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[2019] ZALCJHB 241
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Far North Plastics CC v Commission for Conciliation, Mediation and Arbitration and Others (JR753/13) [2019] ZALCJHB 241 (18 September 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 753/13
In
the matter between:
FAR
NORTH PLASTICS
CC Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION First
Respondent
COMMISSIONER
PIET SHAI
N.O
Second
Respondent
ANDRIES
PETRUS
BRITS Third
Respondent
Heard:
17 July 2018
Delivered:
18 September 2019
JUDGMENT
PIENAAR,
AJ
Introduction
[1]
This is an
application in terms of section 145 of the Labour Relations Act
[1]
(LRA) to review and set aside an award made by the Second Respondent
(the Commissioner). In his award, the Commissioner found that
the
Third Respondent's (Brits) dismissal was procedurally fair but
substantively unfair and ordered compensation amounting to R
52,000.
[2]
The basis for the review is that the Commissioner committed a gross
irregularity
in conducting the proceedings and that, as a result, he
reached a conclusion which no reasonable decision-maker could reach.
Thus,
it is the Applicant's contention that the Commissioner erred in
his finding that the dismissal of Brits was substantively unfair
and
that Brits need to be compensated.
The facts
[3]
Brits commenced employment as a technician of extruded machines with
the
Applicant on 01 September 2011. There was a dispute between Brits
and his employer with regard to the assembly of the intruder machine
on 21 and 22 August 2012 and the operation thereof on 27 August
2012.
[4]
Consequently, Brits was charged with –
4.1
Gross misconduct contrary to Brits' fiduciary duty in the workplace
in that
Brits on or about 20 and 21 August 2012 disregarded an
instruction to put an extruder Brits worked on back together;
4.2
Gross misconduct contrary to Brits' fiduciary duty in the workplace
in that
Brits, on or about 27 August 2012, failed in his duties to
start the extruder before 11h00. Brits ultimately had the extruders
only running at 16h30. Brits' actions amount to gross dereliction of
duty, and or gross negligence.
[5]
On 06 September 2012, after a disciplinary hearing, Brits was
dismissed.
[6]
At the Arbitration proceedings, various versions of events were put
forward
to the Commissioner. It was Brits' version that he had not
received any instruction to assemble the extruder on his own on
Monday,
20 August 2012. Rather, the production manager of the
Applicant Mr Naude had informed Brits that they would assemble the
extruded machine together at a later stage. Consequently, Brits
denied that he failed to carry out an instruction.
[7]
Although conceding that he and Naude had dissembled the extruder the
previous
Friday, he submitted that Naude had indicated on the Monday
that they would assemble the extruder together. He enquired when they
would undertake to do such a task, to which Naude informed Brits that
it would be done later as the machine would not run that
Monday and
the following day.
[8]
On 21 August 2012, he enquired with Naude and was informed that they
would
do the work later. On the same day, Brits fell ill and
requested to go to the doctor. On Wednesday, 22 August 2012 he was
booked
off sick and he informed the Factory Manager, Mr Oosthuizen.
Upon his return, on 27 August 2012, Oosthuizen informed him that he
had failed to carry out the instruction. He informed Oosthuizen that
he had never received any such instruction from Naude in that
he was
told that they would assemble the extruder together.
[9]
He further testified that when Oosthuizen later returned, he informed
him that Naude admitted that he did inform Brits that they would
assemble the extruder together. This gave him the impression that
the
matter was resolved.
[10]
Brits further testified that on 31 August 2012, Oosthuizen called him
and asked him to
resign. This refusal was met with an ultimatum that,
should he fail to do so, charges would be levelled against him. He
was surprised
by the issue of the charges as he thought the matter
had been resolved.
[11]
Conversely, Oosthuizen testified that, on 20 August 2012, he went to
the Applicant's premises
(the factory) and instructed Naude to
instruct Brits to assemble the extruded machine. Oosthuizen admitted
to being uncertain whether
this had actually transpired but that he
was confident Naude had given the instruction due to Oosthuizen's
"trust" in
Naude. Two days after giving this instruction,
Oosthuizen noted that the Extruded machine had not been assembled.
Oosthuizen conceded
that the extruder operator was not present on the
day in question and that Brits did not operate the extruder on a
daily basis.
[12]
Furthermore, Naude, although conceding to having dissembled the
extruder with Brits the
previous Friday, denied that he told Brits to
wait for him to assemble the extruder together. Moreover, he denied
that it was the
first time Naude was doing the job. Naude maintained
that he gave Brits the instruction to assemble the extruder in the
morning
and that Brits should inform him if he encountered a problem.
He conceded that he had assisted Brits to dissemble the extruder the
previous Friday and on Monday instructed him to assemble the
extruder.
[13]
Naude was questioned if the instruction was urgent. In answer, he
admitted that he did
not know whether or not the instruction was
urgent given that the extruder was only put together and started on
27 August 2012
(six days later). Furthermore, the extruder had not
been assembled for a period of one week in the absence of Brits given
that
he had been booked off sick from 21 to 26 August 2012.
