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[2019] ZALCJHB 39
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Skhosana v Commission for Conciliation, Mediation and Arbitration and Others (JR 2160/15) [2019] ZALCJHB 39 (5 March 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: JR 2160 / 15
In
the matter between:
MANDLA
SKHOSANA
Applicant
And
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
NATHALIE
WILLEMSE N.O. (AS ARBITRATOR)
Second Respondent
NATIONAL UNION OF
METALWORKERS OF
SOUTH
AFRICA (‘NUMSA’)
Third Respondent
Heard:
30 August 2018
Delivered:
05 March 2019
Summary:
CCMA
arbitration proceedings –
review of proceedings, decisions and awards of arbitrators –
test for review –determination
of gross irregularities and
reasonable outcome
Unfair
labour practice – policy relating to motor vehicle and fuel
allowance – constitutes benefit – benefit regulated
by
terms of policy
Unfair
labour practice – fairness determination – proper context
must be considered – no separate requirement
of procedural
fairness – proper enquiry is whether suspension of benefit is
objectively justified, and not irrational, arbitrary
or mala fide
Unfair
labour practice – employee failing to comply with conditions of
policy – proper objective cause to remove benefit
–
conduct by employer in removing benefit not unfair
Unfair
labour practice – even considering issue of opportunity to be
heard – employee afforded such opportunity but
elected not to
participate
Review
application – no case made out to review award – award by
arbitrator constitutes a reasonable outcome –
review
application consequently dismissed
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
This
application for once concerns the rare occasion where one of most
well-known and established trade unions, National Union of
Metalworkers of South Africa (‘NUMSA”) is taken to task
by one off its own employees. It is certainly a case of the
shoe
being on the other foot. The question now is whether its conduct
passes muster as being fair, considering that a Commission
for
Conciliation, Mediation and Arbitration (‘CCMA”)
arbitrator found in favour of NUMSA against the applicant. However,
and not to be outdone, the applicant brought an application to review
and set aside the arbitration award of the second respondent,
who was
the arbitrator at the CCMA (the first respondent) that dealt with the
matter. The application has been brought by the applicant
in terms of
section 145 of the Labour Relations Act
[1]
(‘the LRA’).
[2]
The dispute at hand, as touched on above,
concerned an unfair labour practice relating to a benefit, which
benefit was founded in
a motor vehicle purchase scheme offered by
NUMSA to its employees. The benefit flowing from the scheme is that
employees receive
a vehicle and fuel allowance so that they can own
and operate their own vehicle. But the scheme had conditions
attached, which
will be elaborated on below. According to NUMSA, the
applicant contravened the scheme conditions, resulting in the benefit
being
suspended, and this gave rise to the unfair labour practice
dispute. As touched on above, this dispute ultimately came before the
second respondent for arbitration. The second respondent was called
upon to decide whether the removal of the benefit constituted
an
unfair labour practice.
[3]
In an award dated 4 September 2015, the
second respondent made a determination to the effect that the
suspension of the benefit
did not constitute an unfair labour
practice, and dismissed the applicant’s unfair labour practice
dispute. It is this determination
by the second respondent that forms
the subject matter of the review application brought by the
applicant.
[4]
The applicant’s review application
was filed on 4 November 2015. Considering that the award was received
by the applicant
on 22 September 2015, the applicant’s review
application was thus brought within the 6 (six) weeks’ time
limit as contemplated
by section 145 (1) of the LRA, and is properly
before this Court for determination. I will now proceed to decide the
review application
by first setting out the background facts.
The
relevant background
[5]
The relevant backgrounds facts in this
matter are straight forward, and are mostly common cause. I
will refer in this judgement
to the third respondent as NUMSA. The
applicant is employed by NUMSA as a local organizer, having commenced
employment with NUMSA
on 1 March 2009.
[6]
During
the course of 2011, it became apparent to NUMSA that some of its
employees were unable to purchase their own vehicles, because
they
would not qualify to do so, applying the ordinary credit regulatory
requirements. To enable employees to purchase their own
vehicles, a
vehicle scheme was created. In terms of this vehicle scheme, NUMSA
agreed with a related organization, being NUMSA
Financial Services
(‘NFS’),
[2]
that it
would purchase vehicles, which would in turn be financed by ABSA, and
these vehicles would then be allocated to qualifying
employees with
the view to those employees then becoming owners of these vehicles
and using the vehicles to execute their ordinary
duties with NUMSA.
[7]
The vehicle scheme had a number of
different scenarios, and conditions attached to its application. I
will however confine myself
to only setting out those provisions
which is relevant to the case at hand. As will be dealt with further
below, the applicant
was allocated what was defined as a ‘new’
vehicle in the vehicle scheme, and the provisions applicable to this
will
next be set out.
