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 390
|
|
NUMSA obo Makgae and Others v Civil and Power Generation Projects (Pty) Ltd and Others (JR329/16) [2018] ZALCJHB 390 (30 November 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no:
JR329/16
In
the matter between:
NUMSA
OBO MAKGAE AND 3
OTHERS Applicant
and
CIVIL
AND POWER GENERATION
PROJECTS
(PTY)
LTD First
Respondent
MEIBC
Second
Respondent
DAVID
G
LEVY
Third
Respondent
Heard
:
21 November 2018
Delivered
:
30 November 2018
Summary:
An opposed review application – An award issued in terms of
section 188A has the same status as an arbitration award –
the
test for review remains that of a decision falling within the bounds
of reasonableness. Held (1) The application is dismissed.
(2) Each
party to pay its own costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is an application seeking
to review an award issued in terms of section 188A of the Labour
Relations Act
[1]
(LRA). The applicant contends that the arbitration award is not one
that a reasonable arbitrator may arrive at. It is an award
tainted
with defects. The application is opposed by the first respondent.
Background
facts
[2]
The first respondent is subcontracted to
Mitsubishi, one of the primary contractors at the Eskom SOC (Pty) Ltd
- Medupi Power Station
construction site. It provides scaffolding,
insulation and sheet metal work. It employed the applicant’s
members, namely,
Makgae, Sindane, Sibiya and Shabalala (hereinafter
referred to as the dismissed employees). On or about 25 March 2015
employees
at Medupi Power Station embarked on some industrial action
and submitted a memorandum of demands to Eskom.
[3]
Following the above, the dismissed
employees were charged with acts of misconduct; involving
participation in an unprotected industrial
action (25 March-30 April
2015); failure to comply with the Labour Court order served on 17
April 2015 and continued refusal to
follow a direct and lawful
instruction in that the dismissed employees ignored ultimatums issued
on 24 and 25 April 2015 instructing
them to report for duty.
[4]
Following an arbitration conducted in terms
of the provisions of section 188A of the LRA, the dismissed employees
were found guilty
and dismissed. Aggrieved by their dismissal, the
applicant launched the present application on their behalf.
Grounds
of Review
[5]
The
applicant alleges that in returning a finding of guilty on the charge
of participation in an unprotected strike action for the
duration in
question, the third respondent committed a gross irregularity since
there was no evidence presented proving participation.
The third
respondent failed to take into account the evidence tendered in
defence by the dismissed employees, thereby committing
misconduct.
Certain of the findings by the third respondent were unreasonable and
irrational. The award is not one that a reasonable
arbitrator faced
with the same facts and evidence could have made. In supplementing
the grounds already submitted, the applicant
alleged that the third
respondent descended into the
arena
and such affected his impartiality. During argument, Mr Ngako
fashioned a further ground not properly
[2]
foreshadowed in the papers to the effect that the third respondent
did not invite mitigating factors. He simply ordered dismissal
without more.
Evaluation
[6]
By now it is trite what the test for review in
this Court is. The allegation that there was no evidence that the
applicants participated
in an unprotected strike action seem to
ignore the evidence of Mr Weideman, Mr Wilkins, Mr Hart and Mr
Schutte. All of them testified
before the third respondent with
regard to the events of the strike action. Further, the dismissed
employees gave an account of
what happened, such is evidence. It is
one thing to argue that there was no evidence, it is another to argue
that the evidence
was not sufficient. It seems to me that because the
dismissed employees denied participation, the applicant is concerned
about
the sufficiency of the evidence “disproving” their
denial.
[7]
Arbitration proceedings are civil proceedings. The
standard of proof is that of the preponderance of probabilities. As
such hearsay
and circumstantial evidence is admissible in arbitration
proceedings. Where a decider of facts is faced with conflicting
versions,
in order to arrive at a conclusion, he or she must weigh
the probabilities. The exercise of weighing probabilities may include
making of credibility findings. If a decision maker makes credibility
findings
en route
conclusions, he or she does not commit any irregularity nor
misconduct.