[14]
He admitted that the operator who normally operates the extruder was
not present and Brits
was assisted by one other employee. He
testified further that, on the day that the instruction was given,
Brits took a lunch break
so that he could collect his daughter from
school. He indicated that he had no problem with that however, he
could not recall whether
he reported this to Oosthuizen.
The arbitration award
Charge One
[15]
The Commissioner stated in his award that the evidence of Naude and
Brits were of a conflicting
nature and, consequently, the credibility
of the two witnesses came into question. In particular, the
Commissioner made an adverse
finding on the credibility of Naude as,
on more than two occasions, Naude could not recall essential facts
such as what he had
reported to Oosthuizen regarding Brits or whether
he personally saw that the instruction had not been complied with.
Furthermore,
Naude stated that he could not remember whether he had
reported the fact that Brits had taken leave in order to fetch his
child
from school to Oosthuizen.
[16]
The Commissioner considered the evidence, which Naude could not
accurately recall, as material
evidence given the fact that the
charges centred around Brits' non-compliance with the instruction.
[17]
Further inconsistencies were evident to the Commissioner in that
Naude testified that Brits
was instructed to carry out the
instruction alone for the purpose of learning to do it by himself but
also testified that he offered
Brits assistance but Brits chased him
away.
[18]
In contrast to Naude's versions, Brits testified that when he was
struggling with the extruders,
Naude was smoking and was merely
watching him do the work.
[19]
The Commissioner found that the version of Brits was more probable
given that it was Brits'
uncontested evidence that on two occasions
he went to Naude to ask him about when the assembling of the extruder
would be done.
The Commissioner concluded that this was not the
demeanour of an individual with an intention to defy any instruction.
[20]
Another important factor considered by the Commissioner was that the
machine was left unassembled
for about seven days while Brits was on
sick leave which is consistent with the testimony of Brits. The
Commissioner ultimately
found the version of Brits more probable than
that of the Applicant.
Charge
Two
[21]
With regard to the second charge, the Commissioner concluded that the
Applicant's belief
that the extruder only started to run at 16h30 was
incorrect. The documentary evidence reveals that machine B and F
started to
run at 08h00, machine A started to run at 10h00, machine C
started to run at 12h00 and machine D and E started to run at 16h00.
Therefore, the Applicant's version that the machines only started
running at 16h30 is incorrect.
[22]
Furthermore, Brits testified that he was not the person who started
the machines on a daily
basis and that he had encountered problems
given that he was working without assistance.
[23]
Ultimately, the Commissioner found that Brits was not the person who
started the machines
on a daily basis, and thus could not have been
reasonably expected to be as efficient in carrying out the
instruction as the operator.
[24]
After the assessment of the evidence, the Commissioner reached
the following conclusion:
"In brief looking at
the charge and how the events unfolded on the days in question the
employee could be charged with poor
work performance or ordinary
negligence. However, the fact that the employer orchestrated the
results as aforementioned, the employee
was not the person who
started the machines on a day-to-day basis (he had to do this as the
operator was not in on the date in
question and could not have been
as efficient as him), the fact that most machines were old. I do not
find the Applicant guilty
on the second charge."
Analysis
of the award
[25]
In my view, the Commissioner’s analysis is accurate and the
conclusion that flows
from it is logically sound.
[26]
The Commissioner has correctly considered the two competing versions
of the witnesses and
has applied probability assessment to them. In
doing so, the Commissioner was correct to find that the Applicant had
failed
to prove that it had issued a reasonable instruction which
Brits had failed and/or refused to comply with.
[27]
The essential ingredients of an assessment of the credibility of the
witnesses is the consideration
of the inherent probability or
improbability of the version that is proffered by the witnesses, and
an assessment of the probabilities
of the irreconcilable versions
before the Commissioner.
[28]
Cele AJ (as
he then was) observed in
Lukhanji
Municipality v Nonxuba NO and others
[2]
,
that while the LRA requires a Commissioner to conduct an arbitration
hearing in a manner that the Commissioner deems appropriate
in order
to determine the dispute fairly and quickly, this does not exempt the
Commissioner from properly resolving disputes of
fact when they
arise.
