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[2017] ZALCJHB 382
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Sibanye Gold Limited v Solidarity obo Bezuidenhout and Others (JR2016/14) [2017] ZALCJHB 382 (12 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR2016/14
In
the matter between:
SIBANYE
GOLD LIMITED
Applicant
and
SOLIDARITY
obo BEZUIDENHOUT, WG.
First Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
KHUMALO,
B
N.O.
Third Respondent
Heard
:
25 May 2017
Delivered
:
12 October 2017
JUDGMENT
RABKIN-NAICKER,
J
[1]
This is an opposed application to review an
Arbitration Award under case number GAJB 25885-13-14. The third
respondent (the Commissioner)
found that the applicant had committed
an unfair labour practice in relation to demotion and ordered the
applicant to ‘reinstate’
the first respondent into the
position of boilermaker foreman as from 1 August 2014. He
further awarded the first respondent
twelve months compensation. The
compensation was calculated as R2986.63 per month constituting what
was considered to be the average
difference in remuneration the first
respondent would have earned as a boilermaker foreman during the
material period.
[2]
The first respondent was employed in the position
of an underground acting boilermaker foreman (supervising engineering
boilermaker)
for 22 years. From the 13 August 2012 he was appointed
to the position of boilermaker foreman. The dispute before the
Commissioner
pertained to whether this appointment was or became a
permanent appointment or not. On 22 July 2013 the first
respondent
was told that he would revert back to the position of
boilermaker and lodged a grievance.
[3]
On
1 September 2012, the first respondent signed a letter
dated 13 August 2012 which set out
inter
alia
“…in terms of section 7(4) of the Mine Health and Safety
Act no. 29 of 1996
[1]
(MHSA)
read with Regulation 29.2., you are hereby appointed as Vertical
Boilerman foreman at Driefontein Consolidated, Business
Unit 3, for
Bambisani, Rethabile, Khomanane and North Shaft with effect from the
1 September 2012”.
[4]
The letter did not specify working hours or
remuneration nor did it refer to a promotion. Monthly ‘Employee
Movement Forms’
in respect of the first respondent were issued
by the applicant on a monthly basis which stipulated that the
‘temporary movement’
was an ‘acting’ movement
from the position of “UG Plater” to Supervisor
Engineering Boilermaker UG”
(boilermaker foreman) and would be
accompanied with a salary adjustment from grade “C1” to
grade “C4”.
[5]
On 9 July 2013 the first respondent
applied for a position being internally advertised for “Supervisor
Engineering
Boilermaker” at the “C-Upper” job
grading. He was interviewed for the position on 18 July 2013
and
was not recommended for the said position.
[6]
During the period in question the first
respondent had received pay slips which recorded his designation as
that of “underground
platter” at the “C1”
grade and that his remuneration method was that of “Miner
Artisan” The pay slips
also reflected that he received an
“acting non pensionable allowance.”
[7]
The Commissioner found that a policy entitled
“Conditions of Employment Booklet Officials Employed at Sibanye
Gold Limited’
(the Policy), applied to the first respondent. As
the sole witness for the applicant at the arbitration Wagner, the
Manager of
the first respondent, was asked under cross-examination
whether he appointed the first respondent as an acting official and
whether
that was ‘similar’ to what is stipulated in 2.1
of the Booklet. Wagner read out the definition and said he was just
trying to understand what it means. He was then asked:
“
MR
VILJOEN: Is that a position to which you have appointed him, an
acting official?
MR
WAGNER: That is correct.
[8]
In terms of the Policy definition clause an:
“2.1
‘Acting Official’ means an Employee who is functioning in
an Official’s post where a vacancy exists
but no incumbent has
been appointed or who is doing the work of an Official of higher rank
who is temporarily absent from work.”
[9]
It is submitted on behalf of the applicant that
the Commissioner did not apply his mind to its contention throughout
the arbitration
that the Policy did not find application to the first
respondent. This, it submits, was because specifically because the
first
respondent was not “remunerated in terms of the Gross
Remuneration Package (GRP) remuneration method”.
Evaluation
[10]
The Policy defines ‘employee’ as
follows:
“’
Employee’ for the
purpose of this document, unless the context clearly indicates
otherwise, means a person employed by an
Employer as an Employee in
paid permanent service, whose job falls within the Officials’
recognition unit and who is paid
according to the GRP remuneration
method.
[11]
Reading Clause 2.1 with the definition of
‘employee’ it is evident to the Court that for the first
respondent to be
considered ‘an acting official’ he would
have had to fall within the recognition unit for Officials and to
have been
remunerated in accordance with the annual package
applicable to them. The evidence before the Commissioner as far as
pay slips
were concerned showed that the first respondent was
remunerated on the ‘Miner Artisan’ remuneration method
and not
the GRP package whether annual or monthly.
[12]
The Commissioner failed to properly apply his
mind to the content of the Policy relying instead on the
interpretation of Wagner
as referred to above.
[13]
A further issue taken up by the applicant in its
review grounds is the fact that it was common cause that the first
respondent during
July 2013 applied for a permanent position
similar to that in which he was acting. The record reflects the
following:
“
MR
BOTES: ….If you have been promoted to boilermaker foreman, why
did you respond to this advert?
MR
BEZUIDENHOUT: My engineer told me to apply and as I have already said
I was taken out of my positions without my knowledge.
MR
BOTES: But Mr Bezuidenhout, did you ask your engineer, “Why
must I attend an interview for a foreman position if I am already
appointed as a foreman?”
MR
BEZUIDENHOUT: No, no, I did not.
MR
BOTES: Why not?
MR
BEZUIDENHOUT: No reason.”
[14]
As stated above, Bezuidenhout was told that he
would revert to his normal position on 23 July 2013, after
he applied for
the said similar permanent position on 9 July 2013.
[15]
The submissions on behalf of the first respondent
that the Commissioner could only rely on
viva
voce
evidence and not submissions in deciding
the applicability of the Policy to the first respondent, is
misguided. The Policy
was central to the first respondent’s
case at arbitration and was documentary evidence before the
Commissioner. The interpretation
of the Policy was something the
Commissioner was enjoined to apply his mind to. It was not reasonable
for a decision-maker to accept
Wagner’s understanding of one
clause without applying his mind to the legal submissions before him,
and the clause itself
read in context.
[16]
The case for the first respondent made by his
union was that his acting stints amounted to a promotion and that the
Policy applied
to him. The Commissioner’s finding that this was
indeed so, and that he had been demoted from that position, is a
decision
a reasonable decision-maker could not have made. On all the
material before the Commissioner, no unfair labour practice relating
to demotion occurred. The result of the Award, one of ‘reinstatement’
and an erroneous computation of back-pay, is
in addition outside the
bounds of reasonableness.
Order
[17]
I therefore make the following order:
1.
The Award under GAJB 25885-13-14 is reviewed and
set aside and substituted as follows:
1.1 “The application is
dismissed”.
_____________________
H. Rabkin-Naicker
Judge of the Labour Court of South
Africa
Appearances:
Applicant:
Advocate Mpumi Nkanyeza
Instructed by:
Solomon Holmes Attorneys
First
Respondent:
G.J Visser of SOLIDARITY
[1]
This section records that “…an employer may appoint any
person with qualifications as may be prescribed to perform
any
function of the employer in terms of this Act.”