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[2018] ZALCJHB 169
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Harmony Goldmine Company Limited v Raffee NO and Others (JR1205/15) [2018] ZALCJHB 169; (2018) 39 ILJ 2017 (LC) (8 May 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR1205/15
In the matter between
:
HARMONY GOLDMINE
COMPANY LIMITED
Applicant
and
COMMISSIONER MOHAMED
RAFFEE
N.O
First Respondent
COMMISSION FOR
CONCILIATION MEDIATION
AND
ARBITRATION
Second Respondent
NATIONAL UNION OF MINE
WORKERS OBO OF SAM PUZI Third Respondent
Heard:
2
7
February 2018
Delivered:
08 May 2018
Summary:
Review
application – cultural tradition of conflict resolution cannot
be used to justify a charge of misconduct.
JUDGMENT
\NKUTHA-NKONTWANA
J
Introduction
[1]
In this
application, the applicant (‘Harmony Gold’) seeks an
order reviewing and setting aside the arbitration award
issued by the
first respondent (‘the commissioner’) on 26 May 2015
under case number GAJB 15464-14. The commissioner
found that the
dismissal of the applicant is unfair and ordered his reinstatement.
The third respondent (‘NUM’) is
opposing the relief
sought by Harmony Gold.
Background
[2]
Harmony
Gold, a mining company, accommodates its employees in the hostels.
The hostels are the property of the mine and it is common
cause that
transgressions committed by employees within the premises of Harmony
Gold are punishable in terms of the disciplinary
code.
[3]
On Sunday,
27 October 2013, Mr Mxolisi Ndlele (‘Mr Ndlele’) was
assaulted by Mr Nqaba Ndabeni (‘Mr Ndabeni’)
at the
hostel bar. His leg was fractured and hospitalised for seven days
whilst receiving treatment. On 29 October 2013, he was
visited by Mr
Ndabeni in the company of Mr Sam Puzi (‘Mr Puzi’), the
dismissed employee represented by the third respondent
(‘NUM’)
in these proceedings, and Mr Popo and Mr Chezi. The purpose of the
visit was to apologise for the assault.
Mr Ndlele requested that the
matter be discussed after his release from hospital.
[4]
On 4
November 2013, Mr Ndlele was released from hospital and he
immediately reported the assault to the mine governor, Mr Vusi.
The next day there was a meeting in Mr Vusi’s office with
Messrs Ndlele and Ndabeni. The assault was discussed with each
given
a chance to state the side of his story. Mr Vusi advised them
to resolve the dispute and Mr Ndabeni to give him feedback.
[5]
The same
day, 5 November 2013, Mr Ndabeni went to Mr Ndlele’s room with
his delegation (Messrs Chipa, Chezi and Popo) to ask
for forgiveness
in terms of the Mpondomise tradition. Mr Ndlele was with his uncle,
Mr Samson Mkhonjwa (‘Mr Mkhonjwa’).
The discussion led to
Mr Ndabeni’s offer of R2000.00 in compensation. That was
rejected by the Ndlele delegation. Instead,
Mr Mkhonjwa demanded
R50 000.00. The negotiations continued on 10 and 11 November
2013 and the Mr Ndabeni delegation comprised
of Messrs Puzi, Chipa
and Chezi. A counter offer of R10 000.00 was made and finally
R20 000.00. However, the negotiations
collapsed as Mr Ndabeni
had R10 000.00 to pay immediately, with an undertaking to pay
the balance later. That was rejected
by the Ndlele delegation.
[6]
On 14
November 2013, Messrs Ndlele and Mkhonjwa formally reported the
assault incident and the ensuing negotiations. As a result,
Harmony
Gold instituted the disciplinary proceedings against Mr Puzi on
charges of dishonesty and attempted bribery. He was found
guilty and
dismissed on 29 October 2013. The NUM successfully challenged his
dismissal.
Grounds
of Review
[7]
The ground
of review relied upon by Harmony Gold are as follows:
7.1.
The
commissioner committed a gross irregularity as he took into account
irrelevant consideration and found that the brawl took place
outside
working hours.
7.2.
The
commissioner misconstrued the nature of the enquiry as he was
preoccupied with the fact that Messrs Ndlele and Mkhonjwa had
mentioned to Mr Ndabeni and his delegation that it was not possible
to agree to the resolution of the matter without a monetary
compensation. The commissioner overemphasised the fact that Messrs
Ndlele and Mkhonjwa were willing to accept the monetary compensation.
7.3.
The
commissioner ignored the critical expert evidence of Dr Ndima dealing
with cultural tradition and compensation.
7.4.
The
commissioner came to an unreasonable finding by concluding that
Harmony Gold applied discipline inconstantly.
[8]
As a rule,
failure by a commissioner to apply his or her mind to issues which
are material to the determination of a case constitutes
an
irregularity. The test does not end there. Before an irregularity can
result in the setting aside of the arbitration award,
it must, in
addition, reveal a misconception of the true enquiry or result in an
unreasonable outcome.
