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[2019] ZALCJHB 153
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Tharisa Minerals (Pty) Ltd v CCMA and Others (JR966/18) [2019] ZALCJHB 153 (14 June 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR966/18
In
the matter between:
THARISA
MINERALS (PTY)
LTD
Applicant
and
CCMA
First Respondent
FOURIE,
STEYN,
N.O
Second Respondent
ASSOCIATION
OF MINING AND CONSTRUCTION
Obo
KOBUS VAN ZYL
Third Respondent
Heard:
11 January 2019
Delivered:
14 June 2019
JUDGMENT
NORTON,
AJ
Introduction
[1]
The Applicant is a mining company op
e
rating
in the Marikana District in the North West Province. The Third
Respondent is AMCU, a trade union
representing
Mr Kobus Van Zyl. Mr Van Zyl was a diesel mechanic employed by the
Applicant. He was also an AMCU shop steward.
[2]
The Applicant dismissed Mr Van Zyl for threatening violence. The
Applicant
convened a disciplinary enquiry on or about 16 February
2018. He was dismissed on 5 March 2018 and referred an unfair
dismissal
dispute to the Commission for Conciliation, Mediation and
Arbitration (CCMA) under case number NWRB 652-18. The dispute
proceeded
to arbitration on 4 May 2018.
[3]
On 11 May 2018 the CCMA found that the dismissal was unfair and
ordered
reinstatement to 5 June 2018 and payment of 3 months wages
amounting to R105 000,00. Around 29 May 2018 the Applicant filed
a review application, seeking an order to review and set aside the
award. The Respondents did not challenge the application, and
it
proceeded on an unopposed basis.
[4]
The onus
rests with the Applicant to show that the award is vulnerable to
review on the basis as set out in section 145(2) of the
Labour
Relations Act
[1]
(LRA). Proving
that an arbitrator committed gross misconduct in relation to his/her
duties, or committed a gross irregularity in
the conduct of the
arbitration proceedings, or exceeded his/her powers is an onerous
threshold to cross, and if the Applicant fails
to discharge that
onus, then the Court will not come to its assistance and will dismiss
the application. The converse is of course
true – that if the
Applicant proves that the arbitrator committed a reviewable defect
then the Court will come to its assistance
by either referring the
matter back to the CCMA for a hearing
de
novo
,
or by setting aside the CCMA’s decision and substituting that
award with an order the court deems appropriate.
Background
Applicant’s
version
[5]
In November 2017, an employee (Mynhardt) from a service provider to
the
mine (Pirtek) reported that he had seen two mechanics (Renier and
Frans) of Tharisa Minerals (the Applicant) using drugs. The mechanics
were placed on suspension on 2 January 2018 and advised to attend a
disciplinary hearing. Mr Van Zyl, as an AMCU shop steward was
the
employees’ representative.
[6]
Around 5 January 2018 (prior to the mechanics’ disciplinary
enquiry)
a whistle-blower identified as “Hansie” claimed
to Pirtek’s management (being Riaan Rossouw the Regional
Manager
for Pirtek and Francois de Beer, the site supervisor of
Pirtek) that he was contacted by Van Zyl who threatened him and said
that
he should not get involved in matters on the mine, and that
there could be serious implications for Pirtek.
[7]
The applicant contended that Rossouw was concerned about this because
he had had bad experiences with AMCU at a nearby mine in Steelpoort
and he did not want AMCU disrupting operations. He phoned Van
Zyl and
after leaving a message spoke to him in the afternoon.
[8]
However, Rossouw testified that Van Zyl did not threaten him, and
that
the whistle-blower did not say that Van Zyl threatened violence
against Pirtek. De Beer said that a whistle-blower told him that
Van
Zyl had said that Pirtek must not get involved in mine business and
that the applicant’s employees were calling Pirtek
employees
“
snitches
”. Furthermore that people had been
“
removed
” from the mine and that they were “
going
to get into trouble
”.
Respondent’s
version
[9]
Van Zyl admitted to phoning Hansie, in order to obtain information
about
the case against the two employees implicated in drug use.
Rossouw phoned AMCU leadership (Van Zyl) and said there was a problem
between the mine employees and Pirtek employees, and proposed a
meeting to discuss the matter. The meeting never materialised.
Van
Zyl denied that he had threatened anyone, and regarded the employer’s
evidence as “
fabrication
”.
The
arbitration award
[10]
The arbitrator found that the employer’s witnesses contradicted
each other in material
respects. Roussouw said that he could not
recall the whistle-blower mentioning that Van Zyl threatened
violence, and nor did Van
Zyl threaten him; De Beer says that the
whistle-blower reported that he was threatened by Van Zyl. The
arbitrator found the AMCU
witnesses to be credible, and that their
versions corroborated each other.
[11]
The arbitrator noted that the whistle-blower never prepared a
statement, and that his version
of events was reported (in
contradictory terms) by Rossouw and De Beer. The arbitrator found
that the employer could not prove
its case on a balance of
probabilities that Van Zyl threatened violence when he phoned the
whistle-blower.
