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[2019] ZALCJHB 93
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National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR1143/12) [2019] ZALCJHB 93 (9 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
No: JR 1143/12
In
the matter between:
NATIONAL
UNION OF MINEWORKERS
First
Applicant
BEN
RAMOLEBO
Second Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
COMMISSIONER
C. MOKABANE
Second Respondent
GOEDGEVONDEN
COLLIERY XSTRATA COAL Third
Respondent
Heard:
11 January 2019
Delivered:
09 May 2019
Summary:
Review application –
circumstantial evidence-such
evidence persuasive if inference sought to be drawn from evidence is
consistent with all the proven
facts and it is most plausible
inference
JUDGMENT
MTHALANE,
AJ
Introduction
[1]
The applicants approached this Court seeking an order that the award
issued by the second
respondent (the Commissioner), under the
auspices of the first respondent, the Commission for Conciliation,
Mediation and Arbitration
(the CCMA) and under case number MP8648-11,
be reviewed and set aside and that the matter be remitted to the CCMA
for a hearing
de novo
before a commissioner other than the
second respondent.
[2]
This Court
has been approached to determine whether the conclusion of the
Commissioner is based on the facts and did he reach a
reasonable
decision. I do not intend to set out the legal principles applicable
to review applications. The Constitutional Court,
[1]
Supreme Court of Appeal,
[2]
the
Labour Appeal Court
[3]
and the
Labour Court
[4]
and numerous
other judgments have now thoroughly grappled with the review test. I
shall deal with the principles emanating
from the aforesaid cases in
greater detail below.
Background
[3]
The second applicant, Ramalebo, was employed by the third respondent,
Goedgevonden Colliery
Xstrata Coal, (the Mine) on 21 May 2008
as a Digger Operator.
[4]
Ramalebo was charged and subsequently dismissed, following a
disciplinary enquiry, for the
damage of company property (namely
damage to an excavator machine he was driving) and failure to report
the damage to management.
Ramalebo was on a valid final written
warning for similar misconduct at the time of committing the
misconduct.
[5]
Following his dismissal, Ramalebo referred an unfair dismissal
dispute to the CCMA for conciliation.
The matter remained unresolved,
whereafter he referred the dispute to arbitration. The Commissioner
found Ramalebo’s dismissal
substantively fair. Procedural
fairness was not in dispute.
The
arbitration proceeding and award
[6]
The Mine has a rule against damage to company property. At
arbitration, Ramelebo admitted
that there was a rule, he was aware of
the rule and the rule was valid. However, Ramelebo denied that he
breached the rule and
that the rule had been consistently applied by
the Mine. Ramelebo further denied that the sanction of dismissal was
appropriate.
[7]
The Commissioner correctly identified the issue for determination
before him as being the
substantive fairness of Ramalebo’s
dismissal. The Commissioner was alive to the fact that the dispute
hinges on circumstantial
evidence and that such evidence is
persuasive if the inference sought to be drawn from the evidence is
consistent with all the
proven facts and it is the most plausible
inference. The Commissioner remained conscious of the fact that when
dealing with circumstantial
evidence, he is required to look at the
evidence in its entirety and weigh it on a balance of probabilities.
[8]
The Commissioner considered the totality of the evidence and found
that the Mine had succeeded
in proving its version, on a balance of
probabilities, that Ramalebo was guilty of the offence for which he
was charged and dismissed.
In reaching this conclusion, the
Commissioner took into account the fact that it was not in dispute
that Ramalebo was the last
person to utilise the machine in question;
that the machine was in good condition at the commencement of
Ramalebo’s shift
and the machine was already damaged prior to
the commencement of the following shift. Accordingly, the most
plausible inference
to be drawn from the evidence was that the
machine had been damaged by Ramalebo during the course of and prior
to him knocking
off from his shift.
[9]
The Commissioner then proceeded to consider whether the Mine had been
inconsistent in its
application of discipline in the workplace and
found that the applicants had failed to lead any evidence to support
this allegation.
Lastly, the Commissioner had to assess whether
dismissal was the appropriate sanction and found that it was fair, in
particular
when having regard to the fact that Ramalebo was on a
valid final written warning for similar misconduct at the time of
committing
the current misconduct.
The
applicants’ Grounds of Review and Analysis
[10]
The
applicants’ grounds for review are set out in their founding
affidavit
[5]
. The applicants did
not deliver a supplementary affidavit. There are, effectively, five
grounds of review raised by the applicants.
They are as follows:
10.1.
