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[2018] ZALCJHB 35
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Bosal Afrika (Pty) Ltd v NUMSA obo Mawelela and Others (JR839/2011) [2018] ZALCJHB 35 (8 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JR 839/2011
In
the matter between:
BOSAL
AFRIKA (PTY)
LTD
Applicant
and
NUMSA
obo ITUMELENG MAWELELA
First Respondent
ADVOCATE
PC
PIO
Second Respondent
THE
DISPUTE RESOLUTION CENTRE
Third Respondent
Heard:
25 April 2017
Delivered:
8 February 2018
JUDGMENT
MAHOSI.
AJ
Introduction
[1]
This is an application in terms of section 145
of
the Labour Relations Act (LRA)
[1]
for
an order reviewing and setting aside an arbitration award issued by
the second respondent (arbitrator) acting under the auspices
of the
third respondent Dispute Resolution Centre (DRC), on 31 March 2011
under case reference number MIPT10101 in terms of which
the
arbitrator found that the dismissal of Itumeleng Mawelela (the
employee) was procedurally and substantively unfair.
[2]
The key question is whether, by finding that the applicant should
have followed an incapacity procedure instead of misconduct
procedure, the arbitrator’s decision is one which a reasonable
decision maker could not reach.
The
parties
[3]
The applicant is Bosal Africa (Pty) Ltd, a company incorporated in
terms of the laws of the Republic of South Africa. It
manufactures
automotive accessories.
[4]
The first respondent is the National Union of Mine Workers (NUMSA), a
registered trade union acting on behalf of the employee.
[5]
The second respondent is Advocate P.C. Pio who is cited in these
proceedings as a commissioner of the third respondent.
[6]
The third respondent the DRC, is a statutory body registered and
formed in terms of the LRA.
Background
[7]
The applicant employed the employee as a bender from 2004. At the
time of his dismissal, the employee was paid a salary of R3784.45
per
month. On 21 June 2010, the employee was issued with a notice to
attend a disciplinary enquiry that was scheduled for 24 June
2010.
The charge against the employee was as follows:
‘
Violation
of company rules 6.5 Regular Sickness Absence (Non Mandatory)
alternatively 10.11 Pattern of unacceptable behaviour (Non
Mandatory). In that you have been frequently off work, developing
unsatisfactory time keeping and/or pattern of unacceptable behaviour’
[8]
At the end of the disciplinary enquiry, the employee was dismissed.
As a result, the employee referred a dispute of unfair dismissal
to
the DRC. The dispute was conciliated unsuccessfully before it could
proceed to arbitration. The arbitration was held on 25 January
2011
and 10 March 2011. At the end of the arbitration, the arbitrator
found that the dismissal of the employee was both procedurally
and
substantively unfair. The arbitrator ordered the applicant to
retrospectively reinstate the employee to a position he occupied
prior to his dismissal. The arbitrator further ordered the applicant
to pay the employee back pay, amounting to R34060.05. Dissatisfied
with the arbitrator’s award, the applicant lodged this
application.
Arbitration
award
[9]
The evidence relevant to the issues in question was summarised by the
arbitrator in his award as follows:
‘
a)
The applicant has a history of warnings for absenteeism and poor
timekeeping, but at
the time of his dismissal all these warnings had
lapsed.
b)
The applicant was off sick on various occasions. In fact, in a period
of 30 months
the applicant was off sick on 59 days.
c)
During 2009 the applicant had exhausted his sick leave and had to
take a company
loan to survive.
d)
On all the occasions when the applicant was off sick, except for one
occasion
when he had visited the traditional healer, the applicant
submitted valid medical certificates to substantiate his absence.
e)
On the issue of the traditional healer, the applicant’s area
supervisor,
Mr Petros Magudu, conceded that the applicant’s
visit to the traditional healer took place with his consent.
Traditional
healers are also recognised as medical doctors for
purposes of sick leave by the respondent.
f)
During the period in question, the applicant regularly visited the
in-house company
sister who immediately referred him to medical
doctors.
g)
During 2009 the applicant was diagnosed with a urological problem. As
a result,
the applicant underwent surgery and spent some time in
hospital. According to the applicant he had spent two periods in
hospital
as the problem reoccurred. The respondent's witnesses were
not aware of the second period.
h)
The urological problem cleared up in 2009, but the applicant’s
tendency
to take sick leave did not stop as a result, as the
applicant continued to be booked off sick for various ailments by
various doctors.
i)
Mr Magudu testified that applicant’s regular absence was very
disruptive
on the production line as a replacement had to be found
for the applicant on every occasion he failed to report. According to
Mr
Magudu, the respondent had lost R1.4 million due to delays in
production. Mr Magudu testified that the applicant contributed to
the
delay in production. The applicant disputed that his absence had
caused any disruption. In fact, the applicant was abhorred
by any
notion that this irregular absence contributed in any way to a loss
in production.