[8]
Firstly, the only employees who would
qualify for vehicles under the vehicle scheme would be local
organizers who were in possession
of a valid drivers’ licence.
It was undisputed that the applicant met these requirements. Once it
was determined that an
employee qualified, that employee would then
be allocated a vehicle. The vehicle had to be of a certain
specification. It is the
actual allocation of the vehicle to the
employee that would trigger the implementation of the vehicle
allowance and fuel allowance.
These allowances would then in effect
be attributed towards this vehicle.
[9]
What is important to consider is that the
registered owner of the vehicle would be NFS, who was obliged to
honour the finance obligations
to ABSA. The vehicle was financed over
five years. In the fifth year, the employee could either take
so-called ‘full ownership’
of the vehicle by paying the
final balloon instalment, or the employee could return the vehicle to
NFS at the end of four years.
[10]
In simple terms, the allocation of the
vehicle triggered the vehicle allowance, and in turn the payment of
the vehicle allowance
would trigger the payment of the fuel
allowance. There was no vehicle allowance or fuel allowance without
an allocated vehicle.
[11]
The issue of the allocation of a vehicle
and regulation of the allowances were contained in NUMSA’s
general staff conditions
of employment adopted on 26 April 2011, as
read with an earlier vehicle policy dating back to 1999 (referred to
in this judgment
as ‘the policy’). In terms of the
policy, it is
inter alia
specifically provided that if an employee fails to utilize the
vehicle as a result of problems with the vehicle, the allowances
paid
to the employee will lapse after 30 days, if the vehicle is not
returned to service in that period. There is also a duty placed
on
the employee to report any problems with the vehicle to NUMSA.
[12]
Turning then to the specific facts relating
to the applicant, he was allocated a Chevrolet Cruze vehicle on 29
November 2011 (hereinafter
referred to as ‘the vehicle’).
Along with being allocated the vehicle, the applicant was also
allocated a vehicle allowance
and the accompanying fuel allowance. In
2015, when the dispute in this matter arose, this vehicle allowance
of the applicant stood
at R4 500.00 per month, and the fuel allowance
at R3 000.00 per month.
[13]
In November 2014, the vehicle fell into a
state of disrepair, to the extent that the applicant was unable to
use it. The vehicle
was parked in the applicant’s garage,
whilst he was securing the necessary funds to procure parts to repair
it. In the meantime,
he used other vehicles. The difficulty was
however that he never informed NUMSA of any of this. NUMSA continued
to pay the vehicle
and fuel allowance, despite the applicant not
using the vehicle as required by the policy.
[14]
This entire state of affairs came to the
fore in 2015, when the regional secretary, Jerry Marulane
(‘Marulane’), noticed
that the applicant was driving
another vehicle, and not the vehicle allocated to him. He was
concerned about this, as nothing about
the vehicle or the use of
another vehicle had been reported to him, and this was in breach of
the policy. He then issued the applicant
with an instruction letter
on 12 March 2015, calling upon the applicant to produce the vehicle
for inspection on 16 March 2015.
Marulane stated that he was also
aware that the applicant had recently applied for a loan for vehicle
repairs, and this made him
even more concerned about the vehicle,
which was still the property of the third respondent, and there are
conditions attached
to it in respect of insurance, warranties and a
service plan.
[15]
The applicant failed to produce the vehicle
for inspection on 16 March 2015, and failed to inform Marulane of the
state of the vehicle.
The applicant in effect decided not to comply.
Marulane emphasized that the duty was squarely on the applicant to
report any problems
with the vehicle, and added that a failure to
comply with the policy meant that the payment of the allowances would
be suspended.
[16]
Marulane also explained that an employee
cannot simply use another vehicle. He said that should any employee
wish to utilize another
vehicle, this must be reported to NUMSA, the
vehicle must be inspected and approved, and there were forms that had
to be completed
in this regard. NUMSA also had to satisfy itself
about the ownership of the vehicle and whether it qualifies as a
vehicle that
would attract the payment of allowances under the
policy. Simply put, this alternative vehicle may not qualify for the
payment
of allowances under the policy, and NUMSA needs to be
satisfied of, and approve this.
[17]
On 29 March 2015, and because of the lack
of any effort on the part of the applicant to present the vehicle or
inspection or to
comply with what is required where it comes to the
use of other vehicles, Marulane notified the HR department to suspend
the allowances
of the applicant relating to the vehicle. It was
common cause that the applicant was in fact not using the vehicle at
this time,
in any event. Marulane added that there were two other
employees with the same difficulty as well, and their allowances were
also
suspended. The vehicle and fuel allowances of the applicant were
then suspended as from the end of March 2015.
[18]
The applicant only ultimately presented the
vehicle for inspection on 24 August 2015. He indicated that he was
using it. Marulane
inspected it, and even though it was in an
appalling condition as far as Marulane was concerned, it was running
and useable, and
as such, he notified the HR department to reinstate
the applicant’s vehicle and fuel allowances, which were then
done as
from the end of August 2015.
