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[2019] ZALCJHB 64
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Netswera v Commission for Conciliation, Mediation and Arbitration and Others (JR1657/14) [2019] ZALCJHB 64 (2 March 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR1657/14
In
the matter between:
GERSON
NETSWERA
Applicant
and
COMMISSION
FOR CONCILIATION,
First
Respondent
MEDIATION
AND
ARBITRATION
COMMISSIONER
FRANCIOS
VAN
DER MERWE
N.O
.
Second Respondent
SOUTH
AFRICAN CONTAINER
DEPOTS
(PTY)
LTD
Third Respondent
Heard
:
14
March 2019
Delivered
:
02 April 2019
Summary:
Review of arbitration award
JUDGMENT
PHEHANE
,
AJ
Introduction
[1]
The
Applicant seeks to review and set aside an arbitration award by the
Second Respondent dated 30 June 2014 which found his dismissal
to be
both procedurally and substantively fair. The review application is
brought in terms of section 145(2) of the Labour Relations
Act
[1]
(LRA).
[2]
The Third Respondent opposes the
application on the basis that the Applicant has failed to advance any
valid ground for the review
of the arbitration award and as such, the
arbitration award is reasonable. The Third Respondent accordingly
seeks a dismissal of
the application for review.
Background
[3]
The Applicant was employed as a forklift
driver by the Third Respondent. The Applicant was charged for
misconduct. The allegations
of misconduct that were levelled against
the Applicant were the following:
‘
i.
Assault with an intent to cause grievous bodily harm/pain;
ii. Fighting –
physical attack to a fellow employee;
iii.
Insolence and Rebelliousness towards superior – gross
misconduct.’
[4]
The Applicant was dismissed on 8 June 2012
pursuant to a disciplinary hearing.
[5]
A dispute was subsequently referred to the
Commission for Conciliation Mediation and Arbitration (CCMA). The
arbitration award that
was issued by the CCMA was reviewed and set
aside by this Court. The matter was remitted to the CCMA to be heard
de novo
.
[6]
The Second Respondent presided over the
de
novo
hearing. It is his arbitration
award that the Applicant seeks to review.
Ground
of review
[7]
The Applicant raises a single ground of review in his founding
affidavit,
which is the following:
’
21.
The arbitrator committed a gross irregularity in the conduct of the
arbitration proceedings in that he failed to determine whether
the
company applied its policy in respect of discipline consistently
between Rasiruthe and myself in that we were involved in a
fight in
the office of Metherell. The Arbitrator’s failure to determine
the consistent application amongst the Company’s
employees
prejudiced me in that I was unfairly treated and the Company did not
lead evidence to justify the unfair treatment. Therefore,
the
Arbitrator’s award is unreasonable based on the totality of the
evidence presented during the arbitration proceedings’.
[8]
It
is trite that a litigant stands or falls by his founding
affidavit
[2]
. In
Naidoo
v National Bargaining Council for the Chemical Industry and Others
[3]
the
court held as follows at paragraphs 13 and 19:
“
It
is incumbent upon the applicant in his founding or supplementary
affidavit to establish with reference to the arbitrator’s
award
and the record (and the material placed before the arbitrator), the
grounds upon which the applicant relies in seeking to
have the award
reviewed and set aside … In the heads of argument filed by the
applicant’s counsel, the applicant attempts
to make out a case
justifying the review and setting aside of the award… Heads of
argument, however, do not constitute pleadings
and the court is left
with only the applicant’s founding and replying affidavits to
determine the reviewability or otherwise
of the … award.”
[9]
Despite
reserving his right to supplement his founding affidavit upon receipt
of the record
[4]
, no
supplementary affidavit
[5]
was
delivered by the Applicant to augment his ground of review subsequent
to the delivery of the transcribed record and two reconstructions
of
the record dated 9 December 2014 and 25 January 2018, which were
handed up by the parties during oral argument.
[10]
Paragraph 12 of the Applicant’s
replying affidavit contains an allegation that he was charged on a
supposition that the employer
singled him out because he is a shop
steward. This allegation is raised for the first time in the replying
affidavit.
[11]
In the premises, this Court only has the
founding affidavit to determine whether a case is made out for the
review and setting aside
of the arbitration award.
