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 233
|
|
Delmas Coal (Pty) Limited v Commission for Conciliation Mediation and Arbitration and Others (J440/17) [2018] ZALCJHB 233 (26 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE NO: J440/17
In the matter between:
DELMAS COAL (PTY)
LIMITED
Applicant
and
THE COMMISSION FOR CONCILIATION
MEDIATION AND
ARBITRATION
First
Respondent
COMMISSIONER LIZELLE KRIEL
WESSELS
Second
Respondent
DOCTOR SIMON
SEHALADI
Third
Respondent
Application heard: 5 June 2018
Judgment delivered: 12 June 2018
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the second respondent, to whom I shall refer as
‘the
arbitrator’. In her award, the arbitrator held that the
dismissal of the third respondent by the applicant was
substantively
unfair and reinstated the third respondent with retrospective effect.
[2] The application was not opposed.
On the day of the hearing, the third respondent attended at court and
made submissions. I have
taken these into account in coming to the
conclusion reflected below.
[3] The material facts are recorded in
the award and I do not intend to repeat them here. It is sufficient
to note that the third
respondent was employed on the applicant’s
mine as a fitter. He was dismissed on 4 October 2016 on charges
relating to the
theft of company property, being in possession of
stripped cables being the property of the applicant, gross
dishonesty, illegally
entering the work area and a failure to carry
out a legitimate instruction.
[4] At the arbitration hearing, four
witnesses testified for the applicant; the third respondent then gave
evidence. The evidence
is captured in the award, but in summary, the
applicant’s second witness, Mr Dlamini, a security officer,
testified that
he received a report on 9 September 2016 that the
third respondent and a co-employee, one Blessing, had been seen the
previous
day using a mine vehicle, without authorisation, exiting a
gate not recognised as a general access gate. Consequent on this
report,
the third respondent and Blessing were placed under
surveillance. Mafastela, also a security officer, testified that on
the night
of 15/16 September 2016, suspicious activity was reported
at a T-junction on a gravel road close to the mine. He testified that
while on his way to the mine, he met the third respondent on the
road, pulled him over and requested him to proceed to the mine.
There
he was informed that the third respondent was on what is known as a
fatigue shift, meaning that he was not permitted to be
on the mine’s
premises. The third respondent’s vehicle was searched but
nothing suspicious was found. Strip cable was
later found in bags,
dumped next to the gravel road where the third respondent had been
seen. The witness testified further that
on the night in question,
the third respondent was dressed in his mine overalls, which was not
allowed outside of the mine area.
A further witness, Mr Mafastela,
also a security guard, testified that on the night of 15 September
2016, in the early hours of
the next morning, he saw a mine vehicle
exit the mine premises and turn a T-junction onto the gravel road. He
saw a passenger alight
from the vehicle and offload bags, assisted by
the driver. The two persons returned to the vehicle, which returned
to the mine
premises. The incident was reported, but the witness
could not identify the two persons in the vehicle. The final witness,
a Mr
Victor Mothlutsi, testified that on the night of 15/16 September
2016 he received a call from the third respondent to assist him
underground when he saw the third respondent and Blessing; they asked
him to open a gate to load a bin containing rubbish.
[5] The third respondent’s case
was that on 15 September 2016 he was granted a fatigue shift and went
home and slept. At about
3 am the next morning he was contacted by a
friend in Devon. He went to the friend, assisted him and returned
home. On his way,
he was stopped by Dlamini on a road near the mine.
Dlamini searched the vehicle but nothing was found. He contested the
charges
against him on the basis that there were no access records
relating to his alleged presence on the mine on 15/16 September 2015,
and further that nothing was found on his person or in his vehicle,
nor he was not identified as the culprit.
[6] The arbitrator considered that the
evidence adduced by the applicant was circumstantial in nature. In
particular, she concluded
that the evidence did not prove that the
third respondent had permanently deprived the applicant of strip
cable, nor proved that
the third respondent was in possession of
strip cable. It was also not proved that the third respondent was in
unauthorised use
of the mine vehicle, or that he was on the mine at
all on the night tin question.
[7] The arbitrator concluded that
while the dismissal was procedurally fair, the applicant had failed
to prove any of the charges
against the third respondent and for that
reason, she ordered his reinstatement, with retrospective effect.
