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[2017] ZALCJHB 353
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Kaefer Energy Projects (Pty) Ltd v MEIBIC and Others (JR697/14) [2017] ZALCJHB 353 (22 September 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
No:JR 697/14
In
the matter between:
KAEFER
ENERGY PROJECTS (PTY) LTD
Applican
t
and
CDR
OF THE MEIBIC
First
Respondent
COMMISSIONER
D LEVY
N.O
Second
Respondent
NUMSA
Third
Respondent
ZACHARIA
RAMOTEBELE
Fourth Respondent
Heard:
10 August 2017
Delivered
:
22 September 2017
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the second respondent (the arbitrator) on 25 March
2013. In
his award, the arbitrator found that the applicant had failed to
establish that the fourth respondent was guilty of the
misconduct for
which he had been dismissed and that he ought accordingly to be
reinstated into the position in which he was employed
immediately
prior to his dismissal.
[2]
The material facts are recorded in the arbitration award under review
and I do not intend to repeat them here. It is sufficient
to note for
present purposes that the fourth respondent was employed by the
applicant on the Medupi project. He was dismissed on
charges of
participation in unprotected industrial action, possession of a
dangerous weapon, and wilful damage to property. The
charges followed
an incident of unprotected industrial action that occurred during
July 2013.
[3]
The first witness to testify for the applicant, Mr Mayrhofer, stated
that on 24 July 2014, he arrived at the site before 6 am.
He saw the
applicant walk past him, on his way to the change room. He thought it
strange that the applicant was not wearing his
personal protective
equipment but had on a short-sleeved brown T-shirt. At about 7 am,
Mayrhofer was engaged in what is referred
to as a ‘toolbox
talk’ when he heard shouts and sounds of scuffling. He saw a
group of employees of another contractor,
Murray and Roberts, engaged
in what appeared to be industrial action. He watched the proceedings
until the group became violent
at which point he left.
[4]
Importantly for present purposes, Mayrhofer acknowledged that he did
not see the fourth respondent himself taking part in any
industrial
action or committing any of the other acts of misconduct with which
the fourth respondent was charged. Mayrhofer’
s evidence
placing the fourth respondent on the scene was given only by
reference to a video recording which was played at the
arbitration
hearing. Mayrhofer identified an individual on the recording as the
fourth respondent. The person was wearing a brown
T-shirt and had a
balaclava over his head. Mayrhofer stated that he was able to
identify him on account of the T-shirt and his
gait. The person
identified was part of a group of employees attempting to overturn a
vehicle.
[5]
The second witness, Mr Jean Oosthuizen, gave evidence of a polygraph
test conducted on the fourth respondent on 16 September
2013. The
fourth respondent was asked whether he had participated in the
industrial action and whether he had participated in acts
of
misconduct. In the witness’s view, there was a significant and
consistent indication of deception.
[6]
The third witness, a Mr Kobus de Wet, testified that a significant
number of people that been identified using the video recordings
that
had been made on the day in question and other people he had
interviewed had generally agreed that they were the persons
identified in the recordings. The fourth respondent’s evidence
was that he had arrived in the early morning of 24 July 2013,
wearing
his orange T-shirt with long sleeves, blue trousers with reflective
strips and safety boots. He changed into his PPE top
and put on his
white helmet, went to the toolbox talk at about 6:50 am. He left
after the commotion by the Murray and Roberts employees,
went back to
the change room, took off his jacket and put on his t shirt and stood
at the village gate for about five minutes.
He saw angry people
throwing stones. A white man in a bakkie stopped and offered him a
lift. They left the site and he was dropped
off on the road to
Marapong. He did not clock out on account of the tension that had
prevailed.
[7]
In his award, the arbitrator comes to the following conclusions:
Apart
from the uncorroborated testimony of the site manager that the
individual identified in the video recording was wearing a
brown
T-shirt identical to the one worn by the fourth respondent when he
saw him earlier that morning, there is nothing to connect
the fourth
respondent to the individual in the video recording. The fourth
respondent denies that the individual was him and denies
that he was
wearing a brown T-shirt that day. I personally would describe the
colour of the T-shirt worn by the individual and
the recording is
dark grey rather than brown, but this too is open to interpretation.
