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[2018] ZALCJHB 396
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Sibanye Gold Limited v Commission for Conciliation Mediation and Arbitration and Others (JR971/16) [2018] ZALCJHB 396 (4 December 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR971/16
In
the matter between:
SIBANYE
GOLD
LIMITED
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
COMMISSONER
THEMA CEDA
Second Respondent
AMCU
obo SITHOLE MANLENKOSI
Third Respondent
Date
heard: 17 October 2018
Delivered:
4 December 2018
JUDGMENT
RABKIN-NAICKER,
J
[1]
This is an opposed application to review an arbitration award under
case number GAJB 17612-15. In terms of the Award, the dismissal
of
the third respondent, Sithole Manlenkosi (Sithole) was found to be
substantively unfair. He was retrospectively reinstated to
the date
of his dismissal. The applicant, Sibanye Gold Limited (Sibanye) was
ordered to pay Sithole back-pay amounting to R89 947.48
on or
before 30 April 2016.
[2]
Sithole was employed by Sibanye for 28 years. At the date of his
dismissal he was employed as a bell ringer at level 24 and
was
earning R6 842.16 a month. He was dismissed for his alleged
involvement in assisting illegal miners on 22 December 2015.
His
dismissal was in the wake of a discovery of the body of an illegal
miner hanging from the top of a skip.
[3]
The record relied on by the applicant consists of the following: a
short portion of a transcribed record (which from references
in the
transcribed record was in excess of 65 pages) and a portion of the
Commissioners typed notes. Although reference to a bundle
of
documents was made in the practice note, the bundle was not before
Court. The applicant set out averments in its founding affidavit
relating to its investigation into the death of the illegal miner and
an inspection
in
loco
.
However, this Court must consider the review on the basis of the
evidence contained in the record before the arbitrator.
[1]
The applicant took a risk by failing to file the documentary record
or was simply negligent in not doing so. There was no explanation
given for the failure to file the documentary evidence referred to in
the transcript. Nor did the applicant seek to have the matter
sent
back to arbitration on the basis that the review record was
incomplete.
[4]
In its heads of argument, the applicant submits that its review
application is based on five grounds: that the Commissioner
disregarded material evidence; that he failed to place appropriate
reliance on the uncontested evidence, when this should have
been
relevant to the weighing of probabilities; that the Commissioner made
a material error of fact; that the Commissioner failed
to apply his
mind properly to the matter that was before him. None of these
submissions references the record. Reliance for these
grounds is
placed solely on the factual averments contained in the founding
affidavit as well as reference to the Award. The supplementary
affidavit and heads of argument similarly makes no reference to the
record of the arbitration proceedings.
[5]
In the Award, the Commissioner records the following,
inter
alia
,
in his analysis of the evidence before him:
“
It
was common cause that the applicant was dismissed for allegedly
assisting an illegal miner to gain access to the underground
at shaft
no 1. The applicant disputed providing assistance to the illegal
miner.
However
no evidence was presented either directly or indirectly by the
respondent linking the applicant to the alleged misconduct.
The basis
for his dismissal was solely based on a tip-off or information
conveyed by an informer. In spite of the fact that the
informer did
not file any statement he was also not called to testify.
Initially
the respondent stated that the informer would testify in camera.
However the respondent at the later stage said the informer
would no
longer be testifying given the fact that he feared for his life.
Hearsay
evidence was general excluded (sic) since it was unreliable
especially in case where the person who has the personal information
about the facts pertaining to the allegation did not appear to tell
the forum about what he observed or knew.
The
respondent’s first witness testified he received information
from the informer and this means that he heard from the informer.
He
did not have personal knowledge of what he was told by the informer.
The truthfulness and accuracy of the allegations of this
witness
giving the hearsay could therefore not be tested. Moreover this
witness was not even on the scene when the accident occurred.
He was
called and informed about what had transpired.
