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[2018] ZALCJHB 326
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Marula Platinum (Proprietary) Limited v Mafologela and Others (JR1069/2015) [2018] ZALCJHB 326 (19 September 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR1069/2015
In
the matter between:
MARULA
PLATINUM (PROPRIETARY)
LIMITED
Applicant
and
AMCU
obo PHINEAS
MAFOLOGELA
First
Respondent
THEMBINKOSI
BACA
N.O
Second
respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Third
Respondent
Heard:
31 August 2017
Delivered:
19 September 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction
and background:
[1]
With this application, the
applicant (Marula) seeks to have the arbitration award dated
29 April 2015 and issued by the
second respondent
(Commissioner) acting under the auspices of the second respondent,
the Commission for Conciliation Mediation
and Arbitration (CCMA), be
reviewed and set aside. AMCU representing Mr Phineas Mafologela
opposed the application.
[2]
Mafologela was employed by
Marula with effect from 2006. He was dismissed on 5 November 2014
and during that period he
occupied the position of Dump Truck
Operator. The dismissal followed upon allegations of misconduct
related to failure to adhere
to Marula’s safety operating
procedures. In a nutshell, it is alleged that he had attempted to
drive through a group of employees
who had gathered at the premises
for a safety meeting. Upon the Mine Manager (Mr Msekeza Luphoko)
intervening, and calling Mafologela
to apologise to his colleagues
for his conduct, it is alleged that he responded by saying ‘
fuck
off’
and threw his
hands in an upward and inappropriate motion.
[3]
An alleged unfair dismissal
dispute having been referred to the CCMA, and upon the failure of
conciliation, the dispute came before
the Commissioner for
arbitration. Two witnesses had testified at those proceedings on
behalf of Marula. The evidence of Luphoko
is summarised as follows;
3.1
The incident that led to the
dismissal took place in the morning of 23 September 2014
when a safety meeting had been convened
on site in an open area.
Prior to the commencement of the meeting, Luphoko had observed an
underground dump truck operated by Mafologela
coming from underground
in reverse mode towards the employees gathered for the safety
meeting. At the time, Luphoko was about to
step on the podium getting
ready to address the meeting. Mafologela stopped the truck at some
point having been told that he was
called to the podium where Luphoko
and others were.
3.2
As Mafologela was making his
way to the podium, Luphuko made a comment that people needed to be
disciplined for such conduct. When
Mafologela arrived at the podium,
Luphoko instructed him to apologise for his conduct to the other
employees gathered. In a defiant
manner, Mafologela’s response
to Luphoko was ‘
fuck
off’,
and threw his
hands in an outward motion, and left the podium without tendering an
apology.
3.3
Luphoko had then initiated an
investigation into the matter, leading to a disciplinary enquiry.
Luphoko further testified that Mafologela
was a trained and competent
driver, and had he apologised for his conduct as instructed, that
would have been the end of the matter.
Mafologela had instead
responded by swearing and gesturing, and thus made himself guilty of
insubordination.
3.4
Luphoko insisted under
cross-examination that Mafologela had refused to apologise, uttered
the verbal abuse and gesticulated with
his hands as he left.
[4]
Marula’s Senior
Instrumentation Technician, Mr Lazarus Mpofu’s testimony was
that;
4.1
He was on the podium and had
finished with opening prayers for the meeting when he had also
observed Mafologela coming from underground
in reverse gear thus
posing a danger to other employees on the open road and those
gathered for the meeting. He had shouted at
Mafologela in an attempt
to have him to stop, further asking other employees close to him to
tell him to stop as he could have
caused injury to other employees.
Mafologela only stopped after the intervention of Luphoko, who had
utilised the loudspeaker system
on the podium, and who also told him
to come to the podium to explain his conduct.
4.2
Mafologela came to the podium
as instructed by Luphoko, and was informed by the former that he
needed to be disciplined for his
conduct. Mpofu was asked by
Luphoko to take Mafologela’s company number and it was at that
stage that the latter had
uttered the words attributed,
simultaneously gesticulating inappropriately with his hands.
Mafologela according to Mpofu also told
Luphoko that he could ‘do
whatever he wanted to do’.
4.3
Mpofu had further testified
that management was concerned with safety on the premises, and that
Mafologela had failed to provide
a safe environment hence Luphoko had
seen the need to intervene. Mpofu could not say whether he had heard
whether Mafologela was
asked by Luphoko to apologise, but
Mafologelo’s hand gestures and the words he had uttered showed
disrespect to a senior
manager.
