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[2018] ZALCJHB 54
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Northam Platinum Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2504/12) [2018] ZALCJHB 54 (8 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 2504/12
In the matter between:
NORTHAM PLATINUM LTD
Applicant
and
THE COMMISSION FOR
CONCILIATION
MEDIATION AND ARBITRATION
First Respondent
JN MATSHEKGA
N.O.
Second Respondent
NUM obo RAKOMA, ALEX
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 first respondent (“CCMA”), on 28 August 2012 under
case reference number LP5061-12 in terms
of which the arbitrator
found that the dismissal of Alex Rakoma (“the employee”)
was substantively unfair.
Background
[2] The employee was employed by the
applicant on the 23 May 2003 as a human resources officer. On the 3
February 2012, the employee
was subjected to a disciplinary hearing
for an alleged misconduct. The charges against the employee were as
follows:
‘
Charge
1
It
is alleged that during January 2012, you are dishonest in your
dealings with the company in that you gave an instruction to Ms
Mathaba, to make out a leave form to cover the absence of Mr T
Mohlomi for 28/11/2011, knowing that Mr. T. Mohlomi was supposed
to
be referred to formal disciplinary hearing for AWOP and
misrepresentation of information.
Charge
2
It
is alleged that during January 2012, you are dishonest in your
dealings with the company in that you connived with the shift
boss Mr
A.J. Jordan to sign a leave form of Mr. T. Mohlomi to cover the
absence of 28/11/2011, and as a result the signature of
the M/O Mr.
P. Hatting was forged.’
[5] At the end of the disciplinary
hearing, the employee was found not guilty of charge 1 and guilty of
charge 2. As a result, the
employee was dismissed. The employee then
lodged an internal appeal which was dismissed on 2 April 2012. The
employee subsequently
referred a dispute to the CCMA where a
conciliation meeting failed and the matter was referred for
arbitration.
[4] The arbitration was held on 20
August 2012. On 28 August 2012, the arbitrator issued an award in
terms of which he found that
the employee’s dismissal was
substantively unfair and ordered the third respondent to reinstate
the employee with effect
from 2 April 2012 and to pay him back pay in
an amount equal to the salary he would have earned between 2 April
2012 and 10 September
2012. Dissatisfied with the outcome of the
arbitration, the applicant launched this review application.
The arbitration award
[12] It is common cause that the
applicant was unable to transcribe the record of the arbitration
proceedings as the tapes were
inaudible. A reconstruction meeting was
held on 8 October 2013 during which the parties agreed that the
arbitrator’s record
of the evidence in his award was accurate.
The applicant, therefore, relies on the evidence as stated in the
arbitration award
and the documentary bundles presented before the
arbitrator.
[13] The arbitrator identified the
dispute before him to be whether the employee’s dismissal by
the applicant for the alleged
misconduct was for a fair reason. The
only issue that was in dispute was whether the employee breached the
applicant’s rule
relating to dishonesty in that he connived
with Jordan to sign a leave form of Mohlomi to cover his absence of
28 November 2011.The
applicant relied on the oral testimony of Tumelo
Mothoni and Precious Mathaba. The employee relied on his own
testimony.
[14] In his analysis, the arbitrator
found that the applicant dismally failed to prove the allegation for
which the employee was
dismissed. The basis for the arbitrator’s
finding was that the testimony of the applicant’s witnesses was
completely
irrelevant to the misconduct that the applicant was
dismissed for. The arbitrator took into consideration the
respondent’s
witnesses testimony that they did not witness any
conniving that took place between the employee and Jordan to sign the
leave form
and further Jordan’s undisputed statement that no
discussion took place between himself and the employee about the
generation
of the leave form and the signature thereof to arrive at
the conclusion that he cannot find that there was any conniving that
took
place between the employee and Jordaan.
[15] The arbitrator rejected Tumelo’s
testimony that Jordan told him that he granted Mohlomi casual leave
on the employee’s
instruction on the basis that it was
unreliable and fabricated. This was because Jordaan made no mention
of such an instruction
in his written statement. Further that Tumelo
led no such testimony in the disciplinary hearing and never mentioned
it in his written
statement. In the circumstances, the arbitrator
found that the applicant failed to prove that the applicant breached
any rule.
Grounds for Review
[16] The applicant contends that the
arbitrator committed a gross irregularity in the conduct of the
arbitration proceedings and/or
exceeded his powers and/or acted
unjustifiably and reached a decision that no other reasonable
decision-maker could have reached.
Applicable law and analysis
[17] 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.
[18]
The test for review which has been authoritatively stated by the
Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
was reiterated in
Herholdt
v Nedbank Ltd and Congress of South African Trade Unions
[3]
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.’
[4]
[19]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[5]
the
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.’
[20]
In
Head
of the Department of Education v Mofokeng and Others,
[6]
the
LAC confirmed the
Herholdt
and
Mofokeng
judgments
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.
[21]
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.
’
[7]
[Footnotes omitted]
[21]
In essence, the applicant’s submission is that there was
evidence on which a reasonable arbitrator could find that the
employee was guilty of the misconduct for which he was dismissed. The
applicant further submits that the arbitrator failed to apply
his
mind to the relevant evidence and consequently made an award, which
no reasonable arbitrator could make.
[22]
It is my view, none of the grounds of review raised by the applicant
falls within the applicable test of reasonableness. In
this case, the
arbitrator’s award is not only clear but it contains the
detailed exposition of the evidence and documentation
presented
before him during the arbitration, followed by an equally detailed
analysis of the evidence and argument.
[20]
It is abundantly clear from the applicant’s founding affidavit
that the applicant has not established any basis upon
which the court
could find that the first respondent’s award was reviewable.
The applicant fails to discharge the
onus
of establishing that the first respondent either committed misconduct
in relation to his duties as an arbitrator, a gross irregularity
in
the conduct of the arbitration proceedings, or exceeded his powers.
[21] It is apparent from the reading
of the award that the arbitrator took into consideration all the
evidence that was led before
him, and applied his mind to the issues
before him.
[22] In my view, the arbitrator dealt
exhaustively with the evidence before him, and considered all
relevant factors before coming
to the conclusion that the employee’s
dismissal was substantively unfair.
[23] Considering the depth of his
treatment with the evidence, it cannot be said that the arbitrator
misconceived the nature of
the enquiry, or failed to apply his mind
to the issues before him, or even that he reached an illogical and
unjustifiable conclusion
or reached an unreasonable conclusion. There
is, therefore, no reason for this Court to interfere with the
arbitrator’s award.
[24] In the premise, I make the
following order:
Order
1.
The applicant’s review application is
dismissed.
2.
There is no order as to costs.
_____________
D. Mahosi
Acting
Judge of the Labour Court (then)
APPEARANCES:
FOR THE APPLICANT:
Advocate R.G.
Beaton SC
Instructed by Van Zyl Le Roux Inc
FOR
THE RESPONDENT:
Mr K Maimane, NUM official
[1]
Act
66 of 1995.
[2]
2007 (28) ILJ 2405 (CC)
at
para
25.
[3]
2013 (6) SA 224
(SCA);
2013 (11) BLLR 1074
(SCA); 2013(34) ILJ
2795(SCA).
[4]
At para 25.
[5]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at paras 17 and 18.
[6]
[2015]
1 BLLR 50
(LAC) at para 30.
[7]
A
t
para 33
.