j)
During the first six months of 2010 the applicant was again off sick
for
9 days. Apparently this was seen by the respondent as the
proverbial last straw and resulted in the applicant being charged and
dismissed.
k)
The applicant was not charged for poor timekeeping. However, after
the applicant's
conviction at the disciplinary enquiry, allegations
of poor timekeeping were levelled at the applicant during the stage
when submissions
of aggravating factors were entertained by the
chairperson. These allegations were also taken into account when the
decision to
dismiss was made.
l)
The allegations of poor timekeeping were part of the respondent’s
case against the applicant at the arbitration hearing. The respondent
submitted a document reflecting the applicant clocking times
into
evidence. The applicant denied the allegations of poor timekeeping
and testified that the discrepancies in his clocking were
inter
alia
caused by Metro rail strike that affected the majority of
the workforce.
m)
The applicant has not secured alternative employment and seeks
reinstatement.’
[10]
In his analysis, the arbitrator took the view that, any employer
could dismiss any employee who disrupts its operation by being
absent
from work for an unreasonable period of time provided the procedure
stipulated in Item 10 of Schedule 8
[2]
of the LRA was followed.
[11]
In this case, the arbitrator acknowledged that the employee was
dismissed for misconduct. The arbitrator was of the opinion
that, as
a matter of principle, an employee could never commit misconduct by
taking sick leave. He took a view that the applicant’s
attempt,
in its rules, to elevate the taking of valid sick leave to misconduct
did not change the principle. From this premise,
he found that the
nature of the dispute before him was dismissal based on incapacity
and not misconduct.
[12]
The arbitrator dismissed the applicant’s argument that the
employee could not prove that he was genuinely incapacitated
as
stated in his referral on the basis that it was artificial. He
further dismissed the applicant’s reliance on the allegations
of timekeeping to substantiate the employee’s dismissal on the
basis that it was not an allegation he (the employee) had
to meet at
the disciplinary enquiry. This is evident from his award where he
states as follows:
‘
Although
there is a reference to poor timekeeping in the charge, evidence
regarding the discrepancies in his clocking was tendered
in order to
secure a conviction. Had the applicant been acquitted at the
disciplinary hearing (which would have been the correct
final outcome
on the evidence that was before the chairperson), the allegations of
poor timekeeping would never have surfaced’
[13]
The arbitrator arrived at the conclusion that this was a case where
procedural and substantive fairness could not be dealt
with
separately as procedural fairness directly impacted on substantive
fairness. The arbitrator found that the applicant should
have
followed the incapacity procedure as provided for in Item 10 of
Schedule 8 of the LRA. As a result, he found that the employee’s
dismissal was both procedurally and substantively unfair. It is this
finding that the applicant seeks to challenge.
Grounds
of Review
[14]
The applicant challenged the arbitrator’s award on various
grounds which may effectively be summarised to two grounds.
The first
ground is that the arbitrator failed to take into
account pertinent evidence of misconduct, which
resulted in his
failure to appreciate the true nature of the enquiry before him and
thus leading in the applicant not being afforded
a fair hearing.
This, the applicant argued, rendered the arbitration award
unreasonable and reviewable.
[15]
The second ground is that the arbitrator exceeded his powers by
finding that the employee’s dismissal was both procedurally
and
substantively unfair when procedural fairness was not in dispute.
Applicable
law and analysis
[16]
The arbitration awards are reviewable in terms of section 145 of the
LRA, which provides that any party to a dispute who alleges
a defect
in any arbitration proceedings under the auspices of the Commission
may apply to the Labour Court for an order setting
aside the
arbitration award. Section 145(2) defines a defect as the
commissioner’s misconduct in relation to the duties of
the
commissioner as an arbitrator, gross irregularities in the conduct of
the arbitration proceedings, exceeding the commissioner's
powers or
improperly obtaining an award.
[17]
The test for review which has been authoritatively stated by the
Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
was reiterated in
Herholdt
v Nedbank Ltd and Congress of South African Trade Unions
[4]
as follows:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls in one of the grounds in s 145(2)(a) of the LRA.
For a defect in the conduct of the proceedings to amount to
gross
irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must
have misconceived the nature of the enquiry or arrived
at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach on all
the material that
was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached to particular
fact, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their effect is
to render the outcome
unreasonable.’
[5]
[18]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[6]
the
Labour Appeal Court (LAC) stated as follows:
‘
[17]
The fact that an arbitrator committed a process-related irregularity
is not in itself a sufficient ground for interference
by the
reviewing court.