[29]
In
SFW
Group:Ltd & another v Martell et Cie and others
[3]
,
the proper approach to the resolution of factual disputes was
explained by the Supreme Court of Appeal (per Nienaber JA) in the
following terms:
"On the central
issue, as to what the parties actually decided, there are two
irreconcilable versions. So, too, on a number
of peripheral areas of
dispute which may have a bearing on the probabilities. The technique
generally employed by courts in resolving
factual disputes of this
nature may conveniently be summarised as follows. To come to a
conclusion on the disputed issues a court
must make findings on (a)
the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As
to (a), the court’s
finding on the credibility of a particular witness will depend on its
impression about the veracity of
the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the
witness’ candour and demeanour
in the witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his
evidence, (iv) external contradictions with
what was pleaded or put on his behalf, (v) the probability or
improbability of particular
aspects of his version, (vi) the calibre
and cogency of his performance compared to that of other witnesses
testifying about the
same incident or events. As to (b), a witness’
reliability will depend, apart from the other factors mentioned under
(a)
(ii), (iv) and (v) above, on (i) the opportunities she had to
experience or observe the event in question and (ii) the quality,
integrity and independence of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the disputed
issues. In the light of the assessment of (a), (b) and (c)
the court
will then, as a final step, determine whether the party burdened with
the onus of proof has succeeded in discharging
it. The hard case,
which will doubtless be a rare one, occurs when a court’s
credibility findings compel it in one direction
and its evaluation of
the general probabilities in another. The more convincing the former,
the less convincing will be the latter.
But when all factors are
equipoised probabilities prevail (at paragraph 5 of the judgment). "
[30]
In
Harmony
Gold Mining Company Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[4]
the Court stated the following:
"
What
the analysis above makes clear observations of demeanor are merely
one factor among many in assessing credibility and many
factors
bearing on credibility will be apparent from the transcript of
evidence. It is also obvious that credibility findings based
on
observation of the witness are not the only or the first recourse in
assessing credibility and even less so in evaluating probabilities.
Adjudicators should be wary of making definitive credibility findings
based on their supposed omniscient ability to detect unreliable
evidence solely from observing a witness."
[31]
In
Assmang
Limited (Assmang Chrome Dwarsriver Mine) v Commission for
Conciliation Mediation And Arbitration and Others
[5]
the approach to the question whether the onus has been discharged was
dealt with as follows:
"Ultimately the
question is whether the onus on the party, who asserts a state of
facts, has been discharged on a balance of
probabilities and this
depends not on a mechanical quantitative balancing out of the pans of
the scale of probabilities but, firstly,
on a qualitative assessment
of the truth and/or inherent probabilities of the evidence of the
witnesses and, secondly, an ascertainment
of which of two versions is
the more probable."
[32]
One of the Commissioner’s prime functions was to ascertain the
probabilities of the
conflicting versions before him. As I have
noted, the Commissioner have done as much.
[33]
The Commissioner correctly assessed the improbabilities preferred by
the Applicant's witnesses.
The Commissioner appears to have
considered the prospects of any partiality, prejudice or
self-interest on either parties' part,
and determined the credit to
be given to the testimony of each witness by reason of its inherent
probability or improbability.
[34]
The Applicant’s grounds for review relate mainly to the
Commissioner's failure to
take into account relevant facts and his
failure to apply his mind to the evidence before him.
[35]
In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[6]
the review test was established and was confirmed in
Herholdt
v Nedbank
[7]
where the court held:
"the results which
is substantively unreasonable in the sense that no reasonable
Commissioner, acting reasonably, could have
reached the decision on
the evidence and the inferences drawn from it. So it is clear that
notwithstanding its excurses on latent
irregularities and dialectical
unreasonableness, the LAC was alive to Sidumo and applied it
correctly. There is therefore no basis
for this court to interfere
with its decision".
[36]
The Commissioner correctly stated that the two versions must be
weighed against each other
and the one that is most probable must
succeed. The decision-making powers ultimately lies with the
Commissioner unless it is concluded
that a reasonable decision-maker
could not have arrived at such a decision.
[37]
In the present instance, at the risk of repeating what I have stated
above, it is sufficient
to observe that the Commissioner properly
applied his mind to the contradictions in Naude's evidence at the
disciplinary hearing.
The Commissioner correctly dealt with the
improbability that Naude's instruction was to let Brits carry out the
instruction on
his own so that he could learn, whereas at the same
time he offered his assistance.
[38]
The Commissioner also dealt with the credibility of Brits as a
witness in that he gave
coherent evidence without any contradictions.
Apart from obvious behavioural difficulties and destructiveness at
the hearing, Brits
appeared to have been an overall credible witness.
The Commissioner correctly concluded that the version of Brits was
more probable
than that of Naude's.
[39]
On this basis I do not believe that there is any gross irregularity
committed by the Commissioner
in the conduct of the arbitration
proceedings. Thus, the Commissioner's ultimate finding that Brits'
dismissal was substantively
unfair resulting in compensation of R52
000,00 is entirely reasonable.
[40]
The following order is accordingly made:
Order
1. The
review application is dismissed with costs.
_______________________
Pienaar AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: G J Geldenhuys of
Geldenhuys Attorneys
For
the Respondent: Mr H Bucksteg
Instructed
by:
A Ramsay Attorneys
[1]
Act 66 of 1995, as amended
[2]
[2007]
2 BLLR 130 (LC).
[3]
2003
(1) SA 11 (SCA).
[4]
(2018)
39 ILJ 1059 (LC).
[5]
(2015)
36 ILJ 2203 (LC)
at
para 40.
[6]
(2008) 28 ILJ 2405 (CC).
[7]
(2013) 34 ILJ 2795 (SCA).