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[2018] ZALCJHB 426
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AMCU obo Mkhatshwa and Others v Mashegoana and Others (JR821/15) [2018] ZALCJHB 426 (21 December 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no: JR 821/15
In
the matter between
AMCU
OBO THULI MKHATSHWA & 1
OTHER Applicant
and
MAGAELE
ALFRED MASHEGOANA (cited in his capacity as
Commissioner
of the Commission for Conciliation,
Mediation
and
Arbitration) First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION Second
Respondent
BHP
BILLITON - DOUGLAS
COLLIERY
Third
Respondent
Delivered: 21 December
2018
JUDGMENT
MAHOSI, J
Introduction
[1]
This is an application in terms of section 145 of the Labour
Relations Act
[1]
(LRA) to review
and set aside the arbitration award issued by the first respondent
(arbitrator) under the auspices of the second
respondent, the
Commission for Conciliation, Mediation and Arbitration (CCMA), under
case number MP3707-12, dated 3 May 2015 in
terms of which the
arbitrator found that the dismissal of the applicant’s members,
Ms Thuli Mkhatshwa and Mr Phillip Phiri
(the employees) was both
procedurally and substantively fair.
[2] The applicant seeks
an order to substitute the award with an order to the effect that the
dismissal of the employees was both
procedurally and substantively
unfair. Ms Mkhatshwa seeks retrospective reinstatement and Mr Phiri
seeks compensation. Alternatively,
that this matter be remitted to
the CCMA to be heard
de novo
before an arbitrator other than
the first respondent.
[3] The key question is
whether the arbitrator’s decision is one that a reasonable
decision-maker could not reach.
Background
[4]
Prior to outlining the applicant’s
case in detail and considering the issues that gave rise to the
claim, it is necessary
to outline the facts that form the relevant
background to the dispute between the parties.
[5]
Ms Mkhatshwa was employed by
Douglas
Colliery
on 3 January 2001 in a capacity of
a boilermaker. In 2008, Ms Mkhatshwa was involved in a car accident
and sustained injuries to
her back and spine, which affected her
performance of her functions as a boilmaker. Mr Phiri was employed by
Douglas Colliery
in
a capacity of an electrician on 6 November 2006. Mr Phiri was
involved in an accident (chemical spill), which resulted in him
losing sight on his right eye.
[6]
On 19 June 2007, the employees were issued with surety letters during
arbitration proceedings, which guaranteed them employment
in similar
positions within
BHP
Billiton Energy Coal South Africa Proprietary Limited
(
BECSA)
after the closure of Douglas Colliery. The guarantee of employment
was conditional upon them being declared fit to perform
work by an
Occupational Medical Practitioner (OMP) in compliance with the Mine
Health and Safety Act
[2]
(MHSA).
[7] On 31 August 2011 the
employees’ employment was terminated for operational reasons
due to the closure of Douglas Colliery.
As a result, they underwent
exit medical examinations and they were paid their severance
packages.
[8] In order to comply
with the surety letters, BECSA explored suitable positions for the
employees at other mines. The employees
were taken off Douglas
Colliery’s payroll and were paid through a contractor, Amadwala
Risk Solution (Amadwala) which administered
employee’s benefits
on behalf of BECSA.
[9] In November 2011, the
employees were requested to report for work at Middleburg Mine, which
is the sister mine to Douglas Colliery
within the BECSA structure. On
reporting for duty, the employees were required to undergo an initial
entry medical examination
for the purpose of assessing and evaluating
their fitness. Both employees were found to be unfit, which decision
they did not appeal
in terms of section 20 of the MHSA. On 31 March
2012, the employees were dismissed.
[10]
Aggrieved by the employees’ dismissals, the applicant referred
an unfair dismissal dispute to the CCMA on 21 May 2012.
The dispute
was unsuccessfully conciliated on 8 June 2012. The arbitration
process was scheduled for 17 June 2012 on which date
the employees’
claim was dismissed due to their non-attendance.