[19]
The applicant took issue with the
suspension of his vehicle and fuel allowances for the period April to
August 2015. According to
the applicant, there was no provision in
the policy or the vehicle scheme that allowed NUMSA to suspend
payment of the allowances.
He complained further that these
allowances were taken away without NUMSA applying any kind of fair
process. The applicant then,
as stated above, pursued the suspension
of these allowances for the aforementioned period as an unfair labour
practice dispute
relating to benefits, to the CCMA. The applicant
sought consequential relief that he be paid the suspended allowances
for this
period.
[20]
In her award, the second respondent
accepted that the payment of the allowances constituted a benefit as
contemplated by the unfair
labour practice jurisdiction. She however
further held that in order to qualify for the benefit, the employees
had to meet the
conditions associated with the same vehicle scheme,
and the policy.
[21]
The second respondent considered the basis
of the applicant’s unfair labour practice challenge as it was
presented to her.
She identified that his issues were, firstly, a
contention that he was entitled to the allowances as part of his
remuneration,
and there was nothing prohibiting him from using
another vehicle. She found that the applicant however never
challenged the policy
relating to the allowances, and the conditions
attached to it. The second respondent also identified the second part
of the applicant’s
complaint, being that there was a complete
lack of any fair procedure applied when NUMSA decided to suspend the
allowances.
[22]
The second respondent proceeded to consider
all the terms of the applicable policy, and found that the applicant
had the duty to
report to NUMSA should he not be able to use his
allocated vehicle or if there were problems associated with the
vehicle. The second
respondent accepted the contention of the
applicant that there was no policy that prohibited the use of another
vehicle, but she
accepted that there was indeed a policy that
required the applicant to report the use of another vehicle to the
third respondent
and that this had to be approved in line with the
policy.
[23]
The second respondent concluded that the
allowances were paid to the applicant as part of the vehicle scheme,
and as such, he was
obliged to adhere to the conditions attached
thereto. This included that he had to use the vehicle, and report to
NUMSA if there
were problems with the vehicle. This duty also
included that he had to present the vehicle for inspection when
called upon to do
so. The second respondent considered the rationale
for these requirements under the policy, and accepted there was
proper reason
for it.
[24]
According to the second respondent, it was
undisputed that the applicant was indeed instructed to produce the
vehicle for inspection
but did not do so, and that he had full
knowledge of the problems with the vehicle and was using other
vehicles, which he was obliged
to report to NUMSA but never did. She
concluded that the applicant thus did not comply with the conditions
relating to the payment
of the allowances in terms of the policy, and
as such, NUMSA was entitled to suspend the payment of the vehicle and
fuel allowances
to the applicant.
[25]
Finally, and as to the applicant’s
procedural complaints, the second respondent held that the applicant
had the opportunity
to make full disclosure to NUMSA and provide an
explanation to it, when called upon to produce the vehicle for
inspection. The
second respondent concluded that the applicant
declined to avail himself of this opportunity and as such, there was
nothing unfair
in the decision of NUMSA to suspend the payment of the
allowances.
[26]
The second respondent then dismissed the
applicant’s unfair labour practice claim. Dissatisfied
with this outcome, the
applicant then sought to challenge this
determination of the second respondent on review to this Court, being
the current matter
now before me. The question to now answer is
whether the above findings of the second respondent are reviewable,
which I will next
turn to, by first setting out the test for review.
Test
for review
[27]
The
test for review is trite. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[3]
the
Court held that ‘
the
reasonableness standard should now suffuse s 145 of the LRA
’,
and that the threshold test for the reasonableness of an award was:
‘…
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?...’
[4]
.
In
Herholdt
v Nedbank Ltd and Another
[5]
the
Court said:
‘…
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, as well as the weight and
relevance to be attached to the particular facts, are not in
and of
themselves sufficient for an award to be set aside, but are only of
consequence if their effect is to render the outcome
unreasonable.
’
[6]
[28]
What this means is a two stage review
enquiry. Firstly, the review applicant must establish that there
exists a failure or error
on the part of the arbitrator. If this
cannot be shown to exist, that is the end of the matter. Secondly, if
this failure or error
is shown to exist, the review applicant must
then further show that the outcome arrived at by the arbitrator was
unreasonable.
If the outcome arrived at is nonetheless reasonable,
despite the error or failure that is equally the end of the review
application.
In short, in order for the review to succeed, the error
or failure must affect the reasonableness of the outcome to the
extent
of rendering it unreasonable.
[29]
Further,
the reasonableness consideration envisages a determination, based on
all the evidence and issues before the arbitrator,
as to whether the
outcome the arbitrator arrived at can nonetheless be sustained as a
reasonable outcome, even if it may be for
different reasons or on
different grounds.
