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[2018] ZALCJHB 135
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Samancor Chrome Ltd (Eastern Chrome Mines) v Commission for Conciliation, Mediation and Arbitration and Others (JR2198/15) [2018] ZALCJHB 135 (29 March 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
No: JR 2198/15
In
the matter between:
SAMANCOR
CHROME LTD
(EASTERN
CHROME MINES)
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
COMMISSIONER
MOHLOMELELE MELLO
First
Respondent
Second
Respondent
NUM
obo KUENA, MOSIUOA
Third
Respondent
Decided:
In Chambers
Delivered:
29 March 2018
JUDGMENT-APPLICATION
FOR LEAVE TO APPEAL
NOWOSENETZ
AJ
Introduction
[1]
This is an
application for leave to appeal against the judgment in this case
handed down on 30 November 2017. The applicant (employer)
filed an
application for leave to appeal on 23 January 2017 and an application
for condonation for the late filing of the application
for leave to
appeal on 31 January 2018. The applications were not opposed.
Condonation
[2]
The
application was filed outside the 15 day time limit prescribed by
Rule 30 (2). The reasons provided were that judgment was handed
down
on 30 November 2017 but the Applicant’s attorneys did not
receive notification. It first came to their attention on
14 December
2017. The Applicant’s attorneys shut down for year -end and
early in 2017 the attorney attending to the case
obtained
instructions and briefed counsel. The application was filed on 31
January 2018. The reasons are sufficient and there is
no indication
of lack of diligence. The delay was excusable particularly having
regard to the year-end closure of law firms. The
application was not
opposed. Condonation is granted.
Grounds
of the application for leave to appeal
[3]
These were
premised on the submission that the judgment incorrectly found that
the arbitrator properly assessed the key dispute
before him and
disregarded evidence of serious or gross negligence by the employee.
It was submitted that the crux of the charge
against the employee was
that he failed to discharge his fundamental duty to ensure compliance
with safe mining practices in the
areas under his supervision.
[4]
It was
submitted that the negligence consisted of the Applicant failing to
halt work and declare the panel unsafe on 17 March 2017.
In the
employers heads of argument in the review and in this application no
reference was made to the transcript where this was
explicitly
formulated by the employer as being the substance of the charge. This
should have been be stated in the charge and proven
in the
arbitration.
[5]
This brings
into question the meaning of the charge. There is no indication
whatsoever in the charge what the employee’s failure
of duty
was. As stated in paragraph 4 of the Code of Good Practice: Dismissal
in Schedule 8 of the Labour Relations Act
[1]
(LRA) the allegation must be in a form and language that an employee
can reasonably understand. The charge is cryptic and vague
in
referring to unsatisfactory work performance which was discussed and
highlighted to the employee. This is akin to a charge which
says ‘you
know what you did wrong’. There was no evidence of any such
discussion in the arbitration. Neither a easonable
arbitrator, nor
the employee should not have to guess what the allegations were. The
arbitrator’s construction of the charge
as considered in the
judgment may be incorrect but it is not one which a reasonable
decision maker could not have made. It was
submitted that the
arbitrator failed to consider the critical issue before him. This
cannot be considered a failing on the part
of the arbitrator, but
rather on the part of the employer who did not present the critical
issue properly.
[6]
To my mind
the arbitrator investigated the charge as dealt with in the judgment
and his interpretation of the charge was reasonable
even if it was
erroneous. This does however reach the threshold of review.
[7]
In
National Union of Mineworkers and Another v Commission for
Conciliation, Mediation and Arbitration and Others
[2]
the Court held as follows:
“
In
terms of Sidumo & another v Rustenburg Platinum Mines Ltd &
others
[2007]
ZACC 22
;
[2007]
12 BLLR 1097
(CC), in deciding whether an award is reviewable the
only question that needs to be asked is: Is the decision reached by
the commissioner
one that a reasonable decision maker could not
reach? This Court is concerned with the reasonableness of the
conclusion itself.
If the outcome is reasonable, it does not matter
that there are flaws in the reasoning employed by the commissioner.
This Court
is not concerned whether the commissioner was correct or
whether it agrees with the commissioner. There is a range of
decisions
that will fall within the bounds of reasonableness by the
Constitution. This Court must simply ensure that the commissioner’s
decision falls within those bounds. To succeed, the applicants must
establish that the decision falls outside the bounds of what
are
reasonable.”
[8]
The
employee denied allowing work to proceed on 17 March 2017 and he
denied that he failed to report unsafe conditions. At best
for the
employer this issue was in dispute and the probabilities were
reasonably found to not be capable of being established in
the
employer’s favour. In my view this was a reasonable finding
based on the poor quality of the employer’s evidence
before
him. If this is the misconduct to be understood from the charge.
[9]
In my view
another court is unlikely to come to a different decision.
Order
[10]
In the
result, I make the following order.
1.
The
application for condonation for late filing of the application for
leave to appeal is granted.
2.
The
application for leave to appeal is dismissed.
3.
No costs
order is made.
_____________________
L
Nowosenetz
Acting
Judge of the Labour Court of South Africa
[1]
Act 66 of 1995 as amended.
[2]
[2009] 8 BLLR 777
(LC); (2009) 30 ILJ
2771 (LC).