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[2018] ZALCJHB 147
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Mathonsi v Commission for Conciliation, Mediation and Arbitration and Others (JR382/13) [2018] ZALCJHB 147 (17 February 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: JR 382/13
In
the matter between:
STEVENS
SIPHO NGOBENI WA KA MATHONSI
Applicant
and
THE
COMMISSION FOR CONCILIATION, MEDIATION
First
Respondent
AND ARBITRATION
ELEWANI HLUNGWANI
N.O.
Second Respondent
XSTRATA
ALLOYS (PTY) LTD- WESTERN MINE
Third Respondent
Heard:
31 October 2017
Delivered:
17 April 2018
JUDGMENT
MAMOSEBO,
AJ
Introduction
[1]
This is a review application in terms of section 145 of the Labour
Relations Act
[1]
(LRA) to review and set aside the arbitration award issued by the
second respondent (the commissioner) under the auspices
of the first
respondent, the Commission for Conciliation, Mediation and
Arbitration (the CCMA) under case number NWRB 4284-12 dated
23
January 2014 in which he confirmed that the dismissal of the
applicant was substantively fair. The applicant further seeks
ancillary relief and costs.
[2]
On 14 January 2013 the applicant appeared in person before the
commissioner. Xstrata Alloys (Pty) Ltd - Western Mines (Xtrata),
the
third respondent, the applicant’s employer, was absent. The
commissioner verified that Xstrata Alloys was notified by
fax for the
Con/Arb process on 03 January 2013 and proceeded to hear the
arbitration by default and heard the evidence of the applicant.
[3]
Common cause facts are the following: the applicant was Xtrata’s
resident engineer since 01 June 2011 for the Horizon
Mine and
Boshoek Open Cast Mine in the Rustenburg Area. Xtrata needed to
refurbish the Horizon Crusher Plant which had defects
affecting its
optimal output. It tasked the applicant with the responsibility of
facilitating the refurbishment to ensure that
remedial work was
carried out properly, as the defects posed a health and safety risk
to the Xtrata’s employees. A
document containing specifications
and the scope of work was used. The applicant was part of the team
responsible for the development
of the said document. A company known
as Tshwane Engineering and Hydraulics CC was appointed to carry out
the refurbishment. Whereas
only 90% of the work was done the
applicant signed off their work as complete and the contractor was
paid in full.
[4]
Xstrata received an anonymous complaint highlighting the sub-standard
work performed by Tshwane Engineering, its failure to
complete some
of the specified work in the Scope of works and further that it left
the Crusher Plant in an unsafe condition. An
investigation conducted
by Xstrata confirmed those allegations. This, together with
alleged misconduct allegations levelled
against the applicant, caused
Xstrata to require the applicant to undergo a polygraph test. He
refused to take a polygraph test
having initially agreed. The charges
levelled against the applicant were serious and were preceded by his
suspension from work.
He was charged with gross negligence relating
to the incomplete and shoddy work done by Tshwane Engineering and
dishonesty in an
alleged act of bribery. He was dismissed but
declared a dispute of unfair dismissal against his employer.
[5]
The applicant testified that he was in possession of the diagrams and
notes and the annotations on the diagram were more
specific
but were overlooked by him and Tshepo, the platinum engineer. He went
on before the commissioner:
‘
When done
with the work myself and Peter Morewa inspected the work and I was
satisfied based on the scope of work. On his version
there were noted
things that missing balls, loose balls which Peter Morewa instructed
the guys to fix immediately.’
The
applicant also said the following:
‘
I believe
the dismissal is unfair because of Tshwane Engineering have done the
work in accordance [with] the scope of work that
they were provided
with. However, I indicated [at] the hearing that there is a
difference which may have been overlooked by everyone
between the
scope of work and the drawing’
And
‘
So I sent
the scope of work and the drawings with these notes which I did not
see and Peter Morewa did not see and we sent it to
the engineering
manager and the engineering manager he approved this package and this
package is not talking the same thing.’
[6]
The applicant’s legal representative raised the following
issues for determination: That the commissioner disregarded
the
irregularities which allegedly occurred at the disciplinary enquiry
stage and misdirected herself in accepting the record of
the internal
disciplinary enquiry when no evidence was tendered at the arbitration
proceedings on behalf of the employer:
6.1
Whether the applicant’s dismissal was procedurally and
substantively unfair.
6.2
Whether the proceedings of the internal hearing were procedurally and
substantively unfair?