The fact
that an arbitrator commits a process-related irregularity does
not
mean that the decision reached is necessarily one that a reasonable
commissioner in the place of the arbitrator could not reach.
[18]
In a review conducted under s145(2)(a)(c) (ii) of the LRA, the review
court is not required to take into
account every factor individually,
consider how the arbitrator treated and dealt with each of those
factors and then determine
whether a failure by the arbitrator to
deal with one or some of the factors amounts to process-related
irregularity sufficient
to set aside the award. This piecemeal
approach of dealing with the arbitrator’s award is improper as
the review court must
necessarily consider the totality of the
evidence and then decide whether the decision made by the arbitrator
is one that a reasonable
decision-maker could make.’
[19]
In
Head
of the Department of Education v Mofokeng and Others
[7]
the
LAC confirmed
Herholdt
and
Mofokeng
and
held as follows:
‘
The
failure by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually be
an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in
Herholdt v Nedbank Ltd
and
this court in
Goldfields Mining
South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
others
have held that before such an 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.
[20]
The LAC further held as follows:
‘
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the inquiry.
In
the final analysis, it will depend on the materiality of the error or
irregularity and its relation to the result. Whether the
irregularity
or error is material must be assessed and determined with reference
to the distorting effect it may or may not have
had upon the
arbitrator’s conception of the inquiry, the delimitation of the
issues to be determined and the ultimate outcome.
If but for an error
or irregularity a different outcome would have resulted, it will
ex
hypothesi
be
material to the determination of the dispute. A material error of
this order would point to at least a
prima
facie
unreasonable
result. The reviewing judge must then have regard to the general
nature of the decision in issue; the range of
relevant factors
informing the decision; the nature of the competing interests
impacted upon by the decision; and then ask whether
a reasonable
equilibrium has been struck in accordance with the objects of the
LRA.
Provided
the right question was asked and answered by the arbitrator, a wrong
answer will not necessarily be unreasonable. By the
same token, an
irregularity or error material to the determination of the dispute
may constitute a misconception of the nature
of the enquiry so as to
lead to no fair trial of the issues, with the result that the award
may be set aside on that ground alone.
The arbitrator however must be
shown to have diverted from the correct path in the conduct of the
arbitration and as a result failed
to address the question raised for
determination.
’
[8]
[Footnotes omitted]
[21]
The applicant’s submission was that the dispute between the
parties was an issue of misconduct relating to late coming,
poor time
keeping and abuse of sick leave. NUMSA’s submission was that
the arbitrator was correct to categorise the dispute
as one of
incapacity in that the employee was initially charged for violating
the applicant’s rule relating to what they
call “regular
sickness absence.”
[22]
It is trite that the arbitrator is not only entitled but also
required to assess the evidence before him for the purpose of
identifying the real dispute between the parties.
In
CUSA
v Tao Ying Metal Industries and Others
[9]
the
Constitutional Court stated as follows:
‘
A
commissioner must, as the LRA requires, “deal with the
substantial merits of the dispute”. This can only be done by
ascertaining the real dispute between the parties.
In
deciding what the real dispute between the parties is, a commissioner
is not necessarily bound by what the legal representatives
say the
dispute is. The labels that parties attach to a dispute cannot change
its underlying nature. A commissioner is required
to take all the
facts into consideration including the description of the nature of
the dispute, the outcome requested by the union
and the evidence
presented during the arbitration. What must be borne in mind is that
there is no provision for pleadings in the
arbitration process, which
helps to define disputes in civil litigation. Indeed, the material
that a commissioner will have prior
to a hearing will consist of
standard forms which record the nature of the dispute and the desired
outcome. The informal nature
of the arbitration process permits a
commissioner to determine what the real dispute between the parties
is on a consideration
of all the facts. The dispute between the
parties may only emerge once all the evidence is in.’
[10]
[Footnotes omitted]
[23]
The question is whether the arbitrator addressed the questions raised
for determination; evaluated the facts presented before
him and
arrived at a conclusion that is reasonable.
[11]
It is common cause that when NUMSA referred the dispute to the DRC,
it
described
the dispute as being about unfair dismissal due to alleged
incapacity
.
In
fact, the reasons for dismissal were stated as follows:
‘
1.
Company made a false presumption that the applicant should not have
been sick after her
operation (2009).
2.
Company failed to apply the incapacity procedure properly to the case
of the
applicant.
3.
