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[2019] ZALCJHB 127
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National Union of Metal Workers of South Africa and Another v SASOL Synfuels (Pty) Ltd and Others (JR2428/2015) [2019] ZALCJHB 127 (5 June 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
CASE
NO: JR2428/2015
In the matter between:
NATIONAL UNION OF
METAL WORKERS
OF SOUTH
AFRICA
First
Applicant
TANUSHA, DEBORAH
GEORGE
Second Applicant
and
SASOL SYNFUELS (PTY)
LTD
First Respondent
NATIONAL BARGAINING
COUNCIL FOR THE
CHEMICAL INDUSTRIES
(NBCCI) Second
Respondent
THABISO SEKHABISA,
N.O Third
Respondent
Heard: 7 March 2019
Delivered: 5 June 2019
JUDGMENT
LALLIE J
[1]
This is an application to review and set aside an arbitration award
of the third respondent
in which he found the applicant’s
dismissal by the first respondent both substantively and procedurally
fair. It is opposed
by the first respondent.
[2]
The applicant filed the record of the arbitration proceedings (the
record) late and
brought an application seeking condonation for the
delay. The condonation application is also opposed by the first
respondent.
Rule 7A (6) of the Labour Court Rules (the Rules)
requires an applicant for review to furnish other parties with a copy
of the
record or the portion of the record the applicant seeks to
rely on in the review application. Clause 11.2.2 of the Practice
Manual
of the Labour Court (the Practice Manual) requires the
applicant to file the record within 60 days of the date on which the
applicant
is advised by the registrar of its availability. Failure to
file the record within the 60 day period results in the applicant
being
deemed to have withdrawn the review application. Clause 11.2.3
of the Practice Manual provides for a procedure which the applicant
has to follow to prevent a review application being deemed withdrawn.
It is common cause that the applicant did not follow the
procedure.
[3]
The major cause of the applicant’s delay in filing the record
is that the second
respondent neglected its obligation of dispatching
the mechanically recorded record of the arbitration proceedings to
the registrar.
The applicant had to put pressure on the second
respondent to make the record available. The applicant’s
problems did not
end with the failure to file the record. Some parts
of the record that was eventually filed turned out to be either
incorrect or
faulty resulting in further delays. The applicant
communicated the reasons for the delay to the first respondent. At
all material
times therefore the first respondent was aware of the
reasons for the delay. The first respondent’s decision of not
executing
its threat of bringing an application for the dismissal of
the review application owing to the delay supports the applicant’s
view that she did not sit on her hands but took active steps to
ensure that the record was available.
[4]
I have considered the applicant’s submissions that condonation
be refused because
the applicant has no prospects of success. A
reading of the applicant’s papers reflected that should some
averments she made
be proved, her application for review will be
granted. The approach adopted by the applicant in arguing that the
applicant has
no prospects of success is incorrect. It raises the
standard of proof of prospects of success. The allegations made by
the applicant
suffice.
[5]
The applicant furnished a reasonable explanation for the delay. She
has prospects
of success on review and she will suffer more prejudice
should condonation be refused as she will lose the right to have her
review
application heard. The interests of justice therefore justify
condonation. The application for condonation, should, in the
circumstances
succeed.
[6]
The factual background to this dispute is that the applicant was
employed by the first
respondent until her dismissal on 13 December
2013 at a time she held the position of a Process Engineer at the
first respondent’s
Technical Cluster. Subsequent to her
dismissal she referred an unfair dismissal dispute to the second
respondent where the third
respondent issued the arbitration award
under review.
[7]
In the award, the third respondent noted that Ms Correia became the
applicant’s
line manager in 2012. In 2013 Correia asked her to
assist in other projects but she refused on the grounds that they
fell outside
the scope of her responsibilities. Ms Correia sought the
assistance of the manager of the Product and Technical Department in
persuading
the applicant to do heater efficiency calculations. The
applicant persisted with her refusal. The calculations were vital in
ensuring
the quality of the petrol the first respondent produced. Ms
Correia held discussions with employees who reported to her about
their
work. The applicant, however, refused to attend the meeting
scheduled to discuss her work. Her reason for not attending the first
work discussion was that she was busy. She cited their unhealthy
working relationship for refusing to attend the second one. The
applicant wanted to discuss her work with Mr Du Toit whose position
was three levels above Ms Correia’s. Ms Correia told
the
applicant to discuss her work with her line manager whose position
was two levels above hers. The applicant refused. Ms Correia
recommended that the applicant worked under Mr Schoeman because of
her refusal to carry out her instructions. The applicant refused
and
continued doing but a portion of her duties. As the applicant elected
not to testify at arbitration, the third respondent found
that the
first respondent had discharged the onus of proving the fairness of
the applicant’s dismissal. He therefore concluded
that her
dismissal was substantively and procedurally fair.