The Commissioner committed misconduct and/or an irregularity by
finding that Ramalebo
damaged the machine in question when there was
no evidence linking Ramalebo to the damage.
10.2.
The Commissioner committed misconduct and/or an irregularity by
finding that it was undisputed
that Ramalebo was the last person to
utilise the machine in question when this had in fact been placed in
dispute by the applicants,
which error resulted in the Commissioner
failing to determine an issue in dispute.
10.3.
The Commissioner committed misconduct and/or an irregularity by
finding that it was common
cause that the machine in question was
damaged prior to the commencement of the morning shift on 9 October
2011, which issue had
been placed in dispute by the applicant in that
Ramalebo had left it functional and parked it at the end of his
shift. The Applicant
avers that due to this error the Commissioner
failed to determine a material issue, which issue was in dispute.
10.4.
The Commissioner committed misconduct and/or an irregularity by
finding that there was
no evidence of inconsistent application of
discipline, such evidence having been adduced before him.
10.5.
The Commissioner committed misconduct and/or an irregularity by
admitting irrelevant evidence
and rejecting relevant evidence.
Legal
Principles
[11]
It is trite that
a review court must
ascertain whether the commissioner considered the principal issue
before him/her; evaluated the facts presented
at the hearing and came
to a conclusion which was reasonable to justify the decisions he or
she arrived at. The review court must
consider the totality of the
evidence then decide whether the decision made by the commissioner is
one that a reasonable decision-maker
could make.
[12]
When
applying
Goldfields
Mining South Africa (Pty) Ltd (Kloof Goldmine) v Commission for
Conciliation, Mediation and Arbitration and Others
[6]
,
what is required in a review application is a broad-based evaluation
of the totality of the evidence. Any other approach
defeats the
process of review contemplated in the LRA.
[7]
[13]
The Mine
presented circumstantial evidence to the Commissioner. The
Commissioner was alive to this. The approach to be adopted when
assessing circumstantial evidence is now trite. This approached was
summarised in
S
v Reddy and Others
[8]
as follows:
“
In assessing
circumstantial evidence, one needs to be careful not to approach such
evidence upon a piece-meal basis and to subject
each individual piece
of evidence to a consideration whether it excludes the reasonable
possibility that the explanation given
by an accused is true. The
evidence needs to be considered in its totality. It is only then that
one can apply the oft quoted dictum
in
R v Blom
1939 AD 188
at
202-203, where reference is made to two cardinal rules of logic which
cannot be ignored. These are, firstly, that the inference
sought to
be drawn must be consistent with all the proved facts and, secondly,
the proved facts should be such “that they
exclude every
reasonable inference from them save the one sought to be drawn”.
[14]
The
approach to be adopted when an inference is sought to be drawn from
other facts was summarised in
Cooper
and Another NNO v Merchant Trade Finance Ltd
[9]
.
Zulman JA observed that:
“
It is not
incumbent upon the party who bears the onus of proving an absence of
an intention to prefer to eliminate by evidence all
possible reasons
for the making of the disposition other than an intention to prefer.
This is so because the Court, in drawing
inferences from the proved
facts, acts on a preponderance of probability. The inference of an
intention to prefer is one which
is, on a balance of probabilities,
the most probable, although not necessarily the only inference to be
drawn. In a criminal case,
one of the "two cardinal rules of
logic" referred to by Watermeyer JA in R v Blom is that the
proved facts should be
such that they exclude every reasonable
inference from them save the one to be drawn. If they do not exclude
other reasonable inferences
then there must be a doubt whether the
inference sought to be drawn is correct. This rule is not applicable
in a civil case. If
the facts permit of more than one inference, the
Court must select the most "plausible" or probable
inference. If this
favours the litigant on whom the onus rests he is
entitled to judgment. If, on the other hand, an inference in favour
of both parties
is equally possible, the litigant will not have
discharged the onus of proof.”
Analysis
of Evidence
[15]
In addition to the facts identified by the Commissioner, the
following evidence is relevant to the damage
to the machine:
15.1.
A few
minutes after the conclusion of Visser and Ramalebo’s shift,
Visser was telephoned to return into the Mine due to the
damage
having been discovered.
[10]
Evidence was also led that the next Operator had not and could not
commence with his shift due to the discovery of the said damage
to
that machine, and the machine was, thus, on down time.
[11]
15.2.
Evidence
was led that the Mine operated on the basis of a ‘
hot
seat’
shift
change, i.e. an operator had to remain seated until the next operator
relieved him. Ramalebo had breached this procedure in
an attempt,
clearly, to avoid the damage being discovered while the machine was
still in his possession.