I must therefore conclude that the video
recording does not
incriminate the fourth respondent.
[8]
The arbitrator went on to consider what amounted to circumstantial
evidence on which the applicant relied. First, he observed
that the
fourth respondent had failed to clock out which it was alleged, was
indicative of his wishing to remain unaccounted for.
Secondly, as a
shop steward, the fourth respondent would not have left the site
truly as he had an obligation as a shop steward
to provide guidance
to his members. Third, the fourth respondent, unlike other employees
who identified on the video, failed to
confirm that it was him shown
in the video.
[9]
The arbitrator concluded that this evidence was not, in his opinion,
nearly strong enough to warrant a conclusion, even on the
balance of
probabilities, that the fourth respondent was carrying a dangerous
weapon or that he damaged property. He said the following
“
at
a stretch, it might indicate that he was present during the
industrial action (as were hundreds of others), but it is not clear
that being present during industrial action equates to participation
in the industrial action
.”
[10]
In relation to the polygraph test results, the arbitrator concluded
the following:
Finally,
the polygraph test results indicate strongly that they were
significant and consistent indications of deception in the
fourth
respondent responses to the questions put to him during the
examination. Based on this test, the fourth respondent is guilty
of
all the charges other than the charge of carrying a dangerous weapon.
However the polygraph test is not accepted by South African
cultures
evidence which, on its own, can determine a person’s guilt.
Therefore, while the outcome of the polygraph test indicates
unambiguously that the fourth respondent participated in and
protected industrial action, damaged property and threw stones at
security personnel, I cannot find the fourth respondent guilty of
committing the offences that he was charged with, on the basis
of
these findings alone.
[11]
The primary ground of review concerns the arbitrator’s
assessment of the evidence. In essence, the applicant contends
that
the arbitrator’s reasoning is flawed in that the first witness,
Mayrhofer, had given direct evidence of the fourth respondent’s
attendance on site, his participation in the unlawful industrial
action, and the fact that he had not clocked out. In the founding
affidavit filed in support of the present application, the deponent
says the following:
Not only was the evidence given by the
witness on behalf of the applicant , Mr R Mayrhofer (‘Mayrhofer”)
that he was
able to identify the fourth respondent but Mayrhofer also
gave evidence that the fourth respondent was ‘
involved with
a group of employees that were attempting to overturn a vehicle’
.
There was, therefore, direct evidence of Mayrhofer that the fourth
respondent was involved in the unlawful industrial action and
that he
was involved in the damage to property.
[12]
The applicant contends that there was no basis to reject the evidence
of Mayrhofer together with the corroborative evidence
in relation to
the fourth respondent’s attendance on the day, his
participation and his failure to discredit Mayrhofer in
any way. Of
some significance, so contends the applicant, is the fourth
respondent’s defence of a bare denial. He called
no witnesses
to support his version. His explanation in the light of the
overwhelming evidence against him stood to be rejected.
In short, the
applicant contends that the arbitrator did not properly assess the
evidence with the result that the findings to
which he came were
accordingly not sustainable with the result that the conclusion to
which he came was not reasonable.
[13]
The applicable legal principles are well-established. 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
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)). In other words, the test is two-staged. First, the
applicant must establish a misconception of the nature of the enquiry
or some misconduct or misdirection on the part of the arbitrator. If
that is established, 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.
