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[2019] ZALCJHB 352
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Nchoe and Another v Castle Lead Works (Pty) Ltd and Others (JR1490/16) [2019] ZALCJHB 352 (18 December 2019)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 1490/16
In the matter between:
ABBEY NARE
NCHOE
1
ST
Applicant
EMMANUEL MAMOTSIETSA
NCHOE
2
ND
Applicant
And
CASTLE LEAD WORKS
(PTY) LTD
1
ST
RESPONDENT
METAL AND ENGINEERING
INDUSTRIES
BARGAINING COUNCIL
(MEIBC)
2
ND
RESPONDENT
DAVE SMITH
N.O
3
RD
RESPONDENT
Heard: Delivered: 29
August 2019
Summary: 18 December
2019
JUDGMENT
MABASO
AJ
:
Introduction
[1]
The question in this judgment is whether the Third Respondent reached
a conclusion
which a reasonable decision-maker could have reached
taking into account the evidence presented during the arbitration
hearing,
as he was required to decide the substance of the dispute
between the parties.
[1]
The
review application was launched more than three weeks out of time,
and the applicants delivered an affidavit explaining the
delays. I am
of the view that the delay is not excessive, therefore, on this point
alone, the late delivery of the review application
is condoned.
[2]
The applicants (Messrs Abbey Nare Nchoe and Emmanuel Mamotsietsa
Nchoe) were dismissed
on 4 August 2014 following the finding of
guilty relating to a charge of demanding that the labour broker
employees “
to buy them airtime and/or Cold drink for working
overtime”
. All three charges, that resulted to their
dismissal emanate from this charge. Following their dismissal, they
declared an unfair
dismissal dispute against the First Respondent
before the Second Respondent. The latter appointed the Third
Respondent to arbitrate
the dispute, which resulted in the
arbitration award under review.
Brief
background
[3]
Both applicants worked as Supervisors for the First Respondent. It
was alleged that
since around 2010, they were demanding airtime
vouchers from certain employees, who were based at the First
Respondent but were
employed by labour brokers. It is necessary to
reproduce the charges that resulted to the applicants' dismissal.
They read thus:
"1
it is alleged that you requested some employees in particular labour
brokers employees
to buy you airtime and/or Cold drink for working
overtime.
2.
It is alleged but you misused/abused your position as Supervisor by
accepting
airtime/and or cold drink from some employees who were
working overtime.
3.
It
is alleged that you brought the company in disrepute by
dishonestly putting some employees under the impression that it
is
accompanied practice to pay or to buy airtime or cold drinks when
they are requested to work overtime
.”
[2]
[4]
All the three charges are interrelated, and charges 2 and 3 indicate
that the issue
is about misrepresentation. I must indicate that the
issue as to whether or not those employees believed that the
applicants had
an influence was not the primary issue, but the main
issue was "putting some employees under the impression that it
is a company
practice to pay or to buy airtime or cold drinks"
in exchange for overtime work/favours.
[5]
In summary, the evidence before the Third Respondent was thus: Mr
Reginald Madito
(Mr Madito) testified that when they joined the First
Respondent an induction was conducted by Mr Abbey Nchoe, who then
gave them
his contact details and said that after their first
payment, they must buy him an airtime voucher (the airtime voucher).
Following
his first payment when he did not buy the airtime voucher,
Mr Abbey Nchoe approached him to inquire why he failed to comply with
his demand, he then explained the reasons which resulted to him
starting to experience challenges and he gave examples about the
allocation of uniforms. And he was told by Mr Abbey Nchoe that he was
disadvantaged because he had failed to adhere to the instruction.
[6]
Ms Ellen Veldhoven stated that one of the employees of the First
Respondent resigned
following intimidation from two of the
Supervisors who were extorting money from them, by asking them to buy
airtime vouchers.
Both the Supervisors were subjected to polygraph
tests which the results were not in their favour.
[7]
Mr David Khumalo testified thus: in his department, there was no
overtime worked.
He then approached both Applicants to ask them if
they can let him work overtime in their department. Then Mr Abbey
Nchoe advised
that he will let him work overtime but must buy him an
airtime voucher. He ended up buying R24.00 airtime voucher, then he
experienced
no further problems. Mr Emmanuel Nchoe asked for cold
drinks, and he complied with this request.