[5]
A third witness, Mr Edwin
Tshiguvho also confirmed that Mafologela was told by Luphoko over the
loudspeaker to stop the truck and
to come to the podium to apologise
to his fellow employees. Instead he verbally abused Luphoko as he
gestured with his hands, telling
him ‘to do what he wanted to
do’.
[6]
Mafologelo’s testimony
was that he had just finished his night shift and was operating the
truck from underground behind other
similar trucks. At some point
whilst he was stationary and waiting for pedestrians to pass, he had
noticed Luphoko shouting but
could not hear what he was saying. He
then realised that he was being called to the podium and on his way,
he heard Luphoko
saying that he was going to dismiss him.
[7]
When he reached the podium,
Luphoko asked him what he was taught at the training centre. Before
he could respond, he was again told
that he was going to be
dismissed. He then asked Luphoko as he was gesturing with his hands
in disbelief, what he had done wrong.
Luphoko then asked for his
company number which he had given and he then left the podium. The
following day he reported at the
premises but was prevented from
resuming his duties.
[8]
Mafologela denied having been
asked to apologise or having verbally abused Luphoko. He further
denied having used inappropriate
hand gestures as he spoke to him and
testified that he normally used hand gestures when speaking to
people, and it was not intended
to show disrespect. He denied that he
was aware that a safety meeting was in progress in the open area and
contended that he had
stopped on his own when he was subsequently
asked to come to the podium. He had further denied that his conduct
placed anyone’s
life in danger as he had complied with all the
rules applicable when operating the truck.
[9]
Mr Wilkins Phoku’s
testimony on behalf of Mafologela was that he was a safety
representative and a week prior to the incident,
a meeting had been
held with management where concerns were raised regarding the
convening of meetings in an open area where machinery
was moving back
and forth. He was close to the podium when he noticed
Mafologela operating the truck and being called to
the podium. He
overheard Luphoko (speaking in isiZulu) saying that Mafologela should
be called to the podium and be dismissed.
When Mafologela arrived at
the podium, Luphoko asked him what he had been taught at the training
centre, and told him that he was
dismissed. Mafologela during his
conversation with Luphoko was gesturing with his hands. Luphoko had
then demanded Mafologela's
company number which he had duly given and
left.
The
award:
[10]
The Commissioner came to the
conclusion that Marula had not discharged the onus of proving that
the dismissal of Mafologela was
for a fair reason, and had ordered
that he be reinstated with retrospective effect, and be paid an
amount of R77 803.84 in
back-pay. The Commissioner’s
reasoning was as follows;
10.1
Mpofu’s recollection of
events was not convincing and were ‘akin to trumped-up defence
intended at justifying the decision’
that was taken against
Mafologela. This was due to the fact that despite Mpofu having stated
that he was within earshot of the
podium and had heard the abusive
language uttered without provocation, he had denied having heard
Luphoko asking Mafologela to
apologise to the other employees;
10.2
Mafologela according to the
Commissioner was ‘level-headed and would hardly insult or
offend anyone including superiors, without
provocation’, and
was not asked to apologise as testified by Luphoko and Tshiguvho;
10.3
Mpofu and Tshiguvho were found
to be evasive witnesses in regard to whether driving a truck in
reverse was prohibited on the mine;
10.4
Mafologela and Phoko’s
version that Luphoko had told the former that he would be dismissed,
caused him to be surprised hence
he had gestured in disbelief and
frustration at what he was being told. Had Mafologela shown his
‘superiors his middle finger’
then a dismissal would have
been confirmed. The gesture in question was purely a physical
reaction to someone who was surprised,
and did not constitute
insolent behaviour. The inability of Marula’s witnesses to
corroborate each other’s version
regarding what Mafologela had
said to Luphuko indicated that Marula was unable to prove that there
was verbal abuse;
10.5
It was improbable that
Mafologela could have verbally abused Luphoko. None of the employees
whose lives were allegedly put at risk
by Mafologela had testified in
the proceedings. Mafologela had observed the rules of the mine whilst
operating the truck, had not
placed anyone’s life in danger,
and he did not break any rule when he operated the truck in reverse
gear.
The
grounds of review:
[11]
Marula seeks to have the award
reviewed and set aside on various grounds, including that;
11.1
The Commissioner committed a
gross misconduct and/or reviewable irregularity in the conduct of
proceedings in making a credibility
finding against Mpofu and thereby
concluding that the version of Mafologela was more probable;
11.2
The conclusion reached as
above was not rationally justifiable and was one which no reasonable
decision maker could have reached;
11.3
The Commissioner committed a
gross misconduct and/or reviewable irregularity in the conduct of the
arbitration proceedings, in failing
to make a credibility finding
against Mafologela and his witness, Phoku;
[12]
In opposing the review
application, it was submitted on behalf of Mafologela that there was
no basis for the arbitration award to
be set aside as the
Commissioner understood the test to be applied in determining the
matter; that the Commissioner had the power
to make credibility and
reliability findings as he had done in this case, and had therefore
not committed any misconduct or irregularity.