[11] The applicant
applied for rescission of the dismissal ruling on the basis that the
employees did not receive a notice of set
down. The rescission
application was granted on 16 October 2012. The third respondent took
the ruling on review to the Labour Court
and the matter was remitted
to the CCMA. The matter was set down for arbitration on 24 February
2015, but the arbitrator indicated
that the rescission application
should be heard
de novo
. The rescission application was
accordingly heard and granted. The dispute was set down again for
arbitration on 23 April 2015.
[12] At the end of the
arbitration, the arbitrator issued an award in terms of which he
found that the employees’ dismissal
was procedurally and
substantively fair. It is this award that is the subject matter of
this review application.
Grounds of Review
[13]
Although the applicant raised a number of
grounds for review, the question is mainly whether the arbitrator
exceeded his powers and failed to properly,
rationally and justifiably apply his mind to the facts, the LRA and
the CCMA rules.
[14] The respondent
opposed this application on the basis that the applicant is relying
on the process-related conduct of the arbitrator,
which on its own
does not render the award unreasonable and reviewable.
Applicable legal
principles
[15]
Arbitration awards are reviewable in terms of section 145 of
the LRA, which provides that any party to a dispute who alleges a
defect
in any arbitration proceedings under the auspices of the
commission may apply to the Labour Court for an order setting aside
the
arbitration award.
[16]
The
principle, as laid out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
,
is whether the decision reached by the commissioner is one that a
reasonable decision maker could have reached. Therefore, the
test on
review is not whether the commissioner came to a correct decision
that the court sitting in the same position as the commissioner
would
have reached. The test is whether the commissioner arrived at a
reasonable decision based on the material before him or her.
[17]
The applicant challenged the award on the basis that the arbitrator
failed to reflect all the evidence in the award.
Section
138(1) provides for the manner in which arbitrations may be conducted
and it provides as follows:
‘
(1)
The commissioner may conduct the
arbitration in a manner that the commissioner considers appropriate
in order to determine the dispute
fairly and quickly, but must deal
with the substantial merits of the dispute with the minimum of legal
formalities.
…
(6) The commissioner must
take into account any code of good practice that has been issued by
NEDLAC or guidelines published by
the Commission in accordance with
the provisions of this Act that is relevant to a matter being
considered in the arbitration proceedings.
(7)
Within 14 days of the conclusion of the arbitration proceedings -
(a) the commissioner must
issue an arbitration award with brief reasons, signed by that
commissioner.’
[18]
The LRA requires the arbitrator to issue the award with brief reasons
within 14 days from the date of the hearing. There is
no requirement
for arbitrators to reflect all the evidence led at the arbitration
proceedings in their awards. What is required
is that they must
expeditiously resolve the real dispute between the parties and act
fairly to all the parties.
[4]
In
doing so, they must assess all the evidence before them before
arriving at their conclusion. There is therefore no merit to
this
ground of review.
[19] The applicant
submitted that the arbitrator should have rejected Mpembe’s
evidence on the basis that it was hearsay and
should have found that
the third respondent failed to follow a fair procedure. The issue is
whether the arbitrator’s finding
that the third respondent
attempted to assist the employees through a process of consultation
and proper consideration of alternatives
to dismissal was supported
by evidence before him.
[20]
Section 188(2) of the LRA provides as follows:
‘
any
person considering whether or not the reason for dismissal is a fair
reason or whether or not the dismissal was effected in
accordance
with a fair procedure must take into account any relevant code of
good practice issued in terms of this Act
’
.
[21] Schedule 8 of the
LRA deals with some of the key aspects of dismissal for reasons
related to conduct and capacity. Items 10
and 11 thereof provide as
follows:
‘
10.
Incapacity: Ill-health or injury
(1) Incapacity on the
grounds of ill-health or injury may be temporary or permanent. If an
employee is temporarily unable to work
in these circumstances, the
employer should investigate the extent of the incapacity or the
injury. If the employee is likely to
be absent for a time that is
unreasonably long in the circumstances, the employer should
investigate all the possible alternatives
short of dismissal. When
alternatives are considered, relevant factors might include the
nature of the job, the period of absence,
the seriousness of the
illness or injury and the possibility of securing a temporary
replacement for the ill or injured employee.
