually
be held to be an irregularity, before the irregularity
will result in
the setting aside of the award, it must in addition reveal a
misconception of the true enquiry or result in an unreasonable
outcome (see
Head of Dept. of Education v Mofokeng
[2015] 1
BLLR 50
(LAC), at paragraph 30). In other words, while a failure
properly to assess the evidence is indicative of an unreasonable
outcome,
whether a decision is unreasonable in its result ultimately
requires this court to consider whether apart from the flawed reasons
of or any irregularity by the arbitrator, the result could still be
reasonably reached in the light of the issues and the evidence.
[10]
I deal first with the basis on which the arbitrator rejected Harris’s
evidence. The arbitrator’s finding that he
could not believe
that anyone would have been able to look up or down once their head
was placed inside the manhole, is simply
not supported by the
evidence. The documentary evidence clearly suggests that the manhole
is of a significant size, certainly sufficient
to allow a person to
place their head inside the vessel. To the extent that the arbitrator
suggests that Vernon had nothing to
gain by coming all the way from
Durban to lie for the third respondent, he fails to take into
consideration that by the same logic,
because Harris did not know
Vernon, he had nothing to gain from fabricating a version to the
effect that Vernon placed his head
in the manhole, an offence which
would invariably lead to Vernon’s dismissal. The obvious reason
and motive for Vernon to
testify that he did not put his head into
the vessel, was his own self-interest. Further, to the extent that
the arbitrator reasoned
that because Harris had failed to call
Labuschagne on the day of the incident or to enquire after the person
on standby, that this
necessarily led to a ‘reasonable
conclusion on a balance of probabilities’ that Harris was
‘targeting’
the third respondent, this finding ignores
the uncontested evidence that Harris did not call Labuschagne because
he had not seen
him on that day. Further, the version that
Harris was targeting the third respondent had never been put to
Harris for a response.
On the other hand, in his cross-examination,
the third respondent testified that while he and Harris had sometimes
argued about
work-related matters, there was no personal animosity
between them. The arbitrator’s finding to the effect that there
was
a personal and concerted campaign by Harris to victimise the
third respondent, the primary basis on which he rejected the
applicant’s
version, thus had no basis in the evidence before
him – indeed, it was a version disavowed by the third
respondent.
In short, none of the reasons for
rejecting Harris’s evidence are sustainable when one considers
the evidence as a whole.
[11]
The arbitrator was faced with a material dispute
of fact. Harris testified that he saw Vernon and Vukile place their
heads through
the fully open manhole, and look up and down the
interior of the vessel. He also testified that the third respondent,
in response
to his question why he had allowed the vent to occur,
stated that he had tested for gas and that it was safe. When he asked
to
see the permit and noted that it was a B class permit that
required the wearing of a safety mask, he stopped work. Vernon and
Vukile
admitted to him that they had placed their heads in the
manhole, and to having made a mistake. The third respondent denied
that
either Vernon or Vukile had placed their heads inside the
vessel, and testified that the in any event, the positioning of the
manhole
cover would have precluded them from doing so. Faced with so
stark a dispute of fact, the arbitrator was obliged to have adopted
the approach employed by courts for resolving factual disputes. This
is set out in
Stellenbosch Farmers’ Winery Group Ltd
& Another v Mortell et Cie & Others,
2003 (1) SA 11
and
encompasses three main considerations - the credibility of the
witnesses, their reliability,
and the
probabilities. The arbitrator failed to undertake this enquiry, and
thus failed to view the evidence cumulatively, with
reference to the
probabilities overall. This constituted a misdirection on his part.
[12]
The next stage of the enquiry is to determine whether notwithstanding
the arbitrator’s misdirections, the award is capable
of rescue
by reason of its reasonableness having regard to the evidence. In my
view, it is not. It is more probable than not that
the two Kentz
employees placed their heads in the vessel, as observed by Harris, to
see the demister pads and under the assumption
that a gas reading had
been taken and that the manhole cover had been open for some time.
Harris had no reason to manufacture a
version that would falsely
accuse the third respondent and both Kentz employees. When he
determined that the vessel was a class
B vessel and that the
applicable safety measures had not been met, he reported the
incident.
[13]
Harris’s evidence must be seen in the context that it was
common cause that the demister pads could not be seen without
being
inside the drum of the vessel or placing one’s head inside the
drum, that it was a requirement that a person entering
the drum wear
a safety mask, that the third respondent was responsible for
controlling entry into the vessel, that the vessel was
a class B
vessel (i.e. with a high degree of risk on account of the
possibility of the presence of gas), and that the third
respondent
was aware of the applicable safety protocol.
[14]
The record discloses that for the most part, the version of events
proffered by the applicant’s witnesses was left unchallenged,
and much of the third respondent’s version was not put to the
applicant’s witnesses. For this reason alone, the third
respondent’s version stands to be called into question. The
only reasonable conclusion to be reached on the evidence is that
the
third respondent committed the act of misconduct with which he was
charged, and that in terms of the applicable policy, dismissal
was
the appropriate penalty. The third respondent contravened a safety
code and endangered the lives of two contractors. The award
accordingly stands to be reviewed and set aside.
[15]
Finally, in so far as costs are concerned, the court has a broad
discretion to make orders for costs according to the requirements
of
the law and fairness. The court does not ordinarily make costs orders
in disputes involving collective bargaining parties, and
I see no
reason to depart from that convention.
I
make the following order:
1.
The arbitration award issued by the second
respondent on 15 August 2014 under case number MPCHEM 286-12/13 is
reviewed and set aside.
2.
The award is substituted by the following:
‘
The
applicant’s dismissal was substantively and procedurally fair.’
_________________
Andre
van Niekerk
Judge
APPEARANCES
APPLICANT:
Mr D Pretorius, Fluxmans Attorneys
THIRD
RESPONDENT: Mr I Shongwe, Shongwe Attorneys