It was further
submitted that the decision of the Commissioner was supported by
evidence, and was one that any commissioner could
have reached.
The
legal framework and evaluation:
[13]
To the extent that the grounds
of review essentially revolves around allegations of gross
irregularity committed by the Commissioner
in the conduct of
proceedings, it has since been held in
Herholdt
that;
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2)(a
)
of
the LRA. For a defect in the conduct of the proceedings to amount to
a gross irregularity as contemplated by s 145(2)(a)(ii)
…the
Arbitrator must have misconceived the nature of the inquiry or
arrived at an unreasonable result. A result will only
be unreasonable
if it is one that a reasonable Arbitrator could not reach on all the
material that was before the Arbitrator.
Material errors of
fact, are not in and of themselves sufficient for an award to be set
aside, but are only of any consequence
if their effect is to render
the outcome unreasonable.’
[1]
[14]
It cannot be doubted in this
case that the Commissioner was confronted with disputed facts. In
such instances, and in accordance
with the CCMA Guidelines on
Misconduct Arbitrations, a Commissioner is obliged, to have regard to
the probabilities of the contending
versions, the reliability of
witnesses, and their credibility. It is thus required of a
Commissioner to indicate the reasons, based
on the assessment of
these factors and the evidence, as to why the one version was
preferred over the other
[2]
.
Thus, reliance by the Commissioner on unsupported evidence, or
evidence not placed before him or her, or speculation, or evidence
insufficiently reasonable to justify a conclusion, will render the
award reviewable. The same principle will be applicable where
the
Commissioner for reasons unknown, completely ignores material
evidence, especially one that was not contradicted
[3]
.
[15]
Applying the above principles
to the facts of this case, and further having had regard to the
record of proceedings, the award and
the submissions made on behalf
of the parties, it is my view that the conclusions reached by the
Commissioner that Marula had not
discharged the onus placed on it to
prove the misconduct are clearly not supported by the evidence before
him. My conclusions in
this regard are fortified by the following;
[16]
It was common cause that
Mafologela was seen operating the dump truck in reverse mode as he
emerged from underground onto the open
road in the mine premises.
Luphoko and Mpofu viewed such conduct as posing a danger to other
employees. It was further common cause
that Mafologela was called to
the podium where employees were gathered for a safety meeting. The
issue is whether he was instructed
by Luphoko to apologise to the
other employees for his conduct, and whether in response, he had
uttered the verbal abuse attributed
to him and gesticulated in an
inappropriate manner.
[17]
It can be accepted from the
evidence of both Mpofu and Tshiguvho that operating the dump truck in
reverse mode on the premises was
not necessarily prohibited. The
issue however is whether Mafologela did so without endangering the
safety of other employees on
the premises.
[18]
Mafologela may have observed
the safety rules as he operated the machinery as he had alleged. It
is however improbable in my view
that he would have been randomly
selected amongst all the other trucks and vehicles operating in the
area at the time, and be told
to stop unless Luphoko as Mine Manager
and Mpofu had a valid reason to believe that his conduct posed a
danger to other employees.
[19]
Having been told to stop
operating the truck and to approach the podium, Mafologela conceded
that Luphoko had asked him what it
was that he was taught at the
training centre. He nonetheless denied having been instructed to
apologise to other employees or
having uttered the abusive language
as he gestured with his hands. The Commissioner’s point of
departure in this regard was
to attack the credibility of Mpofu on
the basis that even though he was within earshot of Luphuko at the
time of the incident,
he had heard everything said by Luphoko and
Mafologela, except the instruction to the latter to apologise.
Mpofu’s credibility
was also attacked on the basis that he was
evasive when asked whether it was against the rules to operate the
truck in reverse
mode. The Commissioner having found Mpofu’s
recollection of events unconvincing, proceeded to attack his evidence
as being
‘
akin to
trumped up defense intended at justifying the decision that was taken
agains
t’ Mafologela.
[20]
The Commissioner’s
conclusions in this regard are extraordinary in the extreme, and it
is not clear what the basis thereof
was. I have had regard to the
record of arbitration proceedings and in particular, Mpofu’s
evidence. His cross-examination
centred around whether there was a
rule against operating machinery in reverse, whether he had heard
Luphoko instructing Mafologela
to apologise, and whether the abusive
language in question was uttered. I accept that Mpofu might have been
long-winded in his
response to a question whether it was against the
rules or not to operate the truck in reverse gear, but ultimately,
his answer
was that it was not.