[12]
The
arbitrator found that, “
Rossouw
and de Beer’s evidence contradict each other in material
aspects. Rossouw stated that he did not receive any information
from
any of his employees that the Applicant (in the arbitration –
Van Zyl) threatened violence against Pirtek but de Beer,
in Rossouw’s
presence heard the whistle-blower to implicate the Applicant. I am of
the view the Respondent could not prove
its case on a balance of
probabilities that the Applicant threatened violence when he
telephonically called the whistle-blower
(“Hansie”) and
therefore I cannot attach any weight to the probative value of the
hearsay evidence of the whistle-blower
as heard from Rossouw and de
Beer. It therefore flows that the Applicant’s case is
probable
.”’
[2]
[13]
Accordingly he found that the dismissal was substantively unfair.
Grounds
of review
[14]
The Applicant sets out the history of the dispute in the Founding
Affidavit but does not
explain in what respects the arbitrator
allegedly misdirected himself warranting this court’s
interference. In other words
he doesn’t clearly set out the
‘grounds” for review.
[15]
I can glean from the Affidavit that the apparent misdirection
may be summarised as follows:
15.1.
The
arbitrator reached conclusions which were not capable of
justification in that he dismissed the evidence of the employers
witnesses
as ‘contradictory”
[3]
15.2.
The
Arbitrator attached too little weight to the reason the Third
Respondent had communicated with Hansie (presumably implying that
the
real reason Van Zyl contacted Hansie, a foreman from Pirtek, was to
intimidate/dissuade Pirtek employees from testifying against
the
applicant’s employees implicated in misconduct).
[4]
[16]
The
Applicant’s Supplementary affidavit did not take the matter
much further and reiterates the argument that the Third Respondent
had no reason to contact Hansie, except to instill fear in the minds
of employees at Pirtek not to testify.
[5]
The
material evidence before the arbitrator
[17]
The arbitrator noted that the recollection
of the report from Hansie to de Beer and Roussouw about Van Zyl’s
telephone call
to him (Hansie) was materially contradictory. In short
de Beer recollected that Hansie had understood from the exchange the
intention
that Van Zyl had to intimidate him and by implication other
Pirtek employees. Roussouw’s recollection was precisely the
opposite.
[18]
De Beer said, that Hansie had told him that
‘
people had been removed from the
mine for much smaller things
.”
Whereas Rossouw said the following:
“…
so
we went into a discussion and what he told me was that there were
rumours on the mine…they must be careful to deal with
Pirtek
because Pirtek is snitches…”
[6]
“…
(Hansie)
told me that AMCU was now involved in this whole thing. He told me
that AMCU was involved and I asked him who is in charge
of AMCU …he
gave me the number of Kobus.”
[7]
He was asked, “Did
(Hansie) mention that he was threatened by Kobus…?”
Roussouw
says, “No he did not say that…”
[8]
He was asked: “Did
you at any stage receive information from any of your employees that
implicates the Applicant to have threatened
violence against your
employees in your company?”
Rossouw
replies, “Not to me, no. No.”
[9]
[19]
The Applicant urges the Court to consider
the factual matrix which included Roussouw’s concern that AMCU
could disrupt operations
as happened at Steelpoort, and that de Beer
had nothing to gain by misrepresenting Van Zyl’s underlying
message.
[20]
The arbitrator weighed these considerations
with the evidence of Van Zyl who knew Hansie, who denied that he had
intimidated him,
and explained that he was investigating the
circumstances related to the suspension of two members.
[21]
It must be borne in mind that Hansie did
not testify at the arbitration, and nor is there a report or
statement prepared by him
– all the court has is the
recollection of the witnesses’ de Beer, Rossouw and Van Zyl.
Analysis
[22]
The
finding the arbitrator arrived at, that the employer did not prove on
a balance of probability that Van Zyl threatened violence
is a
logical one, well within the
Sidumo
and Another v Rustenburg Platinum Mines Limited & others
[10]
spectrum of reasonableness:
22.1.
Rossouw spoke to Van Zyl and reported no
threat of violence;
22.2.
Rossouw’s recollection of the report
from Hansie mentioned no violence;
22.3.
Van Zyl explained that he phoned Hansie
enquiring about the circumstances surrounding the suspension.
[23]
Whilst de Beer gave evidence that he had a
good memory and that there was the threat of “
people
have been removed for smaller things
”
– that evidence must be weighed with the direct recollection of
Rossouw and Van Zyl (who had a telephonic interchange).
[24]
To succeed on review the Applicant must
show that the arbitrator arrived at a result which no other
arbitrator reasonably could,
and that the misdirection fell within
the provisions of section 145 (2) of the LRA. The Applicant has
failed to pass this hurdle.
[25]
The Applicant has not made out a case for
review of the award. There is no reason for the court to interfere
with the arbitrator’s
award.
[26]
Accordingly I make the following order
Order
1.
The application is dismissed.
_________________________
D.
Norton
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate W. Hutchinson.
Instructed
by:
Fluxmans Incorporated.
[1]
66 of 1995, as amended.
[2]
Paragraph
27
[3]
Paragraphs
8.2 and 8.3
[4]
Paragraphs
8.5 and 8.7
[5]
Paragraph
6
[6]
Transcript,
pg 56
[7]
Transcript
pg 58
[8]
Transcript
pg 59
[9]
Transcript
pg 61
[10]
(2007)
28 ILJ 2405 (CC).