[1]
In
Head
of the Department of Education v Mofokeng
,
[2]
the Labour Appeal Court
aptly said the following:
‘
[30]
The failure by an arbitrator to apply his or her mind to issue which
are material to the determination
of a case will usually be an
irregularity. However, the [SCA] in
Herholdt
… and this court in
Gold Fields
…
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 the setting aside of the award. It must in addition reveal
a misconception of the true enquiry
or result in an unreasonable
outcome…
[31] …
Moreover, judges of the Labour Court should keep in mind that it is
not only the reasonableness
of the outcome which is subject to
scrutiny. As the SCA held in
Herholdt
, the arbitrator
must not misconceive the inquiry or undertake the inquiry in a
misconceived manner. There must be a fair
trial of the issues.
’
…
Moreover, judges of the
Labour Court should keep in mind that it is not only the
reasonableness of the outcome which is subject
to scrutiny. As
the SCA held in
Herholdt
, the arbitrator must not misconceive
the inquiry or undertake the inquiry in a misconceived manner.
There must be a fair
trial of the issues.
[32]
… To repeat: flaws in the reasoning of the arbitrator,
evidenced in the failure
to apply the mind, reliance on irrelevant
considerations or the ignoring of material factors etc must be
assessed with the purpose
of establishing whether the arbitrator has
undertaken the wrong inquiry, undertaken the inquiry in the wrong
manner or arrived
at an unreasonable result …
[33]
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’
Evaluation
[9]
There are
two critical questions that arise in the present case. The first one
is whether, in a cultural diverse workplace, to what
extent should
the employer embrace employees’ individual cultural norms and
traditions? Secondly, would the practice of those
cultural norms and
traditions strip the employer its powers to manage discipline?
[10]
The expert
witnesses concurred on the existence of the African norms and
tradition of conflict resolution and payment of compensation
as a
token of remorse. Also, Dr Ndima, Harmony Gold expert witness,
correctly opined that the practice of traditions cannot be
used to
defeat the ends of justice or conceal a transgression. Dr Timothy
Murithi (‘Dr Murithi’), in his study on The
Practical
Peacemaking Wisdom from Africa: Reflections on Ubuntu,
[3]
makes pertinent remarks:
‘
The Ubuntu Approach to
Conflict Resolution and Reconciliation
Hence, how then were the principles of
Ubuntu traditionally articulated and translated into practical
peacemaking processes? Ubuntu
societies maintained conflict
resolution and reconciliation mechanisms which also served as
institutions for maintaining law and
order within society. These
mechanisms pre-dated colonialism and continue to exist and function
today (10, 11, 12).
Ubuntu societies place a high value on
communal life, and maintaining positive relations within the society
is a collective task
in which everyone is involved. A dispute between
fellow members of a society is perceived not merely as a matter of
curiosity with
regards to the affairs of one’s neighbor; in a
very real sense an emerging conflict belongs to the whole community.
According to the notion of Ubuntu,
each member of the community is linked to each of the disputants, be
they victims or perpetrators.
If
everybody is willing to acknowledge this (that is, to accept the
principles of Ubuntu), then people may either feel a sense of
having
been wronged, or a sense of responsibility for the wrong that has
been committed.
Due to this
linkage, a law-breaking individual thus transforms his or her group
into a lawbreaking group. In the same way a disputing
individual
transforms his or her group into a disputing group.
It therefore follows that if an
individual is wronged, he or she may depend on the group to remedy
the wrong, because in a sense
the group has also been wronged. We can
witness these dynamics of group identity and their impact on conflict
situations across
the world.
Ubuntu societies developed
mechanisms for resolving disputes and promoting reconciliation with a
view to healing past wrongs and
maintaining social cohesion and
harmony.
Consensus building
was embraced as a cultural pillar with respect to the regulation and
management of relationships between members
of the community...
Depending on the nature of the
disagreement or dispute, the conflict resolution process could take
place at the level of the family,
at the village level, between
members of an ethnic group, or even between different ethnic nations
situated in the same region.
’
(Emphasis
added)
[11]
In the
present case, it is common cause that Mr Ndabeni, accompanied by his
delegation, sought to make peace with Mr Ndlele consequent
to the
assault incident in line with the Mpondomise or Mpondo tradition. In
fact, it would seem that the discussion that ensued
was sanctioned by
the hostel governor, Mr Vusi, to whom the hostel bar brawl had been
reported.
[12]
Indeed, the
commissioner correctly took into consideration that during the first
meeting on 5 November 2013, the Ndabeni delegation
did not offer
compensation. It was the Ndlele delegation who introduced the issue
of compensation. As a result, Mr Ndabeni offered
R2000.00 which was
rejected. Mr Mkhonjwa mentioned a figure of R50 000.00. In
essence, the Ndabeni delegation wanted to apologise
and make peace
with Mr Ndlele. To extent that compensation was requested, they were
willing to pay it as a token of remorse.