Company took into account and based its case mainly on sick leave
taken in 2008
and 2009…’
[12]
[24]
The evidence before the arbitrator demonstrated that the employee had
an extensive record of absenteeism relating to medical
reasons and
poor time keeping. It is common cause that prior to his dismissal,
for the period between 2008 and 2010, the employee
had been absent
from work for medical reasons for a total of 59 days. This excludes
the period from 7 to 9 June 2010 when the employee
allegedly
consulted a traditional healer. It is further common cause that the
employee regularly consulted the applicant’s
nursing sister who
ultimately referred him to a medical doctor. In fact, in 2009 the
employee had exhausted his sick leave. During
the same year, the
employee underwent surgery after being diagnosed with a urological
problem. In 2010, the employee was off sick
for 9 days. This resulted
in him being charged and dismissed.
[25]
NUMSA’s submission was that the employee was charged with Rule
6.5 of the applicant’s Disciplinary Code, which
states as
follows:
‘
Personnel
who are frequently absent through sickness may be liable for
disciplinary action up to and including dismissal on the
grounds of
incapacity to fulfil the job function or satisfactorily timekeeping.’
[26]
At the end of the arbitration proceedings, the parties submitted
written closing arguments. The applicant’s submission
was that
its case was that of “regular sickness/pattern of unacceptable
behaviour in that the employee was frequently off
work and
misconducted himself in terms of timekeeping”.
[13]
The applicant further submitted that the employee’s case must
stand and fall on his ability to substantiate his genuine incapacity
and on its failure to address such genuine illness in a fair
manner.
[14]
[27]
This argument was persisted with in these proceedings. In its
supplementary affidavit, the applicant submitted that the employee
was dismissed for “impossibility of performance” in that
he could not meet his obligation in terms of his contract
of
employment. The applicant further submitted, in its replying
affidavit, that the employee failed to render his services due
to him
being absent for no specific medical reason, but for various soft
medical reasons. According to the applicant, the procedure
set out in
the Code of Good Practice dealing with medical incapacity would not
have been appropriate as there was no specific medical
condition that
could be addressed through such process.
[28]
The question is whether the real dispute relates to the employees’
ill health or whether a sufficient basis has been
established to
trigger the applicant’s duties under Item 10 of Schedule 8 of
the LRA. The arbitrator was aware that, although
NUMSA referred a
dismissal dispute relating to incapacity, the employee was dismissed
for misconduct. It follows that the only
dispute before the
arbitrator was whether the reason for the employee’s dismissal
was fair as the procedural fairness was
not in dispute. However, the
arbitrator based his award on the question whether the employee was
fairly dismissed for incapacity
on the grounds of ill health. He
found that the employee’s dismissal for incapacity was
procedurally and substantively unfair.
In so doing, he misconceived
the nature of the enquiry before him. In the premise, the
arbitrator’s award must be reviewed
and set aside.
[29]
On the basis that not the full record of the arbitration proceedings
was before this Court, this is not a case where the Court
should
substitute its decision for that of the arbitrator. The dispute
should be remitted to the third respondent to be heard by
an
arbitrator other than the second respondent to determine whether the
dismissal of the employee was substantively unfair.
[30]
With regard to costs, taking into account the requirements of law and
equity, I believe this is a matter in which there should
be no order
as to costs.
[31]
In the circumstance, I make the following order:
Order
1.
The arbitration award dated 31 March 2011, handed down by the second
respondent acting
under the auspices of the third respondent under
case number MIPT10101 is reviewed and set aside. The matter is
remitted back to
the third respondent for a hearing
de
novo
.
2.
The third respondent
is directed to set the unfair dismissal dispute referred by the first
respondent for arbitration
to be
heard by an arbitrator other than the second respondent to determine
whether or not the dismissal of the applicant was substantively
unfair.
3.
There is no order as to costs.
_____________
D.
Mahosi
Acting
Judge of the Labour Court (then)
Appearances
For
the Applicant:
Mr Henk Wissing of Henk
Wissing Inc. Attorneys
For
the Respondent:
Mr Mtutuzeli Ngqeleni, NUMSA official.
[1]
Act
66 of 1995 as amended.
[2]
Item 10 of Schedule 8 deals with guidelines and procedures in cases
of of an employee’s incapacity, illhealth and injury.
[3]
2007 (28) ILJ 2405 (CC) para 25.
[4]
2013 (6) SA 224
(SCA);
2013 (11) BLLR 1074
(SCA); 2013 (34) ILJ 2795
(SCA).
[5]
At para 25.
[6]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at para 17 and 18.
[7]
[2015]
1 BLLR 50
(LAC) at para 30.
[8]
At para 33.
[9]
[2008] ZACC 15
;
2009 (1) BCLR 1
(CC).
[10]
At paras 64-65.
[11]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at para 16.
[12]
Index
to opposed review application, page 87.
[13]
Index
to opposed review application, page 110 at para 2.6.
[14]
Index
to opposed review application, page 110 at para 2.7.