6.3
Whether the CCMA proceedings were procedurally and substantively
fair, with specific reference
to whether the commissioner:
6.3.1
Committed a misconduct in the performance of her duties as
arbitrator.
6.3.2
Committed a gross irregularity or;
6.3.3
Exceeded her powers?
[7]
The applicant did not enunciate succinctly what the grounds for his
review are. In addition even his legal representative, Mr
Fhedzisani
Pandelani, did not quite spell out what the grounds relied on are. It
fell to Xstrata’s attorney who took pains
to extrapolate such
grounds when presenting his client’s case. The following
are the ostensible grounds upon which
the applicant seems to rely on
in seeking the relief. That the Commissioner:
7.1
Failed to deal with the procedural fairness of his dismissal;
7.2
Refused him legal representation during the arbitration thereby
committing misconduct and
a gross irregularity;
7.3
Was biased and assumed the role of Xstrata thereby committed
misconduct and gross irregularity;
7.4
Erred by cross-examining him in certain instances; and
7.5
Erred in demanding the outcome of the disciplinary enquiry.
[8]
The applicant challenged both the procedural and substantive fairness
of the arbitration proceedings. The challenge lacks substance
because
in the transcribed record the commissioner clarified with the
applicant whether he was challenging the procedure but his
response
was that he was challenging the substantive fairness of his dismissal
only. This appears in the arbitration record of
proceedings:
“
Commissioner:
what are you challenging, procedure or substance? The reason for the
dismissal or the?
Applicant:
No, substance.
Commissioner:
And
you are not challenging procedure. Are you happy with the way the
hearing was conducted?
Applicant:
It was biased but it was conducted procedurally.
Commissioner:
Okay,
because I need to understand as to what you are challenging. Are you
only challenging substance?
Applicant:
Yes, substance.”
[9]
In terms of s 145 of the LRA a party to an arbitration award may
apply to the Labour Court for an order reviewing and setting
aside
the arbitration award based on a defect in the arbitration
proceedings, if the commissioner:
9.1
Committed misconduct in relation to his or her duties as an
arbitrator;
9.2
Committed a gross irregularity in the conduct of the arbitration
proceedings;
9.3
exceeded his or her powers; or
9.4
the award was improperly obtained.
[10]
Section 158(1) (g) of the LRA provides:
‘
that subject
to section 145, the performance or purported performance of any
function provided for this Act on any grounds that
are permissible in
law.’
[11]
In
Sidumo
and Another v Rustenburg Platinum Mines Limited and Others
[2]
the Constitutional Court held that the review grounds set out in s
145 of the LRA have been suffused by the standard
of reasonableness,
and that an arbitration award of the CCMA or bargaining council is
reviewable if the decision reached by the
commissioner was one that a
reasonable decision-maker could not reach.
[12]
In
Andre
Herholdt v Nedbank Limited, (Congress of South African Trade Unions
as amicus curiae)
[3]
the
Supreme Court of Appeal (SCA) had occasion to interpret the grounds
of review set out in s 145 of the LRA as developed in the
Sidumo
judgment by making the following pronouncement:
‘
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
within one of the grounds in section 145(2)(a) of the LRA. For a
defect in the conduct of proceedings to amount
to a gross
irregularity as contemplated by section 145(2)(a)(ii), the arbitrator
must have misconceived the nature of the inquiry
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 weight
and relevance to be attached to
particular facts, 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.’
[13]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[4]
Waglay JP remarked:
“
[15]
….it serves no purpose for the reviewing court to consider and
analyse every issue raised at
the arbitration and regard a failure by
the arbitrator to consider all or some of the issues albeit material
as rendering the award
liable to be set aside on the grounds of
process related to review.
[16]
In short: A reviewing court must ascertain whether the arbitrator
considered the principal issue before him/her; evaluated
the facts
presented at the hearing and came to a conclusion that is
reasonable.”
[14]
The other grounds levelled against the commissioner to determine
whether they have been substantiated or not now follow. The
applicant
claims that the failure by the commissioner to allow him legal
representation is a misconduct and a gross irregularity.
Xstrata’s
legal representative argued that the commissioner acted in accordance
with Rule 25(1)(c) of the Rules for the Conduct
of Proceedings before
the CCMA which stipulates:
‘
(c) If the
dispute being arbitrated is about the fairness of a dismissal and a
party has alleged that the reason for the dismissal
relates to the
employee's conduct or capacity, a party is not entitled to be
represented by a legal practitioner in the proceedings
unless –
i.
the
commissioner and all the other parties consent;
ii.
the commissioner concludes that it is unreasonable to expect a party
to deal with the dispute without legal representation,
after
considering –
a.
the
nature of the questions of law raised by the dispute;
b.
the
complexity of the dispute;
c.
the
public interest; and
d. the comparative
ability of the opposing parties or their representatives
to deal with the dispute.’