In cases of permanent
incapacity, the employer should ascertain the possibility of securing
alternative employment, or adapting
the duties or work circumstances
of the employee to accommodate the employee’s
disability.
(2) In the process of the
investigation referred to in subsection (1) the employee should be
allowed the opportunity to state a
case in response and to be
assisted by a trade union representative or fellow employee.
(3) The degree of
incapacity is relevant to the fairness of the dismissal. The cause of
the incapacity may also be relevant. In
the case of certain kinds of
incapacity, for example alcoholism or drug abuse, counselling and
rehabilitation may be appropriate
steps to consider.
(4) Particular
consideration should be given to employees who are injured at work or
who are incapacitated by work-related illness.
The courts have
indicated that the duty on the employer to accommodate incapacity of
the employee is more onerous in these circumstances.
11. Guidelines in
cases of dismissal arising from ill-health or injury.
Any
person determining whether a dismissal arising from ill health or
injury is unfair should consider -
(a)
whether or not the employee is capable of performing the work; and
(b) if
the employee is not capable -
(i)
the extent to which the employee is able to perform the work;
(ii) the extent to which
the employee’s work circumstances might be adapted to
accommodate disability, or, where this is not
possible, the extent to
which the employee’s duties might be adapted; and
(iii)
the availability of any suitable alternative work.’
[22]
The evidence before the arbitrator was that
the employees were re-employed under
discretionary fitness
and placed under a subcontractor for about five
months while alternative positions were explored. Consultations were
held with
the employees, on 11 January 2012 and 27 February 2012, to
discuss their medical incapacity. The documentary evidence, in a form
of emails, indicating that the third respondent sought to explore
alternative positions for the employees was placed before the
arbitrator and was not disputed. The employees were then called to
report for duty at Middleburg Mine where they were subjected
to a
fitness test as required by MHSA, results of which showed that they
were unfit for their positions. Having found no alternative
employment, their employment was terminated.
[23] In his analysis of
evidence and arguments, the arbitrator started by referring to the
requirements contemplated in Schedule
8 Item 11 of the LRA. The
arbitrator further had regard to the guidelines outlined in
IMATU
obo Strydom v Witzenburg and Others
where the Court stated as
follows:
‘
[6]
It is trite that the code of good practice is binding on
commissioners. See
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
(“The
Sidumo
case”).
My reading of item 10 and 11 gives me the impression that an
incapacity enquiry is mainly aimed at assessing whether
the employee
is capable of performing his or her duties, be it in the position he
or she occupied before the enquiry or in any
suitable alternative
position. I am of the view that the conclusion as to the employee’s
capability or otherwise can only
be reached once a proper assessment
of the employee’s condition has been made. Importantly, if the
assessment reveals that
the employee is permanently incapacitated,
the enquiry does not end there, the employer must then establish
whether it cannot adapt
the employee’s work circumstances so as
to accommodate the incapacity, or adapt the employee’s duties,
or provide him
with alternative work if same is available.’
…
[9] I am of the view that
the provisions of item 10 and 11 are inextricably tied and thus
non-compliance therewith would render
a dismissal both procedurally
and substantively unfair. This view is strengthened by the following
remarks made by the former Labour
Appeal Court in
National Union
of Mineworkers and Another v Libanon Gold Mining Co Ltd,
where
the court interpreted the relevant provision of the previous Labour
Relations Act as follows
:
‘
In
my view it would not be fair to dismiss an employee without first
exhausting the possible alternatives. …What is in issue
is the
respondent’s act of terminating the appellant’s
employment. Observance of a fair process is in my view fundamental
to
the question whether its decision to do so was fair. In my view, the
fairness or otherwise of the decision cannot be divorced
from the
process by which it was arrived at.’
[10] In the case of
Samancor Tubatse Ferrochrome v Metal & Engineering Industries
Bargaining Council and Others,
the court, dealing with a
dismissal based on incapacity albeit not one related to illness,
stated as follows:
‘
Manifestly,
the question as to whether a dismissal in the circumstances of the
present dispute is substantively fair depends upon
the facts of the
case. An employer needs to consider the reasons for the incapacity,
the extent of the incapacity, whether it is
permanent or temporary,
and whether any alternatives to dismissal do exist.’