However
what the second witness of the respondent said was extremely crucial
in this regard. Gideon Petrus Greyling testified that
security
officers working on the shift were interviewed and no information
could be found as to how the illegal miners gain access
into the mine
shaft. This assertion by Greyling served to illustrate that the
respondent’s case was based on mere speculation.
There
was nothing that could be deduced from the respondent’s third
witness, Jan Hendrik Du Plooy to confirm whether the applicant
assisted the illegal miners to gain entry to the shaft except to
testify that he was requested to assist with the investigations
to
determine the possibility that unauthorized persons could use the
skip to gain access underground.
The
fundamental issue for determination was not whether it was possible
for illegal miners to use the skip as the mode of transport
to gain
entry underground. It was common cause that the skip was used hence
the illegal miner’s body was found on top of
it.
The
critical issue in question was whether the applicant assisted in this
regard the illegal miner. The alleged assistance could
not be
entirely based on mere speculation and the respondent’s
witnesses’ opinions on whether the skip could be utilised
or
that the applicant provided assistance….”
[6]
In essence, the Commissioner gave no weight to the employer’s
evidence. In relation to the hearsay evidence i.e. that
an informer
told one of the company witnesses that Sithole was involved in
assisting illegal miners, he was correct in his treatment
of it.
[2]
A look at the transcribed record, such as it is, supports the
Commissioner’s decision in this matter. Mr du Plooy, the
supervisor
boilermaker, conceded that he did not know the time of the
night shift worked by Sithole on the night in question. He also
agreed
that he did not know when the incident actually happened. He
further stated that he could not say whether Sithole helped the
illegal
miner or not. It was also common cause from the transcribed
record that an illegal miner could gain entry to the shaft through
the ventilation shaft and the fence around the bank area, and that
the lock which allowed access from the skip to the platform was
not
in working order.
[7]
Sithole testified that when he was loading the skip in question he
did not look up. It was only when the skip was ascending
that he did
look up to watch its progress. At this stage he saw something hanging
from the top of the skip and immediately alerted
the bell ringer on
level three. He instructed him to check what was on top of the skip.
When he did not respond, he called him
again. He asked him what was
on top of the skip and was told that it was a person. He was
subjected to a polygraph test and was
then told that he was working
with the illegal miners. However, there was no evidence given about
the polygraph test at the arbitration.
[8]
In all the above circumstances, with due regard to the jurisprudence
of the Labour Courts, and my consideration of the record
filed by the
applicant in this matter, I am satisfied that the Award is not
susceptible to review. There was no explanation by
the applicant as
to why the bundle of documents used at the arbitration were not
before me. I take this into consideration in making
a costs order in
this matter.
[9]
I make the following order:
Order
1.
The
review application is dismissed.
2.
The
applicant to pay the costs.
H. Rabkin-Naicker
Judge of the Labour
Court of South Africa
Appearances:
Applicant:
Solomon Holmes Attorneys
(Heads of Argument drafted by Adv ZM
Navsa)
Third Respondent: C Malan
Instructed by:
Larry Dave Attorneys
[1]
This is not a case
in which the Labour Court is faced with a review application
where the record of the arbitration proceedings
sought to be
reviewed has gone missing, and there has been no proper attempt to
reconstruct it as in
Baloyi
v Member of the Executive Committee for Health & Social
Development, Limpopo and others
(2016) 37 ILJ 549 (CC).
[2]
See
Heese
obo Peters v Road Accident Fund
2012
(6) SA 496
(WCC) at para 57, where it was stated:
‘
Insofar
as the objection is based on the hearsay rule, it is necessary to
have regard to the definition and scope of hearsay evidence.
In
Subramaniam v Public Prosecutor
[1956] 1 WLR 965
(PC) it was
formulated as follows:
'Evidence of a statement
made to a witness by a person who is not himself called as a witness
may or may not be hearsay. It is
hearsay and inadmissible when the
object of the evidence is to establish the truth of what is
contained in the statement. It
is not hearsay and is admissible when
it is proposed to establish by evidence, not the truth of the
statement, but the fact that
it was made.'