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[2018] ZALCJHB 97
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NEHAWU obo Magobiyana v Sirkhot and Others (JR677/16) [2018] ZALCJHB 97 (7 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Not
of interest to other judges
Case
no: JR 677/16
In
the matter between:
NEHAWU
obo ESME
MAGOBIYANA Applicant
And
IMTHIAZ
SIRKHOT
N.O. First
Respondent
METAL
& ENGINEERING
INDUSTRIES Second
Respondent
BARGAINING
COUNCIL
SCAW
METALS Third
Respondent
Heard:
08 February 2018
Delivered:
07 March 2018
Summary:
Labour Relations Act, 66
of 1995
: Review in terms of
section 145
– Union member not
pursuing available alternative positions entailing salary reduction –
Retrenchment unavoidable in
circumstances – Union furnished
with information requested for consultation purposes –
Select
ion criteria
not before arbitrator for determination – Even if selection
criteria raised for determination same fair and objective
–
Dismissal fair – Application dismissed.
JUDGMENT
LEKALE,
AJ
BACKGROUND
AND INTRODUCTION
[1]
On 31 July 2015 the applicant’s member, who was employed by the
third respondent as Executive Personal Assistant (“Executive
PA”) to the Human Resources Executive, was dismissed on the
basis of the third respondent’s operational requirements.
She
felt aggrieved by the dismissal and enlisted the assistance of the
applicant to refer a dispute concerning alleged unfair dismissal
to
the second respondent for resolution.
[2]
The dispute remained unresolved after an attempt at conciliation and,
eventually, served before the first respondent, in his
capacity as
arbitrating panellist with the second respondent, for arbitration.
The first respondent eventually issued an award
declaring the
dismissal both substantively and procedurally fair on 23 February
2016.
[3]
The applicant took issue with the award and now approaches this court
in terms of
section 145
of the Labour Relations Act 66 of 1995 (“the
LRA”) for an order setting the same aside and substituting it
with an
order for reinstatement of its member on the grounds that the
dismissal was unfair.
[4]
The application is opposed by the third respondent on the grounds
that the impugned award is not reviewable.
ISSUE
FOR DETERMINATION
[5]
The parties are in dispute over whether or not the impugned award
could reasonably not be made on the material properly before
the
first respondent with specific reference to the information furnished
to the applicant by the third respondent for consultation
purposes as
well as the avoidability of retrenchment in the light of available
alternative employment opportunities.
[6]
In the event of the preceding question being decided in the positive,
I am enjoined to set the award aside and to substitute
the same with
an order of reinstatement in favour of the applicant’s member.
DEPOSITIONS
AND CONTENTIONS FOR AND ON BEHALF OF THE APPLICANT
[7]
The applicant’s legal officer, Malose Phoko (“Mr Phoko”)
deposes and submits, inter alia, to the effect that
the applicant’s
member was initially employed as Executive PA to the respondent’s
chairperson in February 2014 but
was later in June 2014 transferred
to serve as Executive PA to the Human Resources Manager where she
remained until her unfair
dismissal on 31 July 2015. A series of
consultation meetings took place both before and after she joined a
trade union. After joining
the union she got represented and assisted
during such consultations by shop stewards when a wide range of
issues were covered
inclusive of alternative employment positions.
Consensus could not be reached and the matter was eventually referred
to the bargaining
council having jurisdiction for resolution. During
the arbitration hearing which ensued applicant’s
member indicated
that she was not aware of the financial worth of
available alternative positions although she was aware of their
grades. It was,
further, her evidence that she did not mind taking a
pay cut by pursuing such positions.
[8]
According to Mr Phoko the first respondent misapplied his mind to the
facts before him insofar as he failed to appreciate that
it was
essential for the applicant’s member to know the actual
monetary value of such alternative positions and not their
grades in
order to make a decision on whether or not she could live with a
reduced salary. The first respondent, further, committed
a gross
irregularity in accepting the third respondent’s version on
whether or not the applicant’s member decided not
to pursue the
relevant positions because of her lifestyle without first making a
credibility finding as to which of the two conflicting
versions
before him was reliable and acceptable as required by law. The award
is, in his view, riddled by gross irregularities
and is not supported
by available evidence to the extent that no reasonable decision-maker
could make it. The third respondent,
in fact, considered only one
selection criterion
viz.
Last In First Out (“LIFO”)
but the first respondent found that skills preservation was also
applied as a criterion.