[7]
This
necessitates a consideration by the review court of the entire record
of the proceedings before the arbitrator, as well as
the issues
raised by the parties before the arbitrator, with the view to
establish whether this material can, or cannot, sustain
the outcome
arrived at by the arbitrator. In the end, it would only be if the
outcome arrived at by the arbitrator cannot be sustained
on any
grounds, based on that material, and the irregularity, failure or
error concerned is the only basis to sustain the outcome
the
arbitrator arrived at, then the review application would succeed.
[8]
[30]
Against the above principles and test, I
will now proceed to consider the applicant’s application to
review and set aside
the arbitration award of the second respondent.
Grounds
of review
[31]
Next,
and in order to properly decide a review application, it is also
important to identify the grounds of review upon which the
application is founded. These grounds must be properly set out and
identified in the founding affidavit. As was said
in
Northam
Platinum Ltd v Fganyago NO and Others
[9]
:
‘…
The
basic principle is that a litigant is required to set out all the
material facts on which he or she relies in challenging the
reasonableness or otherwise of the commissioner's award in his or her
founding affidavit
’
[32]
However,
and in the case of review applications, these grounds of review may
be supplemented, after the filing of the record, by
way of a
supplementary affidavit.
[10]
The applicant indeed filed a supplementary affidavit, but this
supplementary affidavit, as I will discuss below, did little to
supplement the actual grounds of review raised by the applicant.
[33]
From the founding affidavit and the
supplementary affidavit, it appears that the main thrust of the
applicant’s case is aimed
at the issue of what he calls the
lack of procedural fairness. There are multiple individual grounds of
review raised, but all
of these grounds, in a nutshell, constitutes a
contention by the applicant that the second respondent failed to
properly consider
the evidence and the relevant legal principles
where it came to the procedural fairness of the matter, and in
particular, the failure
to have afforded the applicant an opportunity
to state his case and complying with
audi
alteram partem
, prior to NUMSA deciding
to suspend his allowances. The supplementary affidavit also merely
embellishes this basic ground of review
by way of making specific
references to the transcript of the arbitration.
[34]
Other than a vague and general challenge
that the second respondent failed to consider pertinent evidence and
provisions of law,
there is no proper review grounds made out where
it comes to the substantive findings of the second respondent that
the policy
existed, what the policy provided for in the form of
conditions relating to the payment of the allowances, and that the
policy
contemplated the suspension of the allowances in appropriate
circumstances if these conditions are not met. It must follow that
the findings of the second respondent to the effect that the
applicant did not comply with the conditions as stipulated by the
policy and that as a result his allowances were suspended, stand as
unchallenged.
Analysis
[35]
First
things first. The allowances paid to the applicant by NUMSA as part
of the vehicle scheme undoubtedly constituted a benefit
as
contemplated by the unfair labour practice jurisdiction under the
LRA. As held in
Apollo
Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation
and
Arbitration
and Others
[11]
:
‘
In
my view, the better approach would be to interpret the term “
benefit”
to include a right or entitlement to which the employee is entitled
(ex contractu or ex lege including rights judicially
created) as well
as an advantage or privilege which has been offered or granted to an
employee in terms of a policy or practice
subject to the employer’s
discretion. In my judgment “benefit” in s 186(2)
(a)
of the Act means existing advantages or privileges to which an
employee is entitled as a right or granted in terms of a policy
or
practice subject to the employer’s
discretion.
’
[36]
As
stated, the applicant’s review challenge in this case is what
can be described as a procedural one. It is all about NUMSA
failing
to comply with
audi
alteram partem
prior
to deciding to suspend the allowances of the applicant. This being
said, I have difficulty with the applicant’s approach
on
review. In my view, in the case of an unfair labour practice dispute
relating to benefits, it is often difficult to draw a clear
distinction between what is the substantive justification for the
conduct of an employer, and what can be seen to be procedurally
fair
in the course of such conduct. In the end, it is in my view a single
holistic enquiry, with the view to deciding whether the
decision
taken by the employer was fair. It is not appropriate to separate it
into substantive and procedural components. There
is no distinct and
separate requirement of procedural fairness, in unfair labour
practice disputes relating to benefits, as would
be, for example, the
case where it comes to dismissals.
[12]
The unfair labour practice doctrine is intended to protect against
irrational,
mala
fide
and arbitrary decision making by an employer, and any decision by an
employer must be evaluated on that basis, and not the basis
of the
dual fairness requirement of substantive fairness on the one hand,
and procedural fairness on the other. This is evident
from the
following
dictum
of Skweyiya J in
Chirwa
v Transnet Ltd and Others
[13]
:
‘
T
he
LRA includes the principles of natural justice. The dual fairness
requirement is one example; a
dismissal needs to be substantively and procedurally fair. By doing
so, the LRA guarantees that an
employee will be protected by the
rules of natural justice and that the procedural fairness
requirements will satisfy the audi
alteram partem
principle
and the rule against bias. If the process does not, the employee will
be able to challenge her or his dismissal, and will
be able to do so
under the provisions and structures of the LRA.
