About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 148
|
|
Xstrata South Africa (Proprietary) Limited - Thorncliffe Mine v NUM obo Mphofelo and Others (JR1091/2011) [2018] ZALCJHB 148 (11 April 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, POLOKWANE
Not Reportable
Case No: JR 1091/2011
In
the matter between:
XSTRATA
SOUTH AFRICA (PROPRIETARY)
LIMITED
– THORNCLIFFE
MINE
Applicant
and
NUM
OBO MPHOFELO, V AND 1
OTHER
First Respondent
COMMISSSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second Respondent
SIMON
MOHUBEDU RANTHO
N.O
Third Respondent
Heard:
14 October 2017
Delivered:
11 April 2018
Summary:
The arbitration award of a commissioner who based his decision on the
fairness of the respondents’ dismissal on their
charges and not
on the reasons for their dismissal, leading the commissioner to reach
an unreasonable decision may be reviewed
and set aside.
JUDGMENT
LALLIE,
J
[1]
The applicant employed the individual first respondents who will be
referred to as the respondents in this judgment in the positions
of
human resources development facilitators. The respondents were both
dismissed for misconduct in December 2010. The first respondent
trade
union (the NUM) challenged the fairness of their dismissal at the
second respondent, the Commission for Conciliation Mediation
and
Arbitration (the CCMA) where the third respondent (the commissioner)
issued an arbitration award in which he found the respondents’
dismissal substantively unfair and ordered the applicant to reinstate
them. In this application the applicant seeks an order reviewing
and
setting the award aside. The application is opposed by the first
respondent.
[2]
The respondents were arraigned before a disciplinary enquiry on a
charge of breaching the applicant’s rules and for working
in an
unethical manner in that they went into the HRD filing room and
checked other employees’ personal files. They were
found guilty
of accessing personal information from persons’ files contrary
to written instruction. Discussing the information
with their fellow
workers was found unethical, unacceptable and that it constituted
serious misconduct. They were dismissed. The
commissioner found their
dismissal substantively unfair. He based his decision on criminal
procedure authority which requires the
charge to disclose an offence
and inform the accused of the case he or she has to meet. He stated
that to comply with rules of
fairness, sufficient information must be
disclosed by the employer in the notification when an employee is
charged, to assist an
employee prepare a defence. The commissioner
found that the charge provided that the offence took place on 13
September 2010, while
evidence was led to the effect that the
misconduct was committed on numerous occasions before that date. He
found the respondents
not guilty as charged because evidence that was
led on behalf of the applicant did not support the charge. The
commissioner accepted
the evidence of Mr Lavelle (Lavelle), the
chairperson of the disciplinary enquiry that the complainant got to
know of the misconduct
on 13 September 2010, a date on which Mr
Mphofelo (Mphofelo), one of the respondents, was not on duty. He
rejected the rest of
Lavelle’s evidence on the basis that it
was hearsay evidence. He recorded that Mr Dreyer (Dreyer) was
consistent about the
fact that the respondents disclosed the
information to him. He found that no evidence was led proving an
irreparable breakdown
of the employment relationship and ordered that
the respondents be reinstated.
[3]
The applicant submitted that the award has to be reviewed and set
aside because the commissioner committed gross irregularities
in the
conduct of the arbitration proceedings in adopting an overly
technical approach in interpreting the allegations of misconduct
against the respondents, disregarded relevant evidence and reached a
decision which a reasonable commissioner could not reach.
The
respondent denied that the applicant established valid grounds to
have the award reviewed and set aside.
[4]
The test for review based on irregularities committed by a
commissioner in the conduct of an arbitration is settled. It is
whether the commissioner misconceived the enquiry he or she had to
conduct or reached an unreasonable decision. The commissioner
was
enjoined by section 138 (1) of the Labour Relations Act
[1]
(the LRA) to conduct the arbitration fairly and to deal with the
substantial merits of the dispute with minimum legal formalities.
The
applicant correctly relied on the authorities which provide that
before taking the decision to dismiss an employee, an employer
is
required to afford an employee an opportunity to state a case.
Employers are therefore not required to conduct disciplinary
enquiries like criminal proceedings. The commissioner erred in
relying on principles which regulate fairness in drafting charge
sheets in criminal proceedings in reaching his decision that the
applicant’s dismissal was unfair. The authority the respondents
sought to rely on which tends to support the commissioner’s
approach has been superseded by the latest interpretation of
the LRA
on the issue.
[5]
It is common cause that the applicants were charged with breaching
the rule which prohibited them from accessing information
in other
employees’ personal files but were found guilty and dismissed
for accessing and conveying that information to their
colleague,
Dreyer. Evidence tendered at arbitration proves that the respondents
committed the misconduct which led to their dismissal.
Dealing with
the same principle the court expressed the following view in
Woolworths
(Pty) Ltd v CCMA
[2]
.
‘
[32]
Unlike in criminal
proceedings where it is said that “the description of any
statutory offence in the words of the law creating
the offence, or in
similar words, shall be sufficient”, the misconduct charge on
and for which the employee was arraigned
and convicted at the
disciplinary enquiry did not necessarily have to be strictly framed
in accordance with the wording of the
relevant acts of misconduct as
listed in the appellant’s disciplinary codes, referred to
above. It was sufficient that the
wording of the misconduct alleged
in the charge-sheet conformed, with sufficient clarity so as to be
understood by the employee,
to the substance and import of any one or
more of the listed offences. After all, it is to be borne in mind
that misconduct charges
in the workplace are generally drafted by
people who are not legally qualified and trained.
[6]
The totality of the evidence before the commissioner proves that
notwithstanding the contents on the respondents’ notices
to
attend their disciplinary enquiries, they were dismissed for
accessing information from other employees’ personal files
and
conveying it to Dreyer. They had an opportunity to state their case
in respect of the misconduct which they were dismissed
for. The
commissioner had to determine whether the applicant’s conduct
of dismissing the respondents for committing that
misconduct was
fair. He did not. He limited his enquiry into the misconduct with
which they were charged. The commissioner conducted
the enquiry into
the fairness of the respondents’ dismissal in the incorrect
manner and as a result of the error he reached
an unreasonable
decision.
[7]
The record contains sufficient information which a decision based on
the provisions of section 145(4)(a) of the LRA can be reached.
The
totality of the evidence before the commissioner proves that the
respondents were dismissed for breaching a valid rule of conduct.
They were aware of the rule. The rule was consistently applied by the
applicant and dismissal was appropriate for the breach. The
fact that
the respondents were dismissed for misconduct different from the one
with which they were charged is of no moment because
the nature of
the misconduct they were accused of was made clear at their
disciplinary enquiries. They were therefore not prejudiced
by the
difference because they were aware that they were committing
misconduct which was punishable by dismissal when they accessed
the
information and conveyed it to Dreyer. They were afforded an
opportunity to state their cases before the decision to dismiss
them
was taken.
[8]
In the premises, the following order is made:
Order
1.
The
arbitration award issued by the third respondent under case number LP
7518-10 is reviewed and set aside and substituted with
the following:
1.1
The dismissal of Kgaugelo Vincent Mphofelo and Simon Gadifele
Phaswane was substantively
fair.
___________________
Z Lallie
Judge of the Labour Court
of South Africa
Appearances
For the Applicant: Mr
Frahm of Bell Dewar Inc
For the Respondent:
Advocate Saloojee
Instructed by Moseamo
Papola Incorporated
[1]
Act 66 of 1995 as amended.
[2]
[2011] 10 BLLR 963
(LAC)
para 32