DEPOSITONS
AND CONTENTIONS FOR AND ON BEHALF OF THE THIRD RESPONDENT
[9]
The third respondent’s Group Employee Relations Manager,
Mandisile Thamsanqa, deposes,
inter alia
, to the effect that
at the time of the consultations and the retrenchment of the
applicant’s member there was no vacant position
of an Executive
PA. The evidence before the first respondent was clearly to the
effect that the applicant’s member discussed
the pay cut
associated with the alternative position of Office
Administrator/Supervisor but did not avail herself by applying for
the same. She was provided with all the information she requested for
the job in question.
[10]
In argument on papers and before the court
Mr
Itayi Gwaunza (“Mr Gwaunza”)
for the third
respondent submits, inter alia, to the effect that the first
respondent was alive to the two conflicting versions
before him as
well as the need to resolve same. It is clear from the award that the
first respondent resolved the conflict by having
regard,
inter
alia
, to the probabilities finding that the applicant’s
member effectively rejected the alternative positions offered because
she was not willing to take a pay cut. In his view dismissal was
unavoidable where available alternative positions did not appeal
to
the applicant’s member. The applicant party was furnished with
all the information it required to participate meaningfully
in the
consultations. The first respondent had regard to all the information
properly before him inclusive of the minutes of various
consultation
meetings the parties had. In his view the award cannot be faulted on
any grounds because the applicant’s member
focused her case on
whether or not there were alternatives to avoid retrenchment. The
fairness of the selection criteria applied
in the dismissal was never
placed before the first respondent for determination.
APPLICABLE
LEGAL POSITION
[11]
The test in the instant matter
is whether or not the impugned award was the kind that could
reasonably not be made on the material
properly before the first
respondent as the arbitrator.
[1]
[12]
The technique applied by the
courts for resolution of factual disputes requires a balanced
assessment of the reliability, credibility
and probabilities
associated with the evidence of the respective witnesses with the
probabilities prevailing in the event of credibility
findings and
probabilities being equipoised.
[2]
[13]
The approach entails a holistic
approach to the evidence properly before the court and weighing up
the merits and demerits of each
of the conflicting versions regard
being had to probabilities.
[3]
[14]
Assessment of evidence on the
basis of credibility alone without regard for underlying
probabilities constitutes a misdirection.
[4]
APPLICATION
OF LEGAL POSITION TO THE FACTS & FINDINGS
[15]
It is true, as submitted for the third respondent, that the parties
limited the issues for determination by the first respondent
to
whether or not the applicant was properly consulted and whether or
not there existed a fair reason for the retrenchment.
[16]
Even if the fairness of the selection criteria was properly raised
for determination before the first respondent, I am satisfied
that
same was fair and objective insofar as the applicant’s
comparator was indisputably more experienced regard being had
to her
extensive service with the third respondent.
[17]
It is, further, correct that in her challenge against the substantive
fairness of the dismissal the applicant’s member
focussed her
attention before the arbitrator on whether or not retrenchment was
unavoidable regard being had to availability of
alternative
employment opportunities and not on the fairness of the selection
criteria employed.
[18]
A perusal of the impugned award reveals that on the fairness
procedure followed to effect the dismissal the first respondent
effectively found that several consultation meetings were held by and
between the parties first with the applicant’s member
alone and
later with her union representatives during which the reasons for
retrenchment were outlined and discussed. The first
respondent,
further, observed from minutes of various consultation meetings that
when the applicant’s member was offered
alternative employment
opportunities it was pointed out on several occasions by the third
respondent that such positions entailed
pay cuts. The arbitrator,
further, found that the applicant’s member “
was
afforded a fair opportunity to pursue alternative vacant positions
but chose not to do so because it would require that she
takes a pay
cut”
. It was, furthermore, the first respondent’s
view that “
a reading of the minutes of the several
consultation meetings confirmed that the applicant’s member
never offered to accept
any position that would result in a salary
cut”
.
[19]
The applicant contends that in concluding that its member elected not
to pursue alternative vacant positions “
because it would
require that she takes a pay cut”
the first respondent
accepted the third respondent’s version, which was in direct
conflict with that of its member, without
making a credibility
finding as required by law. In the applicant’s view its
member’s case was clearly that she was
prepared to accept a
reduced salary all for the sake of avoiding retrenchment.
[20]
A reading of the record clearly confirms the first respondent’s
finding that the applicant’s member never offered
to accept any
of the positions concerned which could have resulted in a salary cut
on her part.