Similarly,
an employee is protected from arbitrary and irrational decisions,
through substantive
fairness
requirements and
a
right not to be subjected to unfair labour practices
.’
(emphasis added)
[37]
Accordingly,
it is not appropriate for the applicant to attack the decision by
NUMSA to suspend his allowances, under the unfair
labour practice
jurisdiction, by in essence only relying on a failure of
audi
alteram partem
.
I accept that in certain cases, the failure of
audi
alteram partem
can contribute to a finding of irrationality or arbitrariness.
[14]
But in the end, it is always about whether the decision is
substantively justified and fair, holistically considered, and not
about
audi
alteram partem
as a distinct and separate component of fairness.
[38]
In
Solidarity
obo Oelofse v Armscor (SOC) Ltd and Others
[15]
the Court dealt with the decision by an employer not to pay an
employee a performance bonus in terms of a remuneration policy.
The
Court held as follows:
[16]
‘
With
the performance bonus
in casu
thus being a benefit, and the discretion to be exercised by the first
respondent in awarding or not awarding such a benefit being
subject
to scrutiny based on what would be considered to be fair, the next
most obvious question to answer is under what circumstances
the
exercise of the discretion could indeed be seen to be unfair.
The Court in
National Coalition for Gay
and Lesbian Equality and Others v Minister of Home Affairs and
Others
, in dealing with the challenge
of discretions in general, decided that a discretion would be open to
successful challenge if the
discretion was not judicially exercised
and in particular:
‘…
had
been influenced by wrong principles or a misdirection on the facts,
or that it had reached a decision which in the result could
not
reasonably have been made by a court properly directing itself to all
the relevant facts and principles’
In
Apollo Tyres
the Court applied these general principles applicable to the
challenge of the exercise of discretion on the basis of being unfair,
as follows:
‘…
unfairness
implies a failure to meet an objective standard and may be taken to
include arbitrary, capricious or inconsistent conduct,
whether
negligent or intended.
’
The
Court in
Oelofse
then applied these same considerations to the decision made or
discretion exercised by an employer in the context of the benefits
provision of the unfair labour practice.
[17]
[39]
It
follows that any determination about whether the decision by NUMSA to
suspend the applicant’s allowances was unfair, entails
considering whether the decision is objectively justified, accounts
for all the relevant facts, and is not irrational, arbitrary,
capricious or
mala
fide
.
[18]
What I will do, and in order to do the applicant justice even though
he did not actually make out such a case on review, is to
consider
whether NUMSA’s decision passes muster based on these
principles, and not just based on the singular alleged failure
of
audi
alteram partem
,
which may or may not be part of this holistic enquiry.
[40]
The starting point in deciding the issue as
aforesaid is considering objective justification. It is clear from
the evidence that
the benefit, in the form of the allowances
in
casu
, indeed had specific conditions
attached to the payment of it. In short, these conditions were that
the applicant was required
to use the vehicle allocated to him, on a
day to day basis, and if he did not do so, the payment of the
allowances could be suspended.
If he wanted to use another vehicle,
this had to be disclosed to, and then approved by, NUMSA. It was
undisputed that the applicant
did not comply with these conditions.
In addition, the applicable rules placed the onus squarely on the
applicant to report to
NUMSA if there was any problem with the
vehicle, which the applicant also never did. It was undisputed that
there was a proper
operational rationale for all these provisions.
[41]
It is clear from her award that the second
respondent was alive to all of these provisions in the policy and the
vehicle scheme,
and this played a central role in her arriving at the
conclusion that she did. In this respect, she cannot be faulted. As
discussed
above, it was essential for the second respondent to have
enquired into, and then determine, the issue of objective
justification.
This she correctly did.
[42]
In then deciding to suspend payment of the
allowances to the applicant, NUMSA based this squarely on the
provisions of the vehicle
scheme and the policy, which in effect
provides that if the vehicle is not returned to service in 30 days,
the allowances could
be suspended. This clearly, in my view,
constitutes a proper substantive basis justifying the making of such
a decision.
In casu
,
the vehicle was unusable, had not returned to service (so to speak)
when it was decided to suspend the allowances, and it was
not
presented for inspection when demanded. If the applicant was using
the vehicle allocated to him, and had not parked it in his
garage
whilst using other vehicles, the problem would never have arisen.
This was said in so many words by Marulane. There can
be no doubt
that the decision by NUMSA was objectively justified and relevant to
the purpose behind the decision.
[43]
Yet again, the second respondent properly
appreciated and considered the above circumstances. She accepted that
there was proper
cause for the policy to be applied and the allowance
to be suspended. On the facts, this determination is unassailable.
