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[2018] ZALCJHB 453
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Anglo American Platinum Amandelbut Complex (Pty) Ltd v Pooe and Others (JR2428/16) [2018] ZALCJHB 453; [2019] 6 BLLR 556 (LC) (7 September 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR2428/16
In
the matter
between:
ANGLO
AMERICAN PLATINUM
AMANDELBUT
COMPLEX (PTY) LTD Applicant
and
ERNEST
POOE
First
Respondent
MOLOKO
EPHRAIM PHOOKO
N.O.
Second
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION Third
Respondent
Heard:
22 August
2018
Delivered:
07 September 2018
Summary:
Review application –
unmeritorious points
in limine
– the
purpose of a charge sheet is to inform the employee of what the
allegation(s) against him/her are – to convict
an employee on a
different allegation proven during the enquiry constitutes a
mistrial.
JUDGMENT
NKUTHA-
NKONTWANA. J
I
ntroduction
[1]
This is an
application in terms of section 145 of the Labour Relations Act
[1]
(LRA). The applicant seeks an order reviewing and setting aside the
arbitration award of the first respondent (the commissioner)
under
case number LP3031-15 dated 12 October 2016; and substituting it with
an order that the first respondent’s (Mr Pooe)
dismissal was
substantively fair. Mr Pooe is opposing the review application.
[2]
The applicant’s primary ground of review is that
the
commissioner misconstrued the nature of the enquiry and as such
rendered an unreasonable award given the evidence that was
before
him.
Preliminary
points
[3]
The applicant raises two preliminary points. Firstly,
the authority
and
locus standi
of the deponent to Mr Pooe’s answering
affidavit, Ms Nomkhosi Princess Khumalo (Ms Khumalo). Secondly, that
Ms Khumalo has
no personal knowledge of what transpired during the
arbitration proceedings and as such the allegations made in the
answering affidavit
constitute hearsay evidence.
[4]
Ms Khumalo is employed by Association of Mine Workers
and
Construction Union (AMCU) as a paralegal and asserts that she is duly
authorised by AMCU to depose to the answering affidavit.
The
answering affidavit does not explain the basis of AMCU’s
involvement in these proceedings. As a result, the applicant
took
this point in its replying affidavit. In response, Mr Pooe filed a
confirmatory affidavit wherein he assets that he is member
of AMCU.
As far as one can tell, Mr Pooe’s membership with AMCU is not
disputed.
[5]
In terms of
section 2000 of LRA, if one or more of the trade union members is a
party to the proceedings before this Court, the
union may act in any
one or more capacities stipulated in section 200(1),
[2]
including acting on behalf of any of its members. Accordingly, AMCU
is entitled to act on behalf of Mr Pooe in these proceedings
and as
such Ms Khumalo has authority and legal standing to depose to the
answering affidavit.
[6]
Coming to the second point
in limine
. Ms Khumalo asserts in
the answering affidavit that she has personal knowledge as advised by
Mr Pooe. This was subsequently confirmed
by Mr Pooe in his
confirmatory affidavit. Nothing turns on the filing of Mr Pooe’s
confirmatory affidavit in response to
the applicant’s
objections. What is important is that it was filed as soon as the
objection was raised.
[7]
I hasten to mention that the LRA enjoins this Court to
ensure
expeditious resolution of industrial disputes. When it is clear that
the parties have invested their efforts into resolving the dispute on
the merits, this Court must not be bogged down with technicalities
that serve only to delay the final determination on the merits.
[8]
In my view, both points
in limine
are unmeritorious and,
accordingly, stand to be dismissed.
Background
facts
[9]
Mr Pooe had been in the applicant’s employ since
2003. He was
dismissed on 12 April 2016 on charges of gross insubordination and
racial slur. At the time of his dismissal he was
an artisan
assistant.
[10]
In a nut shell, Mr Pooe was accused of gross insubordination in that
he refused to obey a reasonable instruction that had been issued by
Mr Rodney Blackler (Mr Blackler), a renewal foreman on 8 February
2016. The instruction was directed to the crew of about nine
employees who were working with Mr Blackler to clear the area
(schoffel
the grass) at the new workshop where they were going to
move to. Mr Blackler asked Mr Lehlohonolo Fusi (Mr Fusi) to convey
his
instruction to the crew.
[11]
It is not disputed that the crew could not attend to the instruction
as they were prevented by the safety officers. In fact, Mr Blackler
conceded in cross-examination that he was not happy with the
interference by the safety officers and then addressed them in his
office.
[12]
With regard to the allegation of insubordination, Mr Blacker
testified
that Mr Pooe was rude to him during a meeting in his office
on 8 February 2016 and made it clear that he was not going to do the
work as instructed because there were people employed by the
applicant to do that work. This was disputed by Mr Pooe who was
adamant
in his evidence that the crew could not attend the
instruction because of the interference by the safety officers.
[13]
The applicant led the evidence of Mr Fusi with regard to the
allegation
of racial slur. He testified that after he had conveyed Mr
Blacker’s instruction the crew, Mr Pooe said to him ‘
This
is South Africa, people have rights, this is not Lesotho
’.
As a Mosotho, Mr Fusi was offended by the statement and reported it
to his foreman. On 18 February 2016, Mr Pooe repeated
his statement
in a rude manner. Mr Fusi testified that he was frightened by the
statement as it reminded him of the xenophobic
attacks.