[21]
The evidence properly before the arbitrator from the third
respondent’s main witness, to whom the applicant’s member
directly reported at the time of the dismissal, was not to the effect
that the applicant’s member stated that she would not
accept
the relevant positions because of her lifestyle which did not suit a
reduced salary. His evidence was firstly to the effect
that the
third respondent’s position during consultations
was that a position involving reduced salary was not
suitable but
that two positions were selectively offered to her because they were
considered to be closer to her pay grade. One
of three positions
available was unfortunately not suitable because the applicant’s
member did not qualify as she was not
an artisan as required for the
relevant position. Secondly he testified that the applicant’s
member came back after considering
the information they gave her in
respect of the alternative job in Cape Town to say that “
the
grade or level of the position would not be suitable to the pay scale
at which she was”.
He further testified that “
she
considered [that position] as well but I think if I remember well it
was a question of a grade that she did not pursue it fully”.
[22]
In my view that the applicant’s
member did not accept the vacant position in question because she was
not interested in taking
a pay-cut as it would not suit her lifestyle
was, in fact, a conclusion reached on the balance of probabilities by
the first respondent
on the evidence before him regard being had to
his statement to the effect that if he could not find it in the
minutes that the
applicant’s member stated that she wanted any
of the relevant positions he was “
going
to take it for granted to that the position was offered to her and
she chose not to take it in terms of the minutes
”.
[5]
[23]
Even if I am wrong in the preceding finding I am satisfied that such
a conclusion was reached by the relevant witness for the
third
respondent on probabilities insofar as, on his evidence, the
positions, in fact, entailed a pay- cut on the part of the
applicant’s member who stated that one such position was not on
the same grade or level as her pay scale.
[24]
The issue for determination by the first respondent was, as such,
whether or not on available evidence alternative positions
were
offered but not accepted by the applicant’s member. The
applicant’s member effectively disputed at arbitration
level
that the Cape Town position was offered to her insofar as she
contended that the salary attaching thereto was not disclosed
to her
in order for her to consider it properly for the purposes of making a
decision thereon.
[25]
The arbitrator was, thus, not confronted with two mutually
destructive versions as to whether the applicant’s member
stated that she could not entertain alternative positions because she
was not interested in taking a pay-cut as that would not
suit her
lifestyle. It was simply not the third respondent’s case before
the arbitrator that the applicant’s member
made such a
statement. The relevant statement was, in my view, the third
respondent’s opinion on why the applicant’s
member did
not pursue the positions. The first respondent, therefore, did not
have to make any credibility findings on the issue
in question and
correctly considered the probabilities as to whether or not the
positions were offered but were not pursued by
the applicant’s
member.
[26]
Even if I am wrong in this regard I am satisfied from case law that
the first respondent followed the applicable technique
correctly and
resolved the conflicting on probabilities regard being had to the
totality of evidence before him.
[27]
The question before the arbitrator was simply whether or not offers
of alternative employment were made, and if so whether
or not they
were not accepted or pursued by the applicant’s member.
[28]
It is clear from the material before the first respondent that the
applicant’s member, as assisted by shop stewards,
requested and
received information regarding the relevant positions from the third
respondent. It is not the applicant’s
case that information
relative to applicable salaries was requested but
was withheld by the third respondent.
In my view if the applicant’s
member required specific information about the monetary value of the
relevant Cape Town position
she would simply have requested the same.
[29]
I am, thus, persuaded by the material properly before the first
respondent that the issues that needed to be consulted on were
clear
to the parties and where additional
information was required it was requested and furnished.
[30]
In the result I am not satisfied that the impugned award is one which
could reasonably not be made on the material which served
before the
first respondent.
[31]
As far as costs are concerned I am satisfied that the requirements of
law and fairness cry out for the same to follow the result
insofar as
the parties asked for the relevant order against each other.
ORDER
[32]
In consequence the application is dismissed with costs.
____________________
LJ
Lekale
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
M Phoko (Union
Official)
Instructed
by:
NEHAWU
For
the Respondent:
I Gwaunza (Edward Nathan Sonnenbergs
Inc)
[1]
See
Sidumo & Another v
Rustenburg Platinum Mines Ltd & Others
[2007] 12 BLLR 1097
(CC)
and
Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA &
Others
[2014] 1 BLLR 20 (LAC).
[2]
See
Stellenbosch Farmers Winery
Group Ltd v Martell et Cie & Others
[2003]
1 SA 11 (SCA).
[3]
See
S
v Guess
1976 (4) SA 715
(A).
[4]
See
Medscheme
Holdings (Pty) Ltd v Bhamjee
[2005]
5 SA 339
(SCA) at 345A and
Solidarity
obo Van Zyl v KPMG Services (Pty) Ltd & Others
(2014) 35 ILJ
1656 (LC).
[5]
See pages 101
lines 19 to 22 and 102 line 1 of Transcriptions Bundle.