[44]
The
judgment in
City
of Cape Town v SA Local Government Bargaining Council and Others
[19]
contains many similarities to the matter now before me. In that case,
the employer also had a fuel allowance scheme, and one of
the
qualifying requirements for receiving the allowance was that the
employee had to submit daily log sheets.
[20]
The employee then failed to submit the log sheets for several months,
and his allowance was stopped, as a result of which the employee
pursued an unfair labour practice dispute relating to benefits. The
Court concluded as follows:
[21]
‘
When
Esau stopped submitting log sheets to the city, he stopped being
entitled to the
benefit.
It was not
unfair of the city to stop payments in those circumstances.’
Also
applicable, and as said in
Oelofse
:
[22]
‘…
it
would not be unfair if the existence of an objective fact forms the
basis of the exercise of the discretion, provided of course
it is
relevant to the purpose for which the discretion is exercised.
’
[45]
Next, the applicant’s contention in
the arbitration that there was nothing in the policy that
substantiated the suspension
of the allowances was found by the
second respondent to be without merit. I am compelled to agree with
her. Holistically considered,
the allowances are inextricably linked
to the allocation of a vehicle in terms of the vehicle scheme. The
allowances are not some
or other loose standing or separate benefit.
It follows that the employee must use the vehicle allocated to him or
her, and is
paid the allowances as a result. By not using the
vehicle, the allowances must cease along with it. Once the vehicle is
used again,
the allowances resume. The use of the vehicle is, in
short, the
quid pro quo
for the payment of the allowances. After some reluctance, the
applicant ultimately conceded under cross examination that in order
to get the benefits in the form of allowances, he must meet the
conditions attached to those benefits. It must also be considered
that when the conditions were then met in August 2015, when the
vehicle was returned to service, the payment of the allowances
to the
applicant resumed.
[46]
But
even if NUMSA erred in the manner in which it interpreted and applied
the policy, and the second respondent, in accepting that
case
similarly erred, that still does not render the decision to suspend
the allowances to be arbitrary or irrational or
mala
fide
.
[23]
The fact is that on the evidence, this exact same approach was
applied across the board so to speak, to all employees. There were
even two others employees who similarly had their allowances
suspended along with the applicant, and for the same cause.
[47]
A further aspect of the applicant’s
case at arbitration was that there was nothing standing in his way of
using other vehicles
for union affairs and still receiving the
allowances. The second respondent, as said, dealt with this. She
accepted there was nothing
in the policy prohibiting the use of
another vehicle, but held that this was not the issue. The issue was
that the applicant needed
to report the use of another vehicle and
NUMSA had to approve it. Considering the evidence, this finding is
not only reasonable,
but actually correct. What is clear is that if
an employee wants to use another vehicle, this must first be reported
to, and then
approved by, NUMSA. In the absence of the applicant
doing this, there is simply no basis upon which he could insist on
the retention
of the allowances in terms of the policy, whilst using
another vehicle.
[48]
The applicant sought to rely on a provision
in the policy that if a vehicle cannot be fixed in 30 days,
assistance would be given
to the employee to obtain an alternative
vehicle. This reliance is however misplaced. As specifically
explained by Marulane, this
only applied to a vehicle that had been
written off, and even then, there was an obligation to immediately
notify NUMSA of this.
As said above, the applicant’s vehicle
was not written off, and he never reported problems to NUMSA. I am
thus satisfied
that this provision in the policy equally does not
assist the applicant.
[49]
Therefore, and substantively, NUMSA had
proper objective cause and reasons to suspend the payment of the
allowances to the applicant,
which was conduct contemplated by the
policy. There is nothing unfair in the decision taken to do so, and
any discretion that may
have been exercised by NUMSA in this regard.
[50]
As to the issue of
audi
alteram partem
, it is indeed true that
the applicant was not given specific prior notification of the
intention by NUMSA to suspend his allowances,
followed by some sort
of hearing in which he was given an opportunity to make
representations about this. However, and as I have
said above, this
does not equate to unfairness per se. The real question is whether
the absence of this would be of sufficient
magnitude to render the
decision taken to suspend the allowances to be irrational or
arbitrary, or constitute a failure to account
to for all the relevant
facts. The answer is simply that it is not so, for the reasons I have
already provided. Further, there
is simply no legal prescription of
the right to a hearing when exercising a discretion with regard to a
benefit under the unfair
labour practice jurisdiction. All
considered, what the unfair labour practice jurisdiction seeks to
avoid is unilateral arbitrary
conduct by the employer.
[51]
There is nothing arbitrary in what NUMSA
did. And further, its decision is far from simply being unilateral.