[8] The threshold for review is fairly
well-established. Section 145 permits the review of an arbitration
award, amongst other grounds,
where the arbitrator commits a gross
irregularity. This extends to latent gross irregularities or, put
another way, instances where
an arbitrator fails to apply him or
herself to the available evidence, makes defect of factual findings
and the like. In these
instances, a party seeking to set aside an
award or ruling must establish both the irregularity or defect relied
on and that
the
Sidumo
threshold is met.
In Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA & others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC), the Labour Appeal Court noted that it is
not sufficient for an award to be set aside simply to establish a
gross irregularity
in the conduct of the arbitration proceedings; it
is incumbent on an applicant to establish that the result was
unreasonable or
‘
put another way, whether the decision
that the arbitrator arrived at is one that falls outside the band of
decisions to which a
reasonable decision-maker could come on the
available material
’. In other words, the review court must
consider whether despite the arbitrator’s reasoning, the result
is nevertheless
capable of justification on the available material.
Thus, material errors of fact on the part of the arbitrator, as well
as the
weight and relevance to be attached to particular facts or a
failure to have regard to particular facts are not in themselves
sufficient
grounds for review; their effect must be to render the
outcome unreasonable.
[9] Precisely how this determination
to be made was the subject of recent guidance provided by the Labour
Appeal Court. In head
of the
Department of Education v Mofokeng &
others
[2015] 1 BLLR 50
(LAC), Murphy AJA said the following:
The
determination of whether a decision is unreasonable in its result is
an exercise inherently dependent on variable considerations
and
circumstantial factors. A finding of unreasonableness usually implies
that some other ground is present, either latently or
comprising
manifest unlawfulness. Accordingly, the process of judicial review on
grounds of unreasonableness often entails examination
of interrelated
questions of rationality, lawfulness and proportionality, pertaining
to the purpose, basis, reasoning or effect
of the decision,
corresponding to the scrutiny envisaged in the distinctive review
grounds developed at common law, now codified
and mostly specified in
section 6 of the Promotion of Administrative Justice Act (“PAJA”);
such as failing to apply
the mind, taking into account irrelevant
considerations, ignoring relevant considerations, acting for an
ulterior purpose, in bad
faith arbitrarily or capriciously etc . The
Court must nonetheless still consider with apart from the flawed
reasons of or any
irregularity by the arbitrator, the result could be
reasonably reached in light of the issues and the evidence
(at paragraph 31)
Further:
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 enquiry. 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 on the
arbitrator’s conception of the enquiry,
the determination 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. The material error of this order would point to at least a
prima facie unreasonable
result.
[10] What this analysis requires is
that the review court determine first whether the arbitrator
perpetrated any ‘defect’
or irregularity contemplated by
s 145 (2). Secondly, the court must have regard to the distorting
effect that the error may have
had on the outcome of the arbitrator’s
award. Thirdly, if it is reasonably clear that but for the identified
error relied
upon the award would have been different or cannot stand
on its own reasoning, then the award is
prima facie
an
unreasonable award. Finally, the court must have regard to the issues
and the evidence as a whole to determine whether or not
the outcome
is nevertheless capable of being sustained on the
Sidumo
test.
Put more plainly, the review court must ask whether but for the
defect, a reasonable decision-maker could have come to the
conclusion
reached in the award on the same material.
[11]
When conducting this analysis, the review court must avoid falling
into the trap of what the Labour Appeal Court in
Gold Fields
referred to as a ‘piecemeal analysis’ of each of the
arbitrator’s findings. The question to be answered ultimately
is whether on the totality of the evidence, a relationship of
reasonableness exists between that evidence and the result reached
by
the arbitrator have committed.
[12] The applicant has raised nine
grounds of review, all concerned in one way or another with the
contention that the arbitrator
failed to consider material evidence
presented during the hearing.
[13] The applicant avers that the
arbitrator failed to have regard to evidence regarding the third
respondent’s prior suspicious
conduct. In this regard, Dlamini
gave undisputed evidence that at the time of the incident that led to
the third respondent’s
dismissal, he was being monitored on
account of suspicious conduct. The third respondent did not dispute
that his conduct on the
night of 8 September 2016 had been
suspicious, Further, Dlamini gave direct and uncontested evidence
that when the third respondent
was pulled over in a vehicle close to
the mine, he was wearing his mine-issued protective overall at the
time. This version is
supported by Mafastela’s evidence under
cross-examination when he testified that he saw two people wearing
mine overalls.