[12]
The Applicant’s representative
requested the Court to give a wide interpretation to paragraph 21 of
the founding affidavit
and to consider the founding affidavit as a
whole.
[13]
His submission in essence was that the
arbitrator ought to have found that there was a fight between two
parties, being the Applicant
and Mr Raseruthe; that the ground of
review based on inconsistency refers to only one party having been
disciplined for misconduct,
whereas both parties committed an act of
misconduct in fighting with each other.
[14]
In my view, it is not the role of this
Court to sift through founding papers,
in
casu
to find grounds of review under
section 145(2) of the Labour Relations Act. It is incumbent on the
Applicant to set out the grounds
of review on which he relies and to
set out a factual basis therefore.
[15]
The submissions by the representative for
the Respondent is that firstly, there are two distinct incidents; the
first took place
outside at the forklift; the second, inside the
office of Mr Metherell. Secondly, that there is a single and
narrow ground
of review contained in paragraph 21 of the founding
affidavit. Thirdly, the Applicant’s single ground of review in
paragraph
21 is confined to the arbitrator’s finding as to what
transpired in the office of Mr Metherell.
Legal
Principles:
[16]
The
legal principles in review applications have been emphasized in the
decisions of this Court and higher Courts
[6]
.
[17]
The
onus is on an applicant to deal fully with the factual and legal
grounds upon which the applicant relies to review and set aside
the
arbitration award
[7]
, with
reference to the award and evidence. It is glaringly evident that the
Applicant in
casu
has
failed to do so on the papers before this Court.
[18]
The Applicant’s version before the
Second Respondent is that he was assaulted by his superior, Mr
Raseruthe outside and on
the forklift that he was driving. He
contended that Mr Rasesuthe smacked him in his face outside, at the
forklift. The Applicant
immediately went to report the assault to his
superior, Mr Metherell, who was in his office at the time. Mr
Metherell called Mr
Raseruthe to his office. While seated, Mr
Metherell asked Mr Raseruthe if he assaulted the Applicant. He denied
doing so.
[19]
An argument ensued and Mr Raseruthe hit the
Applicant with a fist on his shoulder. The Applicant defended himself
with fists. Mr
Metherell arose from his seat to separate them. The
Applicant pushed Mr Metherell aside, causing papers to fall off his
desk. Mr
Raseruthe threw a dustbin which hit Mr Metherell. The
Applicant left Mr Metherell’s office. When he was called by Mr
Metherell,
he did not respond nor turn back, as he felt pain and
unprotected. He went to report the matter to a senior shop steward.
He returned
to Mr Metherell’s office with the senior
shop-steward, was suspended from work and was ultimately dismissed.
[20]
The Third Respondent’s version presented to the Second
Respondent was evidenced by
the testimony of Messrs Metherell and
Raseruthe. Mr Raseruthe’s evidence was that he was using the
forklift, had parked it
outside his office when the Applicant climbed
into it. A scuffle ensued between the two as Mr Raseruthe tried to
remove the key
from the ignition. The Applicant pushed his hand in an
upward movement which caused Mr Raseruthe’s hand to touch the
Applicant’s
face. Mr Raseruthe was called to Mr Metherell’s
office.
[21]
Inside Mr Metherell’s office, while seated, Mr Metherell asked
him if he had assaulted
the Applicant. The Applicant started raining
fists on him. Mr Raseruthe did not return the fists, but protected
himself as he was
being hit from behind. Mr Metherell arose from his
seat to separate them. The Applicant pushed Mr Metherell causing
papers to fall
off his desk. The Applicant continued to hit Mr
Raseruthe with fists. Mr Metherell tried to stop the Applicant for
the second time,
but the Applicant continued hitting Mr Raseruthe.
The Applicant then left the office, was called back by Mr Metherell,
but waved
his hand and he did not return. Mr Metherell asked Mr
Raseruthe if he was fine, to which he responded that he was not fine
as he
had sustained injuries on his head, neck and hands. Mr
Raseruthe left, went to the chemist as he was in pain. The following
day,
he went to the doctor and went to open up a case of assault
against the Applicant at a police station.