[15]
The applicant’s legal representative argued the matter as if
permission for legal representation was sought and refused.
This is
however not the case. The commissioner, having verified that Xstrata
was served with the documents for the proceedings,
and failed to
attend, continued to explain to the applicant that he or she will
pose a few questions to him by way of obtaining
background
information, which he/she did.
[16]
Zondo JP in
Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau NO and Others
[5]
remarked:
‘
Anyone who
has had anything to do with our labour law and the dispute resolution
system in the labour field will know that, by far,
the majority of
cases that affect employers and employees and that “consume”
public resources are dismissal cases and
most of the dismissal cases
are those relating to dismissal for misconduct. The legitimate
Government purpose in relation to the
provision of compulsory
arbitration under the Act was to provide a speedy, cheap and informal
dispute-resolution system. If you
failed to achieve that goal in
regard to disputes concerning dismissals for misconduct, you would
never achieve that goal in respect
of the entire Act.
If one has a look
at all the cases in which the Act provides for a right to legal
representation, one will note a common denominator
to the cases. That
is that of all these cases occur very seldom. Indeed, they are few
and far between. Furthermore, the issues
that arise in most of them
can be quite technical, for example, demarcations, essential services
and others.
If provision was to
be made for an absolute or general right to legal representation in
respect of such disputes, that would make
a serious contribution
towards taking our new dispute-resolution system in the 1995 Act back
to the pre-1994 dispute-resolution
system under the Labour Relations
Act 28 of 1956 which had become totally untenable by the time the
1995 Act was passed. That cannot
be done.’
[17]
The Supreme Court of Appeal considered the constitutionality of Rule
25(1)(c) of the CCMA rules and overturned the North Gauteng
decision’s declaration of invalidity of the said rule in
The
Commission for Conciliation, Mediation and Arbitration and Others v
Law Society, Northern Provinces
[6]
.
The
SCA pronounced that the sub-rule is sufficiently flexible to allow
legal representation in deserving cases. I am of the view
that the
commissioner was alive to that fact when he proceeded with the
arbitration having escalated the process from conciliation
to
arbitration in the absence of the employer. I therefore find that the
applicant’s allegation against the commissioner
on the aspect
of legal representation has not been substantiated. I therefore find
that the commissioner cannot be faulted on this
aspect either.
[18]
The applicant seems to operate under the impression or perception
that any act of asking questions by the commissioner is a
misconduct
or gross irregularity. I have not discerned from the record the basis
for that allegation. The proceedings were undeniably
one-sided based
on the fact that the employer did not participate. It was expected of
the commissioner to understand the matter
in its totality to be able
to make a determination at the end of the hearing. There is nothing
wrong with the involvement of the
adjudicator, be it a commissioner
or presiding officer, from asking questions for clarity or obtaining
background information.
[19]
In my view the commissioner’s summary of the evidence, analysis
thereof and the subsequent findings cannot be faulted.
It is clear
that he/she applied his or her mind to the issues in the case. I find
that the commissioner articulated the award properly
based on the
evidence. It was also not discernible from the record that any weight
was attached to the disciplinary enquiry because
the findings in the
award were based on the arbitration proceedings. The conclusion that
the commissioner came to was one that
a reasonable decision-maker
could make. There is nothing in the papers or oral argument that
persuades me to review and set aside
of the arbitration award. The
application stands to fail.
[20]
In as far as costs are concerned there is no reason why the
respondent should be burdened with costs.
Order
[21]
I therefore make the following order: The applicant’s review
application is dismissed with costs.
_______________
M C Mamosebo
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr Fhedzisani Pandelani
of FR Pandelani Inc Attorneys
For
the third respondent: Mr Dion Masher of Edward
Nathan Sonnenbergs Inc
[1]
Act
66
of 1995 as amended.
[2]
2008 (2) SA 24 (CC).
[3]
[2013] 11 BLLR 1074 (SCA).
[4]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at 949C –
D
[5]
[2009] 4 BLLR 299
(LAC) paras 44, 45 and 46
[6]
(005/13)
[2013] ZASCA 118
(20
September 2013).