[24]
Having considered the evidence, the arbitrator found that the third
respondent complied with the provisions of Schedule 8.
The arbitrator
further found that the employer took necessary steps to accommodate
the employees. It is apparent from the reading
of the award that the
arbitrator took into consideration all the evidence that was led
before him and applied his mind to the issues
before him. It was for
this reason that he found the employees’ dismissal to have been
procedurally and substantively fair.
[25] The applicant also
challenged Dr Murwamphida’s evidence on the basis that he did
not examine the employees. In the survey
of evidence, the arbitrator
seems to have been alive to the fact that Dr Murwamphida was not part
of the medical examination process.
The commissioner stated that Dr
Murwamphida testified on the rules for minimum standard of fitness
for different job specifications.
[26]
The transcribed record reveals that Dr Murwamphida was called as an
expert witness. His evidence was that according to the
OMP’s
report,
Mr
Phiri did not meet the minimum standard of work on a mine due to the
blindness on one of his eyes
[5]
and further that
Mkhatshwa
was declared permanently unfit as a boilermaker which meant that she
did not meet the inherent physical requirements of
the job.
[6]
Dr Murwamphida further testified that the OMP’s reports are
legal and binding and that they can only be overturned by the
Chief
Inspector of Mines.
[7]
As
aforesaid, he was called as an expert witness thus making the fact
that he did not examine the employees of no consequence.
It is
therefore clear that Dr Murwamphida’s evidence was not hearsay.
[27]
The applicant further alleged that, during closing arguments, the
arbitrator descended into the arena in an attempt to assist
the third
respondent.
There is nothing in the transcript of the
arbitration to show that there was any undue interference in the
arbitration proceedings
and with the testimony of witnesses.
Therefore, there is nothing that becomes apparent from the transcript
which could remotely
convince me that the arbitrator conducted
himself in a manner that could be seen as biased. I can therefore
find no irregularity
insofar as it relates to this ground of review.
[28] It is trite that the
application brought in terms of section 145 of the LRA is not an
appeal. There is a fundamental difference
between appeal and review.
When reviewing the arbitration award, it is not the function of this
Court to decide whether the arbitrator
acted correctly but whether he
or she committed misconduct or gross irregularity or exceeded his or
her powers as provided for
in section 145 of LRA.
[29]
In
casu
,
the applicant has not established any basis upon which the Court
could find that the arbitrator’s award is reviewable. As
such,
it failed to discharge the onus of establishing that the arbitrator
either committed misconduct in relation to his duties
as an
arbitrator, a gross irregularity in the conduct of the arbitration
proceedings, or exceeded his powers.
What
the applicant seeks to do, in this application, is to bring an appeal
against the decision of the arbitrator in a guise of
a review. It is
my view that the decision of the arbitrator is not a decision that a
reasonable decision-maker could not reach.
It is a reasonable
decision that is justified by the evidence that was placed before
him. There is, therefore, no reason for this
Court to interfere with
his award.
[30] With regard to
costs, I am of the opinion that the requirements of law and fairness
dictate that there should be no order as
to costs.
[31] In the
circumstances, I make the following order.
Order
1.
The applicant’s application for review is dismissed.
2.
There is no order as to costs.
_____________
D. Mahosi
Judge of the Labour Court
of South Africa
Appearances:
For
the applicant: Mr F.Marais of AMCU
For
the respondent: Advocate A. Snider
Instructed
by: Webber Wentzel Attorneys
[1]
Act
66 of 1995 as amended.
[2]
Act
29 of 1996 as amended
[3]
[2007]
12 BLLR 1097 (CC).
[4]
CUSA
v Tao Ying Metal Industries and Others
2009
(1) BCLR 1 (CC).
[5]
Transcribed
record page 81 para18 -21.
[6]
Transcribed
record page 83 para1 -8.
[7]
Transcribed
record page 93-94.