[12]
Evidence was also led that Ramalebo was on a valid final written
warning for the exact same transgression committed a few months
prior
to the incident, which provided an explanation and/or motive for him
not reporting the damage that he had caused on 8 and/or
9 October
2011.
[13]
[16]
In these circumstances, having regard to the totality of evidence,
the most probable and plausible inference
to be drawn is that
Ramalebo damaged the machine.
[17]
Contrary to what the applicants assert, which assertion is not
supported with reference to the record of
the arbitration
proceedings, there is sufficient evidence for the Commissioner to
have made a finding that Ramalebo was the last
person to have
operated the machine and that the machine was damaged by him. The
facts do not permit any other inference. Accordingly,
the
Commissioner’s findings in this regard does not constitute
misconduct and/or an irregularity.
[18]
In relation
to the inconsistency challenge, it is submitted that the applicants
failed to provide the level of detail necessary
to establish
inconsistent application of discipline by the Mine, as envisaged by
the Court in
Comed
Health CC v National Bargaining Council for the Chemical Industry and
Others
[14]
as
well as by the LAC in
SA
Commercial Catering
and
Allied Workers Union and Others v Irvin and Johnson Ltd
[15]
.
The information adduced did not serve to establish inconsistency and
to absolve Ramalebo of guilt and/or the imposition
of the sanction
called for based on the seriousness of the misconduct committed.
Accordingly, the Commissioner’s finding
on inconsistency does
not constitute misconduct and/or an irregularity on his part.
[19]
Finally, whilst the applicants raised it as a ground of review in
their founding affidavit, they failed to
take the issue of the
Commissioner having apparently taken into account irrelevant evidence
at the expense of relevant evidence
further and/or to support this
this with reference to the record of the arbitration proceedings.
Accordingly, this ground
has equally not been proven.
[20]
Accordingly, in considering the totality of the evidence before the
Commissioner, I am satisfied that the
Commissioner’s approach
to the evaluation of the evidence was correct and he reached a
reasonable finding.
[21]
Therefore in the circumstances, I make the following.
Order
2. The
applicants’ review application is dismissed; and
3. There is
no order as to costs.
—————————————
G.
Mthalane
Acting
Judge of the Labour Court of South Africa
Appearances:
For the Applicant:
Ms Malebalwa Molotsi of M.S Molebaloa Attorneys
Inc.
For
the Third Respondent: Mr Bongani Masuku of Mervyn Taback Inc
[1]
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR 1097 (CC).
[2]
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as Amicus
Curiae
)
[2013] 11 BLLR 1074 (SCA).
[3]
Goldfields
Mining South Africa (Pty) Ltd (Kloof Goldmine) v Commission for
Conciliation, Mediation and Arbitration and Others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC);
Fidelity
Cash Management Service v CCMA and Others
[2008]
3 BLLR 197
(LAC);
Head
of Department of Education v Mofokeng and Others
[2015] 11 BLLR 50 (LAC).
[4]
Sasol
Mining (Pty) Ltd v Commissioner Ngqelini and Others
[2011] 4 BLLR 404
(LC);
Southern
Sun Hotel Interests (Pty) Ltd v CCMA and Others
(2010) 31 ILJ 452 (LC);
Coega
Development Corporation (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[2016] 2 BLLR 151 (LC).
[5]
See: paras 29-43 of the founding affidavit.
[6]
[2014] 1 BLLR 20 (LAC).
[7]
This approach was also adopted in
Potgieter
v Tobatse Ferro Chrome and Others
(2014)
35 ILJ 2419 (LAC) at para 36.
[8]
1996 (2) SACR 1
(A) at p.8 C-E. See also: Mhlanganisa Gcaza vs The
State (Case No: 1400/2016) (Unreported decision) and Daniel
Mahlalela vs The
State (Case No: 396/16) (Unreported decision).
[9]
2000 (3) SA 1009
(SCA) at para 7.
[10]
See: Lines 12 – 17, p. 63 of the record bundle.
[11]
See: Lines 15 – 24, p. 13 read together with pp 17, 220 and
221 of the record bundle.
[12]
See: Lines 21 – 22, p. 14 and lines 1 – 22, p. 15 of the
record bundle.
[13]
See: Lines 9 – 17, p. 7 of the record bundle.
[14]
(2012) 33 ILJ 623 (LC), at para 10.
[15]
(1999) 20 ILJ 2302 (LAC), at para 29.