Further, Dlamini’s undisputed evidence was that
‘nobody is allowed to leave the mine with a uniform.’ It
was
only during the third respondent’s cross-examination that
he averred that the overalls that he was wearing on the night in
question were not mine issued overalls. This version had never been
put to any of the applicant’s witnesses. Under the pressure
of
cross examination, the third respondent changed his version on this
issue more than once, and when he was ultimately confronted
with
uncontested evidence that he had been found in close proximity to the
mine in his mine issued overalls while he should have
been at home on
a fatigue shift, coupled with Mothlutsi’s direct evidence that
he saw the third respondent on the mine, any
reasonable
decision-maker would have concluded that the evidence was not
circumstantial but instead demonstrably indicative of
the fact that
the third respondent was in fact on the mine on the night of 15 to 16
September 2016.
[14] Further, in relation to Dlamini’s
uncontested evidence that strip cables were found in bags on the
gravel road close
to the mine, this version was borne out by the
third respondent’s own version in his evidence in chief, but
ignored by the
arbitrator.
[15] In relation to the arbitrator’s
finding that it had not been proved to the third respondent was on
the mine on the night
in question, Dlamini gave direct and
uncontested evidence that when questioning Mothlutsi on the night of
15/16 September 2016,
Mothlutsi confirmed that he had seen the third
respondent and Blessing on the mine. This version was corroborated by
Mothlutsi
when he gave evidence. He gave direct evidence of having
seen the third respondent and Blessing on the mine on the night of
the
incident. This corroborating evidence was ignored by the third
respondent.
[16] During his evidence in chief,
Dlamini testified that when Blessing had made a statement that
implicated the third respondent
in stealing cable from the mine. He
further stated that he had seen the third respondent on the mine and
in response to a question
as to what he was doing there, he replied
that he had come to collect his tools. While it is correct that
Blessing was not called
as a witness at the arbitration hearing,
Dlamini was present when Blessing gave the statement. He confirmed
that the handwritten
statement produced was indeed that made by
Blessing. This evidence was ignored by the arbitrator. Insofar as the
arbitrator rejected
Mothlutsi’s evidence on the basis that no
mine access records had been produced, it was the direct and
uncontested evidence
of the applicant’s witnesses (as well as
the third respondent’s own testimony) that the mine could be
accessed without
an access card. There was further uncontested
evidence before the arbitrator that one could access the mine
premises and the underground
operation without an access card; this
much was conceded by the third respondent during cross-examination.
Dlamini testified that
if one had a key to the rack-lift, it could be
opened without a clock card, allowing access to the underground
operation. It was
not disputed that Blessing, the employee who
maintained that the rack lift, had a key to the lift.
[17] The arbitrator also ignored the
fact that Mafastela’s evidence corroborated both Blessing’s
statement and Dlamini’s
evidence. He testified that when he was
at the T-junction, a car emerged from the mine premises, and that he
observed the driver
and passenger offloading goods from the rear of
the car. This direct evidence directly corroborated Dlamini’s
version.
[18] To the extent that the arbitrator
found that it had not been proved that the third respondent was on
the mine, this finding
ignores the fact that Victor gave evidence
that the third respondent and Blessing requested him to transport
them from underground.
At no point during cross examination did the
third respondent put his version to Mothlusi that he was not on the
mine and underground
on the night in question. In short, the
arbitrator failed to consider Mothlusi’s material direct and
uncontested evidence
in conjunction with Dlamini’s direct
evidence of the third respondent’s close proximity to the mine
at the time when
he pulled the third respondent over, his evidence
that the third respondent ought to have been at home on a fatigue
shift and not
driving around anywhere in close proximity to the mine,
Dlamini’s evidence that the third respondent was wearing his
mine-issued
overalls at the time when he was pulled over, and
Dlamini’s evidence that the third respondent had been involved
in suspicious
activity on 8 September 2016, which gave rise to him
being monitored. Had the arbitrator properly considered the material
evidence
of the applicant’s witnesses, as well as the fact that
much of that evidence was uncontested, she would have arrived at the
conclusion that the evidence was not circumstantial but that it
demonstrably indicated that the third respondent was in fact on
the
mine of the night of 15/16 September 2016, and that the third
respondent was guilty of the offences with which he was charged..