[8]
The applicant’s grounds for review are mainly based on gross
irregularities
in the form of errors committed by the third
respondent in the conduct of the arbitration as envisaged in section
145 (2) of the
Labour Relations Act
[1]
(the Act).
[9]
In her founding affidavit the applicant stated the grounds for review
which are provided
in section 145 (2)(a) of the LRA. She added other
generic grounds for review without adding factual averments on which
the grounds
were based. I accept the first respondent’s
argument that the applicant’s approach is incorrect and does
not comply
with provisions of Rule 7A (2)(c). In her supplementary
affidavit, the applicant added a long list of the errors which in her
view,
the third respondent committed and rendered his award
unreasonable. The approach was also attacked by the first applicant
as the
impermissible piece-meal approach which was rejected in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration
[2]
.
[10]
The submissions on behalf of the applicant constitute, in the main,
the case she should have
presented at arbitration which would have
assisted the third respondent in determining the fairness of her
dismissal. She elected
not to give evidence. One of her grounds for
review is that the third respondent committed a gross irregularity in
not apprizing
her of the consequences of closing her case without
tendering evidence. I am not convinced that the ground she seeks to
rely on
is valid because she was represented by NUMSA representatives
for the duration of the arbitration. She cannot put the blame at the
arbitrator’s door when the advice she was given by
representatives of her choice did not yield the result she desired.
[11]
I have considered all the grounds for review the applicant sought to
rely on and their opposition
by the first respondent. The power to
determine the fairness of a dismissal is bestowed on arbitrators by
the LRA. The court of
review has to ensure that the power is
exercised reasonably. In
Gold
Fields
it was held that the review court has to consider the totality of the
evidentiary material which was properly placed before the
arbitrator
in assessing the reasonableness of an arbitration award. In
Herholdt
v Nedbank
[3]
the SCA required the review court to consider the evidence ‘in
the round’. The review court, in determining the reasonableness
an arbitration award, has to determine whether the arbitrator
fulfilled his or her obligations in terms of section 138 (1) of the
LRA by conducting the arbitration fairly, dealing with the issue,
analysing evidence and reaching a reasonable decision
[4]
.
[12]
The third respondent did not misconceive the dispute before him. He
stated that he had to determine
whether the applicant’s
dismissal was substantively and procedurally fair and to grant relief
if he found it unfair. He recorded
the gist of the evidence of each
witness who testified at the arbitration. The third respondent
analysed the evidence at length
against the acts of misconduct which
led to the applicant’s dismissal. He found the evidence on
behalf of the first respondent
credible, clear, coherent and without
contradictions. He expressed the view that during the cross
examination of the first respondent’s
witnesses the applicant
presented a bare denial of the accusations against her. He accepted
the only version before him and found
that the applicant had made
herself guilty of the charges which had been preferred against her.
[13]
The third respondent considered the procedural fairness of the
applicant’s dismissal and
found that the first respondent’s
decision not to allow the applicant to be represented by a NUMSA
official because NUMSA
was not amongst the trade unions that were
recognised by the first respondent was not unfair. He noted that it
was common cause
that the applicant left her disciplinary enquiry
after her request to be represented by a NUMSA official was declined.
She returned
shortly thereafter and sought to be given an observer
status at the disciplinary enquiry. Her request was not acceded to.
The third
respondent accepted the first respondent’s evidence
that it acted in terms of its disciplinary code which requires all
the
parties to consent to the presence of an observer in a
disciplinary enquiry. As it withheld its consent an observer could
not be
present at the disciplinary enquiry. The third respondent
found that version fair. He found that the cumulative effect of the
acts
of misconduct the applicant had made herself guilty of and the
evidence that the relationship between the parties had broken down
irretrievably rendered the sanction of dismissal fair.
[14]
The applicant argued that the evidence does not prove that she
committed all the acts of misconduct
she was dismissed for. The third
respondent’s decision is connected to the evidence before him
and falls within bounds of
reasonableness. The applicant presented no
errors which vitiated the award and therefore no grounds to have the
award reviewed
and set aside.
[15]
In the premises the following order is made:
Order:
1.
The late filing of the record is condoned.
2.
The application for review is dismissed.
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant:
Advocate
S.L Shangisa
Instructed
by:
KNT Attorneys
For
the First Respondent: Mr.
D.O Pretorius of Fluxmans
Attorneys
[1]
66 of 1995 as amended
[2]
[2014] 1 BLLR 20 (LAC)
[3]
(2013)
34 ILJ 2795 (SCA) at para 12.
[4]
Goldfield
supra