[14]
Mr Pooe testified that on 8 February 2016, Mr Blackler was not happy
that the safety officers had stopped the crew from working without an
assessment report. He then rudely confronted the safety officers
stating that there is no democracy in his department. When he was
requested Mr Blacker to repeat his statement, he was stopped
by Mr
Fusi who told him not to interrupt a white person when he is talking.
It was then that he told Mr Fusi that in South Africa
people have
rights, this is not Lesotho. He denied that he ever spoke to Mr Fusi
on 18 February 2018.
Evaluation
Insubordination
charge
[15]
The
commissioner rejected Mr Pooe’s evidence that the safety
officers had stopped the crew from working as
ipse
dixit.
[3]
He arrived at this conclusion despite the common cause fact that
indeed the safety officers had stopped the crew from working on
8
February 2018. The commissioner confirmed the finding of guilty on
the charge of gross insubordination but found the sanction
of
dismissal to be too harsh. He ordered the reinstatement of Mr Pooe
without back pay and with a final written warning valid for
six
months.
[16]
The applicant seems to be content with the findings in relations to
the
charge of insubordination. Similarly, Mr Pooe did not file a
cross review. Even though the commissioner clearly misdirected
herself,
in light of the party’s stance, I deem it unnecessary
to deal with the commissioner’s conduct. In any case, having
perused the record, I am of the view that the finding in this regard
is reasonable, nonetheless.
Racial
slur
[17]
The applicant’s impugn mainly pertain to the commissioner’s
finding that Mr Pooe is not guilty on the charge of racial slur. The
commissioner is accused of misconstruing the nature of the
enquiry
and consequently rendered an unreasonable award.
[18]
The essence of the impugned finding is that the applicant failed to
prove
an offence of racial slur as both Mr Pooe and Mr Fusi are of
African descent. The commissioner mentioned, incidentally, that the
alleged utterances could have amounted to discrimination on the basis
of the country of origin but Mr Pooe was not confronted with
such an
allegation.
[19]
The applicant’s counsel, Mr Mkhatshwa mounted a fervent attack
on the commissioner’s failure to find Mr Pooe guilty of ‘
some
form of discrimination
’ once it was clear that the racial
slur allegation could not stand. The commissioner is faulted for
taking a formalistic
approach as a charge sheet need not be drafted
with the precision of a legislative draftsman, so the argument went.
[20]
The
applicant’s submissions are untenable in the circumstances of
this case. Unlike in the authorities referred to by Mr Mkhatshwa,
[4]
in this case, the charge sheet is very scrawny. To be precise, it
states that: ‘
The
following allegation(s) against your conduct has/have been made –
Gross Insubordination/Racial Slur
’.
Clearly, it makes no mention of the incident that led to the racial
slur allegation.
[21]
It stands to reason that Mr Pooe was not apprised of the details of
the
racial slur allegation. In my view, the applicant’s
persistence with the submission that Mr Pooe ought to have been found
guilty of ‘
some form of discrimination’
is
ill-considered. Firstly, it is inconsistent with the finding of the
chairperson that Mr Pooe was guilty of racial slur. It then
backs the
question as to how did the chairperson arrive at that conclusion if
it is clear that race was not an issue, a fact conceded
by the
applicant. Secondly, the applicant is clearly asking this Court to
endorse an approach which typifies a litigation by ambush.
To convict
an employee on a different charge to the one he/she was confronted
with solely because the evidence that was adduced
pointed in that
direction would constitute a mistrial.
[22]
In
Head
of the Department of Education v Mofokeng
,
[5]
the Labour Appeal Court (LAC) appositely expounded the review test
and pertinently stated that:
‘
[30]
The failure by an arbitrator to apply his or her mind to issues which
are material to the determination
of a case will usually be an
irregularity. However, … this court in
Gold Fields
…
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…
[23]
In the present case, I am convinced that the commissioner aptly
construed
the applicable test and consequently rendered a reasonable
award.
Conclusion
[24]
In all the circumstances,
the
commissioner’s findings cannot be assailed and as such the
application stands to be dismissed.
[25]
Mr Pooe did not pursue the issue of costs as he was represented by an
AMCU official.
[26]
In the premises, I make the following order:
Order
1. The
application for review is dismissed.
2.
There is no order as to costs.
__________________
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant: Advocate
M Mkhatshwa
Instructed
by: Cliffe
Dekker Hofmeyr
For
the first respondent:
Mr PD Marais
AMCU
union official
[1]
Act 66 of 1995 as amended.
[2]
Section 2000 states:
‘
(1)
A registered trade union or registered employers’ organisation
may act in any one or more of the following capacities
in any
dispute to which any of its members is a party—
(a)
in its own interest;
(b)
on behalf of any of its members;
(c)
in the interest of any of its members.’
[3]
Defines as ‘
an
arbitrary
and
unsupported
assertion
’
in the Collins Dictionary
(https://www.collinsdictionary.com/dictionary/english/ipse-dixit).
[4]
Zeelie
v Price Forbes (Northern Province)
(1) (2001) 22 ILJ 2053 (LC) at para 37; and
Woolwoths
(Pty) Ltd v Commission for Conciliation Mediation and Arbitration
and Others
(LAC)
[2011] ZALAC 15
;
[2011] 10 BLLR 963
(LAC); (2011) 32 ILJ 2455
(LAC) at para 32.
[5]
Mofokeng
[2015] 1 BLLR 50
(LAC) at paras 30 to 33; see also
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);
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia)
[2013] 11 BLLR 1074
(SCA).