[19] Further, the arbitrator failed to
consider the fact that the following versions emerged for the first
time in the third respondent’s
evidence in chief, and that
these were versions never put to any of the applicant’s
witnesses. First, that at approximately
3am on the morning of the
incident, the third respondent drove to Devon to assist a friend to
change a wheel. Secondly, that he
did not go to the mine and that his
access card was not used to access any of the turnstiles on the mine.
The third respondent
could not satisfactorily explain why these
versions had not been presented at any earlier stage. During his
cross-examination,
for the first time, the third respondent disputed
the contents of Blessing’s statement. It is trite that if a
party intends
to lead evidence to contradict a witness and to argue
that a witness’s evidence should not be accepted, there is a
duty to
cross-examine the witness on the disputed facts by putting to
the witness as much of the case that concerns that witness, so as
to
give the witness fair warning of an opportunity to explain the
contradiction, and defend his or her own character. The third
respondent’s failure to cross-examine the applicant’s
witnesses on material issues that he ultimately challenged in
his own
evidence in chief or cross-examination, ought to have prevented him
from later disputing the truth of the witnesses’
evidence. Had
the arbitrator properly assessed the evidence of the parties, she
would have arrived at the conclusion that the material
evidence of
the applicant’s witnesses ought to be accepted on the basis
that it was never meaningfully placed in dispute
by the third
respondent, and that the challenge to their evidence emerged only for
the first time during the third respondent’s
evidence in chief
and his cross-examination.
[20] To the extent that the arbitrator
rejected the evidence given by the applicant’s witnesses on the
basis that it was circumstantial,
it is trite that affected issue may
be proved by direct or indirect (circumstantial) evidence and that
circumstantial evidence
is provided from associated facts from which
the facts are inferred. It requires the decision-maker to draw
inferences. Where the
onus of proof is on a balance of probabilities
(as it was in the present instance) the proved facts should be such
to render the
inference sought to be drawn more probable than any
other reasonable inference. The evidence of the applicant’s
witnesses,
but for the statement of Blessing which may be construed
as hearsay, was not circumstantial but direct. Mothlusi gave
undisputed
and direct evidence that he saw the third respondent and
Blessing underground; Mafasetla’s direct and uncontested
evidence
corroborated Blessing’s statement, and the only
inference that could be drawn from the evidence (coupled with the
fact that
the third respondent’s contrary evidence was never
put to the applicant’s witnesses) is that the third respondent
was
guilty of the offences with which he was charged.
[21] In short, in my view, the only
decision that a reasonable decision-maker could reach on the
available evidence is that the
uncontested evidence of the
applicant’s witnesses, together with the Blessings statement,
demonstrated that the third respondent
and Blessing were being
monitored for suspicious behaviour on the night of the incident, that
they were on the mine that night,
that a mine vehicle was seen
leaving the mine and the driver and passenger of that vehicle seen
offloading something into the grass
area where stolen cables were
later found, that the vehicle returned to the mine and shortly
thereafter another vehicle was seen
leaving the mine, that the other
vehicle was seen slowing down close to the area where the cables were
later found, that the third
respondent was pulled over his personal
vehicle) close to the mine shortly after the other vehicle was seen
leaving the mine, that
the third respondent and Blessing were
responsible for the theft of the cables, that it is possible to enter
and exit the mine
without an access card even though this was not
permitted by the mine, that the third respondent ought to have been
on a fatigue
shift and not anywhere near the mine at the time. An
holistic evaluation of all of the evidence points only toward the
undeniable
conclusion that the third respondent was guilty of the
misconduct with which he was charged.
[22]
In summary, had the arbitrator properly considered and assessed the
evidence before her, she would have arrived at the conclusion
that
the third respondent was guilty of the misconduct that he was alleged
to have committed. It is the only decision to which
a reasonable
decision-maker could come on the available material. For these
reasons, the arbitrator’s award stands to be
reviewed and set
aside.
[23]
Finally, there is little merit in remitting the matter for rehearing.
All of the available evidence is before the court, and
the court is
in as good a position as any arbitrator would be to make a decision.
I intend therefore to substitute the award with
one to effect that
the third respondent’s dismissal was substantively fair.
I
make the following order:
1.
The arbitration award issued by the second
respondent on 5 February 2017 under case number MP 9398-16 is
reviewed and set aside.
2.
The award is substituted by the following:
‘
The
applicant’s dismissal was substantively and procedurally fair.’
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. A Mosam instructed by Stein Scup Attorneys
For
the respondent: In person