[8]
Mr Moses Kubeka (Mr Kubeka) testified that he was a shopsteward. He
was approached
by Mr Madito complaining that he was buying airtime
vouchers for the applicants. A general meeting was held where this
issue was
discussed, and Mr Madito repeated these allegations, and Mr
Khumalo confirmed that he was also a victim. The matter was not
immediately
reported to the Human Resource Department.
[9]
Mr Charles Rudolf Meyer (Mr Meyer) was employed as a Production
Director. He explained
that if there is a need for overtime, he would
ask a Supervisor “
if anybody did ask for any overtime, then
[he] will take it further from there”.
He confirmed that
sometimes the Supervisors would come to him with a list of people who
wanted to work overtime.
[10]
Mr Manganyi stated that: when the First Respondent was closing for
the December holidays, he
was approached by Mr Abbey Nchoe who
demanded that he buys him cold drinks if he wanted to continue
working for the First Respondent
on the following January. He then
bought a cold drink. He accused Mr Emmanuel Nchoe of demanding
something then he reported this
to Mr Marcus.
[11]
The applicants denied all the allegations levelled against them.
[12]
At the conclusion of the arbitration, the arbitrator issued the
arbitration award, concluding
that the applicants were guilty of the
charges against them. Therefore, the dismissal was both procedurally
and substantively fair.
Grounds
for review and analysis
[13]
The applicants are challenging the award, specifically the reasoning
of the Third Respondent, as they
contend in summary that.
[14]
It is alleged that the Third Respondent committed gross irregularity
in respect of the weight that
he put to the notes of the meeting
where the complaints and allegations are recorded. The applicants
contend that the issue before
the Third Respondent was not whether
the notes were fabricated or not, but whether both of them committed
the offences, which resulted
in their dismissal. The applicants say
that the notes show that there was a complaint laid against them but
cannot be said to be
"powerful" evidence which proves the
guilty verdict. Further, it is alleged that the evidence of the
shopstewards was
not in line with the notes.
[15]
They also contend that the finding by the Third Respondent, that they
were in the position to influence
the issue of overtime and secure
contracts, is not based on the evidence and the facts that were
presented before the arbitrator.
Further that the evidence presented
does not support the conclusion of the Third Respondent.
[16]
They say that the Third Respondent failed to apply his mind to all
the facts and evidence presented
before him as they contended that
even from the disciplinary hearing stage they said they could not ask
for airtime vouchers in
exchange for overtime as the allocation of
overtime is the duty and responsibility of the Production Manager.
[17]
They also submit that the arbitrator failed to take into account the
credibility
of the witnesses that presented evidence on behalf of the
First Respondent.
[18]
In
Herholt
,
the SCA,
[3]
sent the following
warning regarding review applications—
“
. . . Material
errors of fact, as well as the weight and relevance to be attached to
particular facts, are not in and of themselves
sufficient for an
award to be set aside, but are only of any consequence if their
effect is to render the outcome unreasonable…”
[19]
In the matter of
CUSA
v Tao Ying Metal Industries &Others
,
[4]
the Constitutional Court held that an arbitrator in order to perform
their duties effectively,
“…
Consistent
with the objectives of the LRA, commissioners are required to “deal
with the substantial merits of the dispute
with the minimum of legal
formalities.” This requires commissioners to deal with the
substance of a dispute between the parties.
They
must cut through all the claims and counter-claims and reach for the
real dispute between the parties. In order to perform
this task
effectively
,
commissioners must be allowed a significant measure of latitude in
the performance of their functions. Thus the LRA permits
commissioners
to “conduct the arbitration in a manner that the
commissioner considers appropriate”. But in doing so,
commissioners
must be guided by at least three considerations. The
first is that they must resolve the real dispute between the parties.
Second,
they must do so expeditiously. And, in resolving the labour
dispute, they must act fairly to all the parties as the LRA enjoins
them to do”
[5]
[20] In
the
House
Of Flowers and Others v Radebe and Others
the LAC
[6]
held thus,
"[17]
The Commissioner had two mutually destructive versions before her,
and the only issue she was required to decide on was
whether or not
the employees discharged the onus to her satisfaction that they were
dismissed on 11 November 2009.
In
deciding the issue, the commissioner had to weigh up the evidence,
apply the probability test and then if need be to determine
the
credibility of the witnesses
.
The commissioner did do this. Having regard to the evidence, it
cannot be said that the decision to accept one version over another
is tainted with a failure to consider all the material evidence. Nor
is her decision in this regard open to serious criticisms.