[8]
Perusal of the detailed award by the third
respondent reveals that the third respondent conducted a careful and
detailed analysis
of the evidence presented before him in order to
resolve the conflicting versions. His findings were supported by the
evidence
presented before him. I have no basis to fault this finding:
“
100.
I find the argument difficult to accept in the light of the testimony
of Weideman and Schutte to the effect that the march
had the obvious
blessing of the full time NUMSA shop stewards (Lebone) and that
Modike himself signed the memorandum of demand
in which it was
expressly stated that there would be a “
total
withdrawal of labour
”
in the event that the demands were not met by 27 March 2015.”
[9]
It is crystal clear that the third respondent was
actuated into the decision by weighing the balance of probabilities.
Makgae himself
testified that he joined the march. On the balance of
probabilities, the third respondent rejected the evidence of Makgae
that
he had no option but to join the march. He found that he acted
voluntarily on the probabilities.
[10]
The duty of a court of review is to assess that a
decision is one that falls within the bounds of reasonableness. As a
court of
review, I peep into the merits, not to substitute the
decision of the decision maker, but to establish whether the decision
is
consistent with the evidence led. I may not like the finding, but
I cannot usurp the powers of the decision maker. Accordingly,
the
third respondent did not commit a gross irregularity as alleged. This
ground of review is bound to fail.
[11]
Rejecting evidence as being false does not suggest
that the evidence was not considered. A proper reading of the award
reveals that
the third respondent took the trouble of considering
each of the dismissed employees’ defences. If he does not
accept the
defences for reasons of improbability and or credibility,
it is not the duty of this Court to force, as it were, the decision
maker
to accept the defences. The third respondent did not commit any
misconduct which would vitiate his award in law. Equally, this ground
is doomed to fail.
[12]
The
allegation of descending into the
arena
is more a matter of opinion than fact. Section 138 of the LRA,
behooves an arbitrator to resolve a dispute fairly, quickly, deal
with the substantial merits and with the minimum of legal
formalities. Therefore, any approach adopted by an arbitrator that
conforms
with the requirements of s 138 is beyond scrutiny. It is, in
my view, actually inappropriate to dictate the approach to be adopted
by an arbitrator. Of course, if the approach is tainted by elements
of unfairness, it shall not meet with the approval of the supervisory
body – the Labour Court. To my mind an arbitrator is entitled
to question the witnesses that testify before him or her.
[3]
[13]
Accordingly, I am not satisfied that the alleged
descent is one that is unfair and unjustifiable. It is in order for
an arbitrator
to show incredulity to a witness. After all it is his
or her duty to arrive at the truth. This ground must fail too.
[14]
The ground that the third respondent was obligated
to invite mitigating factors depends largely on whether such is
commanded in
the LRA. Section 188A (9) provides that an arbitrator
conducting an inquiry in terms of the section must, in the light of
the evidence
presented and by reference to the criteria of fairness
in the Act, rule as to what action, if any, may be taken against the
employee.
The section does not prescribe that mitigating factors must
be invited. Schedule 8 of the LRA does not make such a requirement.
Participating in an unprotected strike for any duration is a serious
misconduct. In terms of Schedule 8, dismissal as a sanction
is
appropriate for a serious misconduct. It is not always the case that
before a sanction of dismissal can be viewed as being fair,
evidence
of a broken trust relationship must be led. A serious misconduct by
itself breaks a trust relationship.
[15]
In summary, the first respondent did not commit
any irregularity nor misconduct. His findings fall within the bounds
of reasonableness.
The award is free of any defect and is thus not
reviewable in law.
[16]
Regarding costs, I am of a view that an
appropriate order is for each party to bear its own costs.
[17]
In the results I make the following order:
Order
1.
The application
is dismissed;
2.
Each Party to pay its own costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Mr X Ngako of Ruth Edmonds Attorneys Inc, Observatory.
For
the 1
st
Respondents: Mr D Pretorius of Fluxmans Inc,
Rosebank.
[1]
66 of 1995, as amended.
[2]
In the supplementary affidavit an allegation was made that there was
an absence of evidence of trust relationship having deteriorated.
[3]
See: Impala Platinum Ltd v Jansen [2017] 38 ILJ 896 (LAC) at paras
23-29.