[21]
The issue of whether or not
there was a rule prohibiting the operation of trucks in reverse mode
was moot in any event in the light
of the concession, and was by all
accounts not definitive of Mpofu’s credibility and overall
reliability of his testimony.
The only issue for consideration in
that regard was whether Mafologela had operated the truck in reverse
mode which posed a safety
concern to other employees necessitating
the intervention of Luphoko and Mpofu.
[22]
In regards to whether Mpofu was
evasive when asked about whether he had heard Luphoko instructing
Mafologela to apologise, his direct
response was that he had not
heard it, and I further fail to appreciate how a negative inference
could have been drawn from that
response.
[23]
Crucial however is that Mpofu
consistently stated that he was close to Mafologela on the podium
when he uttered the verbal abuse.
Not once was it put to him during
his cross-examination that his evidence in that regard was motivated
by any desire to have Mafologela
dismissed for no reason, or was a
defence ‘trumped up to justify charges’ against
Mafologela. On the contrary, Mpofu
repeatedly testified that
Mafologela had uttered the abuse as he gestured with his hands
because he might have been emotional,
angry or tired. If Mpofu was
indeed bent on seeing Mafologela dismissed for untoward reasons, I
fail to appreciate the reason that
he would seek to offer some
justification that might excuse his conduct.
[24]
For the Commissioner to
therefore have drawn adverse inferences from Mpofu’s evidence
when his version withstood cross-examination,
or where he had made
concessions, or when certain versions were not put to him, clearly
that amounts to gross irregularity. It
is not the function of a
Commissioner to find some evidence or rely upon facts that were never
presented or tested, even when making
credibility findings. Clearly
the Commissioner’s conclusions that Mpofu sought to justify
trumped up charges against Mafologela
are based on nothing but
conjecture.
[25]
For reasons that are not
discernable, the Commissioner heaped praises on Mafologela,
describing him as ‘
a
level-headed individual who would hardly insult or offend anyone
without provocation’
.
The basis of that assessment is not clear when contrasted with the
overall objective facts gleaned from the record of proceedings,
and
from which the following conclusions can be made;
25.1
It should be accepted that
Mafologela was indeed told to stop operating the truck as he had done
so in an unsafe manner, even if
there was no rule against operating
the truck in reverse mode;
25.2
As his conduct of operating the
truck at the time posed a danger to others, Luphoko out of concern
had instructed Mafologela to
approach the podium to explain his
conduct to his colleagues who had gathered for a safety meeting.
25.3
The high watermark of
Mafologela’s testimony was that after stopping the truck and as
he approached the podium, he had heard
Luphoko saying that he was
going to dismiss him, which threat he had repeated, hence his
gestures. It is remarkable that Mafologela
could have heard Luphoko
say that he was to be dismissed, and yet missed everything else that
Luphoko said, including instructing
him to apologise to his
colleagues for his conduct or to explain his conduct. Even if Mpofu
had not heard the instruction, both
Luphoko and Tshiguvho confirmed
that such an instruction was issued, and were steadfast that
Mafologela had uttered the verbal
abuse as he gestured with his
hands. According to Tshiguvho and Mpofu, Mafologela as part of his
response to the instruction to
apologise, also told Luphoko that he
could do whatever he wanted to do, something which does not appear to
have been challenged
during the arbitration proceedings.
25.4
Like Mafologela’s
testimony, Phoku on his behalf also for some reason, heard everything
else that Luphoko had said to Mafologela,
except the instruction to
apologise, and the verbal abuse. It cannot be a coincidence that both
Mafologela and Phuko would have
selective hearing abilities, a factor
which the Commissioner completely ignored when making his findings.
25.5
In the light of Mafologela’s
bare denials as contrasted with the evidence of three corroborating
versions of Luphoko, Mpofu
and Tshiguvho especially in regard to the
verbal abuse, and in the absence of any other conspiracy theory, the
invariable conclusion
to be reached is that indeed an instruction was
issued to Mafologela to apologise for his conduct, and it is
improbable that he
could have heard anything else said to him as he
approached the podium, except the instruction to apologise.
Furthermore, the probabilities
are even higher that that indeed he
had uttered the verbal abuse towards Luphoko. Even if Luphoko might
have belatedly said so,
all he needed in the light of the seriousness
with which safety was dealt with at the mine, was an apology from
Mafologela. However,
that instruction was met with defiance and
expletives, which was wholly unprovoked and unwarranted under the
circumstances.