[14]
In
Gold Fields Mining SA (Pty) Ltd v CCMA
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC)), The Labour Appeal Court noted that a review court is not
required to take into account every factor individually, consider
how
the arbitrator treated and dealt with each factor and then determine
whether a failure by the arbitrator to deal with one on
more factors
amounted to a process related irregularity sufficient to set aside
the award. The court cautioned against adopting
a piecemeal approach
since a review court must necessarily consider the totality of the
available evidence (at paragraph 18 of
the judgement). Specifically,
the questions for a review court to ask or whether the arbitrator
gave the parties a full opportunity
to have their say in respect of
the dispute, whether the arbitrator identified the issue in dispute
that he was she was required
to arbitrate, whether the arbitrator
understood the nature of the dispute, whether he or she dealt with a
substantial merits of
the dispute and whether the decision is one
that another decision maker could reasonably have arrived at based on
the evidence
(see paragraph 20). So, when arbitrator fails to have
regard to the material facts it is likely that he or she will arrive
at a
decision that is unreasonable. Similarly, where an arbitrator
fails to follow proper process he will see may produce an
unreasonable
outcome. But, as the court emphasised, this is to be
considered on a totality of the evidence and not on a fragmented,
piecemeal
analysis (at paragraph 21).
[15]
In the present instance, in effect, the arbitrator came to the
conclusion that the applicant had failed to discharge the onus
to
establish that the fourth respondent had committed the misconduct
with which he had been charged. He did so by first considering
the
direct evidence presented by way of the video recording. His
conclusion that the fourth respondent could not be identified
in
video recording and that the recording did not incriminate the fourth
respondent is not unreasonable. It is clear from the record
that
Mayrhofer himself was unable unequivocally to identify the fourth
respondent in the recording. His evidence amounted to no
more than an
assertion that upon watching the video footage, ‘we’
managed to identify the fourth respondent by reference
to his build
and gait, and his clothing. Mayrhofer did not directly observe the
fourth respondent during the industrial action
and that was only
later, on watching the video footage, that he identified him. Even
then, as he said in his evidence:
We can only go on the way that Mr.
Ramotebele was walking that morning, his build, his heart and the way
he walks as well as the
clothes that he is wearing.
[16]
Having concluded that the video footage and Mayrhofer’s
uncorroborated evidence was insufficient to place the fourth
respondent on the scene, the arbitrator then considered the
circumstantial evidence that had been proffered by the applicant.
This included what it averred to be a failure to clock out (as
indicative of the fourth respondent wishing to remain and unaccounted
for); secondly, that the fourth respondent was a shop steward would
not have left the site on account of his obligations to the
union’s
members and fifth, that the fourth respondent, unlike other employees
identified on the video, failed to confirm
that it was him shown in
the video. The arbitrator concluded that this evidence was
insufficient to warrant a conclusion on the
balance of probabilities
that the fourth respondent was carrying a dangerous weapon all that
he damaged property at most, it served
indicated that he was present
during the industrial action but not that he participated in it. That
left the polygraph test results
and as the arbitrator stated, these
in themselves were an insufficient basis to find that the fourth
respondent was guilty of committing
the offences with which he was
charged.
[17]
In coming to these conclusions, the arbitrator was obviously aware of
the competing version, uncorroborated as it was, put
up by the fourth
respondent. It may well be that the arbitrator’s
compartmentalised approach to the evidence was not the
preferred
manner to engage with it, and that he ought to have viewed the
evidence as a whole. It may even be that another reasonable
decision-maker would have come to a different conclusion on the same
facts, and been persuaded that on a totality of the evidence,
the
fourth respondent was present at and participated in the industrial
action. But that does not mean that the award is reviewable.
The
applicable threshold admits a range of responses to the evidence. By
definition, there is no single correct outcome. The fact
remains that
Mayrhofer’s evidence was not as unequivocal as the applicant
seeks to suggest and that having failed to establish
the fourth
respondent’s presence on the scene, the circumstantial evidence
against him was insufficient in itself to prove
any of the charges
against him. It should further be recalled that ultimately, the whole
onus of proof rested on the applicant
– it was not for the
fourth respondent to disprove his presence at the scene of the
industrial action. In short, I am not
persuaded that the arbitrator’s
award, having regard to the evidence before him, was so unreasonable
that no reasonable decision-maker
could come to the conclusion he did
on the available evidence.
I
make the following order:
1. The application
is dismissed.
2. There is no order
as to costs.
_________________
André
van Niekerk
Judge
REPRESENTATION
For
the applicant: Mr B Bleazard
For
the third and fourth respondents: Union official