When Marulane became
concerned about the applicant not using his
vehicle, he gave the applicant notice to produce the vehicle for
inspection. It must
have been patently apparent to the applicant why
this instruction was given to him, which he in any event never
disputed. When
given this notification, he had the opportunity to
engage with NUMSA about the vehicle. Only when he did not respond, at
all, or
comply with the instruction, was the allowances suspended,
[52]
In
casu
,
the second respondent properly and correctly appreciated that the
applicant had the opportunity to engage NUMSA about the vehicle,
and
with it, the allowances. She accepted that this opportunity came when
the applicant was instructed to produce the vehicle for
inspection,
but he then, without any reason, never conveyed any problems with
regard to the vehicle to NUMSA, nor did he present
the vehicle for
inspection. He thus spurned the opportunity he had to either convince
NUMSA that he complied with the policy, or
that NUMSA should consider
an explanation as to why the allowances should not be suspended, and
thus cannot be seem to complain
about a lack of an opportunity to
make representations.
[24]
The
reasoning of the second respondent is sound, and certainly
reasonable, and as such unassailable on review. I must confess that
I
believe that the applicant deliberately did not engage, as he knew he
stood to forfeit the allowances if the vehicle was found
to be
unserviceable.
[53]
One
also cannot ignore, as the second respondent once again correctly
appreciated, that there was a duty on the applicant to keep
NUMSA
appraised of any problems with the vehicle. If he simply did that,
there could have been a discussion about it, and perhaps
some plan
could be made or an indulgence afforded to the applicant. If there
was any unilateral action in this case, it was perpetrated
by the
applicant, who decided not to comply with the duty that squarely
rested on him to properly report to NUMSA about the vehicle.
In such
circumstances, he can only have himself to blame if NUMSA then
decided to suspend the payment of the allowances. After
all, the
concept of fairness is a two way street, considering the following
dictum
in
Oelofse
:
[25]
‘…
The
concept of fairness is not one sided, but a two-way street, and must
involve considerations of fairness to both the employer
and the
employee. …
’
[54]
Insofar
as the second respondent’s decision in this matter may be
founded on her preferring the testimony of Marulane for
NUMSA, there
is no room for me to interfere with that approach. In any event, this
Court should be loathe to interfere with credibility
findings by
arbitrators.
[26]
What I can
also say is after having read the transcript in this matter, the
testimony of the applicant was entirely unsatisfactory.
He was prone
to giving long speeches which had nothing to do with the matter at
hand. Under cross examination, he was argumentative
and often would
not answer direct questions put to him. He in fact had to be taken to
task by the second respondent in the course
of cross examination, for
disrespectful conduct. He also declined to make concessions where
this was certainly called for. Overall,
he was an argumentative and
obstructive witness, who was simply not credible.
[55]
In
the end, the case of the applicant was not much more than a
disagreement with NUMSA about the reason and manner in which it chose
to apply the policy, and then decided to suspend the applicant’s
allowances. But a mere disagreement falls far short of establishing
an unfair labour practice. As held in
Oelofse
:
[27]
‘
Whilst
it may be so that applicants disagreed with the manner in which the
first respondent chose to exercise its discretion, such
disagreement
simply cannot substantiate a case for interfering with the
discretion. It takes a lot more than disagreement to upset
the
exercise of a discretion. In
Eskom
Holdings SOC Ltd v National Union of Mineworkers obo Kyaya and Others
the Court held, in comparable circumstances, when dealing with an
unfair labour practice dispute:
‘
It
is difficult to understand, in the above context, now it can be said
that the applicant acted unfairly towards the individual
respondents. The fact that the individual respondents may
disagree with the grading attached to their positions because of
the
nature of the work and the duties they fulfilled simply does not
matter. There was no evidence by the individual respondents
or
even any case that the grading of T10 attached to their positons was
improperly arrived at, wrong, or for example in breach
of the
applicant’s policies. …’
[56]
I therefore conclude that the applicant has
failed to make out a proper case to set aside the determination by
the second respondent
that NUMSA did not commit an unfair labour
practice in suspending the applicant’s vehicle and fuel
allowances. The
second respondent in my view appreciated the
real issues she needed to decide, properly evaluated the evidence,
and came to a conclusion
that not only resorted well within the bands
of a reasonable outcome, but was actually correct. The award of the
second respondent
must thus be upheld on review.
Conclusion
[57]
Therefore, and based on all the reasons set
out above, it is my view that the applicant’s review
application must fail. I
am not convinced that the second respondent
even erred, let alone came to a conclusion that was unreasonable as
contemplated by
the review test summarized above. The applicant
simply failed to make out a proper case to justify interference with
the decision
by NUMSA to suspend payment of his allowances, on the
basis of this decision being unfair. The finding by the second
respondent
that NUMSA did not commit any unfair labour practice in
deciding to suspend payment of the applicant’s vehicle and fuel
allowances
is a determination that a reasonable decision maker could
come to, based on the facts in this matter and the applicable legal
principles.