[22]
Mr
Metherell’s evidence before the Second Respondent corroborates
that of Mr Raseruthe with respect to what transpired in
his office
[8]
i.e. that the Applicant assaulted Mr Raseruthe unprovoked
[9]
.
[23]
The
evidence before the Second Respondent was that Mr Metherell requested
the Applicant, in the presence of the shop steward, to
write a
statement regarding the alleged assault on him by Mr Raseruthe at the
forklift
[10]
. The Applicant
refused to provide such statement. As a consequence, Mr Raseruthe was
not charged for misconduct.
[24]
The Second
Respondent was to determine who started the assault and whether there
was provocation.
[11]
In so
doing, I find that he considered the evidence before him in
totality
[12]
when he found
that the Applicant assaulted Mr Raseruthe in Mr Metherell’s
office and that he was not provoked. The evidence
before him was that
Mr Raseruthe did not assault the Applicant in Mr Metherell’s
office.
[25]
In respect
to the determination of whether there was any inconsistency in the
application of discipline, the Second Respondent found
that the
Applicant’s refusal and failure to produce a statement on the
alleged assault outside and at the forklift, was the
reason why Mr
Raseruthe was not charged for misconduct. The totality of evidence
placed before him was that Raseruthe’s hand
touched the face of
the Applicant during the scuffle to retrieve the keys of the
forklift. This does not, in my view, constitute
assault or a beating
as alleged by the Applicant.
[13]
The evidence before the Second Respondent was that the Applicant
assaulted Mr Raseruthe in the office of Mr Metherell such that
he
sustained injuries and sought medical attention.
[26]
Although not crafted as a ground of review, but an averment mentioned
in paragraph 16 of
the founding affidavit, I find that the Second
Respondent dealt with the complaint that the Applicant was not
afforded an opportunity
to furnish the chairperson of the
disciplinary hearing with mitigating factors. On the totality of
evidence before him, being the
evidence of Mr Kruger who chaired the
disciplinary hearing as well as the documentary evidence before him,
the Second Respondent
considered and found, correctly so, that the
mitigating factors were taken into consideration.
[27]
In view of
the aforegoing, I find that the single ground of review raised by the
Applicant lacks merit. I find no basis to interfere
with the Second
Respondent’s arbitration award
[14]
.
[28]
In the premises, I make the following order:
Order
1.
The application for review is dismissed.
2. There
is no order as to costs.
_______________________
MTM
Phehane
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant:
A.P. Landman
Instructed
by:
SASLAW Pro
Bono Office
For
the Respondent: D. Short from
Fairbridges Attorneys
[1]
Act
66 of 1995, as amended.
[2]
Shakot
Investments (Pty) Ltd v Town Council of the Borough of Stanger
1976
(2) SA 701 (D)
[3]
[2012]
9 BLLR 915
(LC
)
at para 13 and 19. See also:
Moroka
v National Bargaining Council for the Chemical Industry & others
[2010]
JOL
26406
(LC) and the unreported Labour Appeal Case mentioned in
paragraph 22 of:
Comtech
(Pty) Ltd v Commissioner Shaun Molony N. O. & others
(case
DA 12/05 dated 21 December 2007).
[4]
Pleadings
bundle, founding affidavit, para 22, p 14.
[5]
As
contemplated in Rule 7A(8)(a) of the Rules of this Court.
[6]
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[2007]
12 BLLR 1097
(CC
);
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration & others
(2014)
35 ILJ 943 (LAC);
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as
Amicus
Curiae
)
(2013)
34 ILJ 2795 (SCA).
[7]
Rule
7A(2)(c).
[8]
Pleadings
bundle, arbitration award, para 10, pp 18 – 19.
[9]
Reconstructed
record dated 25 January 2018, p 2, lines 6 to 10.
[10]
Reconstructed
record dated 25 January 2018, p 2, lines 18 to 24.
[11]
Pleadings
bundle, arbitration award, para 9, p 18.
[12]
Pleadings
bundle, arbitration award, paras 14 to 16, pp 21 to 22.
[13]
Transcribed
record, p 167, lines 1 to 3.
[14]
Edcon
Ltd v Pillemer N.O. and others
[2009]
ILJ
2642 SCA
.