About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 431
|
|
Hoerskool Middleburg Governing Body v Commission for Conciliation, Mediation and Arbitration and Others (JR4/17) [2017] ZALCJHB 431 (24 November 2017)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: jR 4/17
In
the matter between:
HOËRSKOOL
MIDDLEBURG GOVERNING BODY
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION &
ARBITRATION
1
ST
Respondent
COMMISSIONER
SOLLY MASHEGO (
NO
)
2
ND
Respondent
KHOLEKILE CHRISTINA MAHLANGU
3
RD
Respondent
Heard
:
21 November 2017
Delivered
:
24 November 2017
Summary:
(Review – dismissal – selective treatment of evidence by
arbitrator – resulting in award
no reasonable arbitrator could
reach on the evidence – substitution of finding)
JUDGMENT
LAGRANGE
J
Background
[1]
This application was enrolled as an unopposed review application of
an arbitration award in which the arbitrator found that
the third
respondent’s dismissal was substantively unfair. The arbitrator
ordered the reinstatement of the third respondent.
The third
respondent, Ms K Mahlangu (‘Mahlangu’), did not file
opposing papers but did attend court and made submissions
in support
of upholding the award.
Narration
& Review
[2]
The dismissal arose out of an altercation which took place between
the third respondent and another employee, Ms R Maseko (‘Maseko’),
in the kitchen of the applicant’s boarding school.
[3]
Maseko was also disciplined and issued with a final written warning
but the third respondent was dismissed on account of threatening
Maseko with a knife. It was common cause that the third respondent
was holding a large knife in her hand in the course of the
altercation. She maintained that she had grabbed a knife in order to
defend herself against Maseko who also had a knife.
[4]
The review is essentially based on a critique of the arbitrator’s
handling of the evidence before him.
[5]
In essence, the arbitrator concluded that Maseko’s denial that
she had a knife in her hand was unconvincing as it amounted
to a bare
denial. The arbitrator also discounted the evidence of other
witnesses on the basis of their credibility and decided
that Maseko
had been the aggressor in the incident. In this regard, the
arbitrator relied in particular on the written statement
of the third
respondent. He gave no explanation for why Mahlangu was regarded as
credible and failed to consider the inherent probabilities
of the
respective versions.
[6]
He felt that it did not matter if one of the parties had a small
knife and the other a big knife during the incident. They were
both
brandishing knives and therefore both constituted a potential threat
to the learners at the school. It was inconsistent to
dismiss the
third respondent but to allow Maseko to continue working with a final
written warning.
[7]
It appears to be common cause that the altercation between the two
employees started outside the kitchen area but continued
when they
were both in the kitchen.
[8]
There was evidence to the effect that Maseko also briefly had a small
knife in her hand but that she put the knife down and
picked up a
packet of (uncooked) macaroni, which she said she intended to throw
at the third respondent to defend herself. Mahlangu
herself also
confirmed Maseko had the macaroni in her hand. The arbitrator decided
that there was a possibility that Maseko had
grabbed a knife first.
Having decided this, the arbitrator in his reasoning converted this
possibility into a near certainty and
in so doing ignored not only
the third respondent’s own statement, which indicated that she
had been the first to grab a
knife, but also the evidence of other
witnesses.
[9]
There was no dispute that the knife wielded by the third respondent
was a substantial knife used for cutting pumpkin and large
pieces of
meat. There was also no dispute on the evidence that the other
persons who sought to intervene in the altercation
were mainly
concerned with restraining the third respondent who retained
possession of the large knife even after Maseko was only
defending
herself with a packet of macaroni.
[10]
I agree with the applicant that the Commissioner did not attempt to
determine the most plausible or natural version of events
but
effectively contrived to adopt the least plausible interpretation of
the events. Moreover, the Commissioner ignored the evidence
of events
preceding the confrontation which pointed to the third respondent as
the aggrieved party who was in an excited emotional
state when she
approached Maseko. He further bolstered his argument by speculative
reasoning about the credibility of the witnesses,
which was never put
to those witnesses. In addition, the arbitrator concluded that Maseko
was the aggressor based wholly on averments
in Mahlangu’s
written statement which were never put to Maseko when she testified
at the arbitration hearing. The arbitrator’s
approach in
evaluating the evidence was so selective and skewed that it is
difficult to view it as a
bona fide
attempt to assess the
evidence in a neutral and balanced fashion.
[11]
Had the arbitrator not been so selective and slanted in his
evaluation of the evidence, he could not reasonably have concluded
that Maseko was the aggressor rather than acting defensively, or that
the seriousness of Mahlangu’s conduct was indistinguishable
from Maseko’s.
[12]
In the circumstances, I am satisfied that the arbitrator’s
finding that the dismissal of the third respondent was substantively
unfair should be substituted with a finding that her dismissal was
substantively fair, given that she had to be restrained by others,
her emotional state, the danger the knife she was wielding posed and
the fact that this took place in a learning institution where
children boarded.
Order
[1]
The arbitration award of the second respondent dated 21 November 2016
issued in case number
MP 8080-16 is reviewed and set aside insofar as
the arbitrator found that the third respondent’s dismissal was
substantively
unfair and in ordering relief.
[2]
The arbitrator’s finding that the third respondent’s
dismissal was substantively
unfair is substituted with a finding that
her dismissal was substantively fair.
[3]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
G
Jordaan of the Applicant
THIRD
RESPONDENT:
In
person