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[2017] ZALCJHB 465
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Karan Beef (Pty) Ltd v ITU obo Zwane and Others (JR630/16) [2017] ZALCJHB 465 (11 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: JR 630/16
In
the matter between:
KARAN
BEEF (PTY)
LTD
Applicant
and
ITU
obo PETRUS ZWANE
First Respondent
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
Second Respondent
COMMISSIONER
MARGARET SMITH
N.O
Third Respondent
Heard:
9 November 2017
Order:
9 November 2017
Reasons:
11 December 2017
JUDGMENT
WHITCHER, J:
[1]
The
applicant is in the business of producing and wholesaling beef
products and employed Zwane as a driver until his dismissal on
29 September 2015.
[2]
In
May 2015, the first respondent referred a dispute to the
Commission for Conciliation Mediation and Arbitration (CCMA) in
which
it sought to obtain organisational rights at the applicant’s
City Deep Operation. At the arbitration held on 8 September 2015
Zwane gave evidence on behalf of the first respondent and Mr Loots,
the applicant’s Group Human Resources Manager, gave evidence
on
behalf of the applicant.
[3]
Following
the arbitration hearing, he was dismissed on the basis of the
following charges of misconduct:
(i)
“
Gross
dishonesty in that you deliberately gave false evidence at the CCMA
hearing on 8/9/2015 to influence the CCMA commissioner
to rule
against the company.
(ii)
Bringing
the company name into disrepute.
[4]
The
applicant alleged that Zwane falsely testified that there were 200
employees at the Applicant’s City Deep operation and
maintained
this position throughout the arbitration. He also falsely told the
commissioner that the applicant did not have a forum
in which the
employees could voice their grievances and other issues and that the
applicant did not address the employees’
grievances. The
applicant contended that Zwane led this evidence, despite the
applicant having held monthly and weekly meetings
to discuss the
employees’ grievances and having resolved a number of these
grievances.
[5]
On
9 November 2017, I dismissed the review application to set
aside the third respondent’s arbitration award (GAJB20312/15)
in which she essentially found that the applicant had failed to prove
the charges levelled against Zwane and ordered his reinstatement,
with back-pay. These are my reasons, based on the applicant’s
own version of events and its record of the arbitration held
on
8 September 2015.
[1]
[6]
At the
conciliation meeting held on 26 May 2015 in respect of the
organisational rights dispute, Mr Loots, the applicant’s
Group
Human Resources Manager, informed Zwane that the applicant’s
City Deep operation and Balfour operation constitutes
the applicants’
workplace and that the applicant had approximately 200 employees at
its City Deep operation. When Zwane testified
three months later at
the arbitration, he told the commissioner that the applicant had 200
employees at its City Deep operation
and he had obtained this
information from the applicant at the conciliation meeting. He
further testified that the figure of 200
could not have changed
because according to his knowledge no employee had died or had been
dismissed since the conciliation.
[7]
However,
when it was put to Zwane that [three months later] the figure stood
at 234, Zwane stated:
“
I would dispute nothing
because I do not employ, he does employ”.
[8]
In this
response Zwane effectively told the commissioner that he is not in a
position to dispute the applicant’s claim that
the number of
employees had increased. He effectively conceded that the applicant
was in a better position to furnish the correct
figures.
[9]
In light of
this evidence, it was not unreasonable for the Commissioner to find
that the applicant had failed to prove that Zwane
“was
dishonest in that he gave evidence that there are 200 employees at
the Applicant’s City Deep operation and maintained
this
position throughout the arbitration”.
[10]
The
further charge also proved to be baseless. Zwane testified that the
employees
joined
the union because they did not have “any outlet or forum”
where they could voice their issues;
the
workers are
voiceless
as there is nobody representing / talking on their
behalf
and
the applicant
disregards
their grievances.
[11]
This
testimony is rather vague and ambiguous and cannot reasonably be read
as a clear denial that the applicant has monthly meetings
with its
employees to discuss grievances. Moreover, Zwane’s testimony
was not given in circumstances where the applicant
had already placed
its assertion
[2]
on record and/or where the assertion had been put to the Zwane during
his evidence-in-chief or cross-examination.
[12]
In
any event, it’s not impermissible or unusual for labour and
management to disagree on what constitutes a proper forum to
air
grievances. The same goes for the resolution of grievances - whether
they are satisfactorily resolved can be a matter of opinion
and not
subject to an absolute right or wrong view.
[13]
I conclude
that it was not unreasonable for the Commissioner to find that the
applicant had failed to prove that Zwane “was
grossly
dishonest” when he testified at the organisational rights
arbitration.
Order
[14]
In the
premises, the following order is made:
1.
The review
application to set aside the third respondent’s arbitration
award (GAJB20312/15) is dismissed.
____________________________
B. Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the applicant:
Edward Nathan Sonnenbergs Inc
For
the first respondent:
Inqubelaphambili
Trade Union (ITU)
[1]
As set out in its founding
affidavit.
[2]
That it provides a forum in the form of monthly
meetings for employees to air their grievances.