[13]
It is
common cause that the discussion that ensued on the amount of
compensation was clearly triggered by the Ndlele delegation.
Clearly,
the commissioner correctly took into account the concession by Mr
Mkhonjwa that, had the amount of R50 000.00 been
paid, he would
have accepted it and, most probably, would not have reported the
incident. The concession was fatal to Harmony Gold’s
case of
dishonesty and attempted bribery. To my mind, the compensation was
offered within the context of negotiations, a normal
turn of events
in terms of the African norms and tradition of conflict resolution as
confirmed by the expert witnesses.
[14]
Harmony
Gold sought to water down the effect of the above evidence. It argued
that even if Messrs Ndlele and Mr Mkhonjwa were willing
to accept the
compensation, it could only mean that they were equally guilty of
misconduct as a result of participating in the
concealment of the
serious incident of assault. Well, if that was the case, then Harmony
Gold has a huddle of inconsistent application
of discipline to deal
with. Messrs Ndlele and Mr Mkhonjwa were allowed to get away with
murder.
[15]
Another
impugn by Harmony Gold is that the commissioner ignored the evidence
that the offer of compensation was aimed at ensuring
that the
incident that led to Mr Ndlele’s assault was not reported to
its relevant authorities. That is not true. The
commissioner
did consider the common cause evidence that the assault incident had
been reported to Mr Vusi, the hostel governor.
Mr Khoza, for Harmony
Gold, argued that Mr Vusi was not part of the mine authorities and
the incident was never reported formally.
This argument is devoid of
merit.
[16]
It would be
absurd to have a situation where the Harmony Gold rules of conduct
and discipline are extended to the hostels but the
hostel governing
officials are excluded from the enforcement thereof. Mr Vusi was not
only aware of the assault incident, he even
called Messrs Ndlele and
Ndabeni to a meeting. Nonetheless, even if the incident had not been
reported, the compensation offer
was a legitimate gesture as Mr
Ndabeni showed that he was truly remorseful and had a desire to put
the matter to rest.
[17]
It is clear
that Harmony Gold seriously misconstrued the African tradition of
peace-making hence it vigorously pursued the individual
members of Mr
Ndabeni’s delegation. Dr Ndima testified that The Ubuntu is at
heart in this tradition. As expounded by Dr
Murithi, the collective
intervention is the core of peace-making. As such, the participation
of the community members in order
to facilitate a resolution of a
dispute would not turn them into accomplices to the transgression or
be viewed as defeating the
ends of justice.
[18]
Even though
employers may not be bound by the cultural traditions, they cannot
simply ignore the reality of their existence, especially
in instances
where the cultural traditions are aimed at achieving societal good
and are not in conflict with the Constitution.
In instances, as
typified in the present case, where the perpetrator showed true
remorse and was willing to promote peace with
the victim in
accordance with their norms and traditions, the employer would be
expected to earnestly consider same in good light.
[19]
Lastly, it
is true, as contended by Harmony Gold, that the commissioner was
erroneous in his finding that, since the incident took
place on a
Sunday and outside working hours, the disciplinary code was not
applicable. However, it is immaterial in the big scheme
of events. I
agree with third respondent that the commissioner proceeded to dealt
with the pertinent issues and produced a reasonable
outcome.
Condonation
[20]
There is
also an issue of condonation. Harmony Gold applied for the date for
the hearing of this matter 33 days late. The application
for
condonation is also opposed by the third respondent. I am satisfied
that the explanation proffered for the delay is reasonable
and the
extent of lateness is negligible. There is no prejudice to the third
respondent occasioned by the delay. The indulgence
sought is
granted accordingly.
Conclusion
[21]
In all the
circumstances,
I
have no reason to interfere with the finding of the commissioner that
the dismissal of Mr Puzi is substantive unfair.
Given
the collective bargaining relationship between the parties, it would
not be just and fair to award costs.
[22]
In the
premises, I make the following order:
Order
1.
The
application is dismissed with no order as to costs.
____________________
P Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For the
applicant:
Mr M Khoza
From:
Edward Nathan Sonnenbergs
For the
respondent:
Mr T Sethosa
Instructed
by:
MS Molebaloa Attorneys
[1]
See:
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC)
; Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia)
[2013] 11 BLLR 1074
(SCA); Gold Fields Mining South Africa
(Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation
and Arbitration and
Others
[2013]
ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at paras
14 to 16 and
Department of
Education v Mofokeng Head of the Department of Education v Mofokeng
[2015] 1 BLLR 50 (LAC).
[2]
Head of the Department of
Education v Mofokeng
[2015] 1 BLLR 50
(LAC); Subsequent to
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia)
[2013] 11 BLLR 1074
(SCA) and
Gold Fields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and others
[2014]
1 BLLR 20 (LAC).
[3]
The Journal of Pan African Studies
, vol. 1, no.4, June 2006