It is not open to be interfered with on review, and the
applicant’s review application must be dismissed.
Costs
[58]
This
then only leaves the issue of costs. In terms of the provisions of
section 162(1) and (2) of the LRA, I have a wide discretion
where it
comes to the issue of costs. Even though
the
applicant was unsuccessful, I do not intend to burden him with a
costs order. There still exists an employment relationship
between
the parties, which would only be further prejudiced by a costs order.
The third respondent also did not press the issue
of costs when the
matter was argued before me. I am also mindful of the
dictum
of the Constitutional Court in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[28]
where
it comes to the issue of costs in employment disputes.
I
accordingly exercise my discretion as to costs in this matter by
making no order as to costs.
[59]
In the premises, I make the following
order:
Order
1.
The applicant’s review application is
dismissed;
2.
There is no order as to costs.
_____________________
S. Snyman
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr N Mkhize of Mkhize Attorneys
For
the Third Respondent:
Mr V Shezi – NUMSA Official
[1]
Act
66 of 1995, as amended.
[2]
NFS was owned by NUMSA Investment Company.
[3]
(2007)
28 ILJ 2405 (CC).
[4]
Id
at para 110. See also
CUSA
v Tao Ying Metal Industries and Others
(2008)
29 ILJ 2461 (CC)
at
para 134;
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC) at para 96.
[5]
(2013)
34
ILJ
2795 (SCA)
at
para 25.
[6]
See
also
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
(2014)
35 ILJ 943 (LAC) at para 14;
Monare
v SA Tourism and Others
(2016) 37 ILJ 394 (LAC) at para 59;
Quest
Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp
Fulfilment Services (Pty) Ltd) v Legobate
(2015) 36 ILJ 968 (LAC) at paras 15 – 17;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2015) 36 ILJ 2038 (LAC) at para 16
[7]
Fidelity
Cash Management
(
supra
)
at para 102.
[8]
See
Campbell
Scientific Africa (Pty) Ltd v Simmers and Others
(2016)
37 ILJ 116 (LAC) at para 32;
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others
(2015)
36 ILJ 1453 (LAC) at para 12.
[9]
(2010)
31 ILJ 713 (LC) at para 27.
[10]
See Rule 7A(8) of the Labour Court Rules;
Brodie
v Commission for Conciliation, Mediation and Arbitration and Others
(2013)
34 ILJ 608 (LC) at para 33;
Sonqoba
Security Services MP (Pty) Ltd v Motor Transport Workers Union
(2011)
32 ILJ 730 (LC) at para 9;
De
Beer v Minister of Safety and Security and Another
(2011)
32 ILJ 2506 (LC) at para 27.
[11]
(2013)
34
ILJ
1120 (LAC)
at para 50. See also
Mawethu
Civils (Pty) Ltd and Another v National Union of Mineworkers and
Others
(2016) 37 ILJ 1851 (LAC) at para 20.
[12]
See section 188(1) of the LRA.
[13]
(2008)
29 ILJ 73 (CC) at para 42.
[14]
See for example
Johannesburg
Water (SOC) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2018)
39 ILJ 845 (LC) at paras 14 and 19, where the court held that the
decision of the employer relating to the payment of allowances
was
‘
patently
arbitrary, capricious and inconsistent with the remuneration
policy
’,
with the Court accepting that one of the factors leading to
the
conclusion being that the employees was presented with a fait
accompli. In the end however, the Court in
Johannesburg
Water
still considered the actual provisions and conditions of the
remuneration policy, as a whole.
[15]
(JR2004/15)
[2018] ZALCJHB 87 (21 February 2018).
[16]
Id at paras 30 – 31.
[17]
See para 33 of the judgment.
[18]
See also
Ncane
v Lyster NO and Others
(2017)
38 ILJ 907 (LAC) at para 25.
[19]
(2014)
35 ILJ 163 (LC).
[20]
See paras 5 – 6 of the judgment.
[21]
Id at para 27.
[22]
(
supra
)
at para 35.
[23]
Compare
Oelofse
(
supra
)
at para 34.
[24]
Compare
Chemical
Energy Paper Printing Wood and Allied Workers Union and Others v
Metrofile
(Pty)
Ltd
(2004) 25 ILJ 231 (LAC) at para 55, where the Court held, in the
context of disciplinary proceedings, that an
employee
who refuses to attend the enquiry must be prepared to accept the
consequences thereof, one of which is that the enquiry
will proceed
in his absence and adverse findings may be made.
[25]
(
supra
)
at para 36
[26]
See
Standerton
Mills (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2012)
33 ILJ 485 (LC) at para 18;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2013)
34 ILJ 945 (LC) at para 31.
[27]
Id at para 39.
[28]
(2018)
39 ILJ 523 (CC) at para 25.