I fail to
see any irregularity let alone a gross irregularity committed by the
commissioner
[7]
And
“
[18]
The second complaint is linked to the first. It deals with the
material error committed by the commissioner
in finding Kelly’s
evidence incoherent.
Again, a reading of her award makes
it clear that the commissioner was simply of the view that the
employee’s version was
more probable than that of the appellant
and again based on the evidence before her this is a reasonable view
to hold
. There is no explanation as to why Kelly
required them to complete the work for 12 November on 11 November nor
was it challenged
that she did not tell them that all of them could
be easily replaced. Furthermore, by her own admission, the work she
had to execute
in the weekend could be done (at an inconvenience)
without the employees.
[21]
As I have indicated above that errors of facts are not themselves
grounds for review and setting
aside of an arbitration award, what is
required is that one has to take into account the totality of the
evidence before an arbitrator.
In this matter, the Third Respondent
was required to determine as to whether the applicants demanded
favours from the employees
in question, in exchange for services (
inter alia overtime) to be granted to them and/or rendered.
[22]
I have perused the arbitration award and the transcribed records of
the same arbitration, clearly,
there was evidence that was presented
before the Third Respondent that sometimes the applicants, as
Supervisors, will have an input
as to who will work overtime as per
Mr Meyer's summarised evidence in paragraph 8 above. Even in the
founding affidavit, the applicants
correctly summarise the evidence
of Mr Meyer, which shows that they had influence in certain
circumstances, as they say:
“
If they is
overtime in your department you are guaranteed to work overtime,
unless you are unavailable that weekend.
"Further,
where your department is short of workers for overtime, the
supervisor
can make recommendations to the production manager
would make a final
decision
based on the skill and experience of work
."
[23]
In paragraph 38 of the award, the arbitrator concluded based on the
evidence as mentioned earlier
where he said both Messrs Madito and
Khumalo believed that both applicants were in a position of influence
regarding the issue
of overtime. Based on the foregoing, the grounds
of review that the Third Respondent committed reviewable irregularity
in respect
of his findings cannot succeed, and he cannot be said to
have failed to apply his mind to the facts before him. I conclude
that
the Third Respondent decided the issue that was before him.
[24]
Subsequent to concluding that the applicants had influence especially
in respect of overtime,
as they conceded during the arbitration, the
Third Respondent proceeded to decide as to whether the applicants
committed the misconduct.
The arbitrator summarised the evidence that
was presented before him, applied the probability test and concluded
that he prefers
the version of the First Respondent as compared to
the Applicants’ version.
[25]
As I had indicated that I looked at the evidence presented before the
Third Respondent, if one
were to look at the notes of the meeting, in
paragraph 12 above , one might say that the Third Respondent
committed irregularity.
However, it is important to remember that
what is required is the totality of evidence that was presented
before the Third Respondent.
If it is found that the outcome is
unreasonable, then the award would be set aside.
[26]
In this matter, I have taken into account the totality of the
evidence presented before the Third
Respondent specifically the
viva
voca
evidence of the witnesses and the notes of the meeting, I
conclude that they point to one direction, that indeed the applicants
did demand favours from their subordinates. As to whether or not the
subordinates believed that the applicants had influence or
not could
be a deciding factor as charge three clearly shows that the
charges relate to misrepresentations made to the employees.
[27]
As stated in the
House of Flowers
authority, credibility will
only been relevant if need be. In
casu
, I do not think the
Third Respondent needed to move to the credibility enquiry as there
was enough evidence relating to the charges
that were levelled
against the applicants.
Order
[28] Based
on the above, the following order is made:
1.
Condonation for the late delivery of the review application is
granted.
2.
The review application is dismissed.
3.
No order as to the costs.
_____________________
S
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: Mr MA Myambo
Instructed
by: DE SWART VOGEL MYAMBO ATTORNEYS.
For
the Respondent: Adv E Tolmay
Instructed
by: WEBBER WENTZEL ATTORNEYS.
[1]
CUSA v Tao Ying Metal Industries and Others2009 (2) SA 204 (CC) at
para 65.
[2]
Court emphasis.
[3]
Para 5.
[4]
Above fn 2.
[5]
Own emphasis.
[6]
(JA53/2012) [2013] ZALCJHB 337
[7]
— own emphasis.