[26]
It was further common cause
that as Mafologela responded to the instruction to apologise in the
manner he had, he had also gestured
with his hands, which conduct
according to Luphoko, Mpofu and Tshiguvho, was inappropriate. It is
not clear from the record as
to how those gestures were demonstrated,
and the Court will refrain from making any findings in that regard.
The Commissioner’s
conclusions however that his findings would
have been different had Mafologela’s gesture been in the form
of ‘showing
a middle finger’ cannot be sustained. The
standard of impudence/insolence/insubordination cannot be met or
raised solely
by a ‘show of the middle finger’. Other
less crude or rude gestures can be indicative of such conduct.
[27]
Having found that Mafologela
was indeed instructed to stop operating the truck as it had posed a
danger to other employees, and
to apologise for his conduct, and
further having found that on the evidence, the probabilities are high
that he had indeed responded
with abusive language towards a Mine
Manager, the next issue for consideration is whether a sanction of
dismissal was fair.
[28]
In
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others
,
it was held that;
“…
acts
of mere insolence and insubordination do not justify dismissal unless
they are serious and wilful. A failure of an employee
to comply with
a reasonable and lawful instruction of an employer or an employee’s
challenge to, or defiance of the authority
of the employer may
justify a dismissal, provided that it is wilful (deliberate) and
serious. Likewise, insolent or disrespectful
conduct towards an
employer will only justify dismissal if it is wilful and serious. The
sanction of dismissal should be reserved
for instances of gross
insolence and gross insubordination as respect and obedience are
implied duties of an employee under contract
law, and any repudiation
thereof will constitute a fundamental and calculated breach by the
employee to obey and respect the employer’s
lawful authority
over him or her.
Thus,
unless the insolence or insubordination is of a particularly gross
nature, an employer must issue a prior warning before having
recourse
to the final act of dismissal”
[4]
[29]
In this case, Mafologela’s
conduct was viewed by a Mine Manager to have posed a threat to the
safety of other employees. He
was instructed to explain himself and
to apologise to his colleagues for his conduct, which had he done, it
would have been the
end of the matter. Instead, he wilfully responded
to the instruction in a defiant manner accompanied by crude verbal
abuse and
further dared Luphoko to ‘do whatever he wanted to
do’. Surely that response not only posed a serious challenge to
Luphoko’s authority as a Mine Manager, but was also demeaning
of his authority. Throughout the arbitration proceedings, not
once
had he shown any form of contrition. Even if he had been told that he
was going to be dismissed by Luphoko, to the extent
that the conduct
for which he was expected to have accounted for posed a threat to the
safety of others, coupled with his crude
and defiant response thereto
in front of other employees, that in my view was serious enough to
call for the harshest sanction.
It is unacceptable for a junior
employee to verbally abuse and dare a senior employee, especially in
front of other subordinates.
[30]
It follows from the above
conclusions that the conclusions reached by the Commissioner that
Marula had not discharged the onus placed
on it to prove that the
misconduct in question was committed, are conclusions which a
reasonable decision maker could not have
come to in the light of the
material presented before him. Further in the light of these
conclusions and the complete record of
proceedings that is before the
Court, it is found that no purpose would be served by remitting the
matter to the CCMA, as the court
is in a position to substitute the
Commissioner’s findings. I have further had regard to the issue
of costs, and based on
the requirements of law and fairness, I hold
the view that a costs order is not warranted in this case.
[31]
Accordingly, the following
order is made;
Order:
1.
The arbitration award issued by
the Second Respondent under case number LP993/15 is reviewed, set
aside and substituted with an
order that the dismissal of Mr Phineas
Mafologela by Marula Platinum (Proprietary) Limited was fair.
2.
There is no order as to costs
____________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants: J Norval of Edward Nathan Sonnenbergs INC
For
the Third Respondent: PD Marais (AMCU Official)
[1]
Herholdt v Nedbank Ltd (COSATU as
amicus curiae)
[2012]
11 BLLR 1074
(SCA) at para 25; See also
Belloord
28 CC v CCMA Johannesburg and Another
(JR1499/17) [2018] ZALCJHB 112 (15 March 2018) at paragraphs [10] –
[11], where Van Niekerk J held that:
“
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.”
“
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.”
[2]
See
S
asol
Mining (Pty) Ltd v Ngqeleni NO & Others
(2011)
32 ILJ (LC) at para [9];
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell & Kie SA
and Others
2003
(1) SA 11
(SCA) para 14I–15E
[3]
See
Bestel
v Astral Operations Ltd and Others
[2011] 2 BLLR 129
(LAC)
at
paras 13 - 15
[4]
[2015] 5 BLLR 484
(LAC); (2015) 36
ILJ 1511 (LAC) at para [22]