REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN JOHANNESBURG
CASE NO J4783/2000
In the matter between:
ANGLO OPERATIONS LIMITED
Applicant
and
INDEPENDENT MEDIATION SERVICE
OF SOUTH AFRICA First Respondent
S MATIME N.O. Second
Respondent
M NHLANHLA Third
Respondent
NATIONAL UNION OF MINEWORKERS Fourth
Respondent
ON BEHALF OF APPLICANT MR M J VAN AS
ON BEHALF OF RESPONDENT MS N THSABALA
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
J U D G M E N T
GERING AJ
[1] This is an application in terms of section 33(1)(b) of the
Arbitration Act, 42 of 1965, (the Arbitration Act) as read with
section 157 (3) of the Labour Relations Act, 66 of 1995 ("the
LRA") in which the applicant seeks to review and set aside the
arbitration award handed down by the second respondent
("the arbitrator") on 31 August 2000.
[2] The third and fourth respondents have opposed the relief
sought by the applicant. The first and second respondents
abide by the decision of this Court.
[3] There is a paginated bundle of papers, and references to it will
be denoted by the capital letter B followed by the relevant
page number.
[4] The award which the applicant seeks to set aside is dated
31 August 2000 and appears on B24/25. The issue in dispute
was whether the dismissal of third respondent (the employee)
was substantively fair.
[5] The ground on which the applicant seeks to review and set
aside the award is that the arbitrator exceeded his powers as
contemplated in section 33 of the Arbitration Act.
[6] Prior to the arbitration, on 23 June 1992, the applicant and the
fourth respondent (the union) entered into a collective
agreement in terms of which the parties agreed to refer
individual dismissal disputes for misconduct to private
conciliation and arbitration.
[7] In the collective agreement, dismissal for misconduct is
defined as follows: "Dismissal for misconduct shall mean
dismissal consequent on individual misconduct other than any
offence or breach relating to participation in any action of a
collective nature, including any complete or partial refusal or
failure to work or to continue to work, or any retardation of the
progress of work or any obstruction of work". (See B15)
[8] On 30 June 2000 the applicant completed a request for
arbitration in terms of the collective agreement. (See B22)
[9] This request for arbitration was signed on behalf of the union
and on behalf of the employer. It states on B22:
"Nature of Dispute: Unfair Dismissal (Unprotected Industrial
Action/Absenteeism)"
[10] On B72 there appears an arbitration agreement on which is
stated:
"Nature of Offence: Unprotected Industrial
Action/Absenteeism"
and under the heading of "Substantive Fairness" the issues in
dispute are set out as follows:
"Whether at the time of the incident, the complainant had the
authority to change the grievance shifts; and whether the
grievant was briefed about shift changes."
This is likewise signed by the union representative and the
company representative.
[11] It is clear from the evidence as set out in the award (B24) that
the employee's supervisor
"lodged a complaint against him for failing to report for duty
on 20-22 March 2000".
On B25 the arbitrator set out as follows:
"From the facts of this case, more especially the evidence of
John Mokgoto, leaves no doubt in my mind that John and the
grievant were not briefed about the new shifts. I accordingly
come to a conclusion that the grievant did not report for duty
on 22 March 2000 due to miscommunication and the absence
of transport from the hostel to work. ... From the
aforementioned, there is no reason in logic or fact to support
the conclusion that the employee participated in an
unprotected industrial action. I find the dismissal to be
substantively unfair."
[12] It is apparent from the definition set out above and contained
on B15, that what is excluded from the ambit of the dismissal
dispute agreement is the referral of a dismissal dispute to
private conciliation and arbitration if the misconduct relates
"to participation in any action of a collective nature".
[13] In order to decide whether the arbitrator had power to
arbitrate on the dispute between the parties, it is necessary to
determine the true nature of the actual or real dispute
between the parties. See NUMSA v Driveline Technologies
(Pty) Ltd [2000] 1 BLLR [LAC] reported also in 2000(4) SA 645,
as well as the case of Zeuna-Starker Bop (Pty) Ltd v NUIMSA
[1998] 11 BLLR 1110 [LAC]. In the Driveline case at para.62
thereof ZONDO AJP (as he then was) stated:
"What the parties are bound by is the correct description of
the real dispute that was referred to conciliation."
and he stated in the same paragraph that he disagreed with
statements to the effect that a party who wants to take a
dismissal dispute further is bound by the conciliating
commissioner's description of the dispute in the certificate of
outcome. He said that:
"The position is, as the Labour Court correctly pointed out in
that case, that a party cannot change the nature of the
dispute."
[14] It may be mentioned that whereas section 213 of the LRA
defines a dispute as including an alleged dispute, there is no
similar definition in the collective agreement. What one has to
deal with is the actual or real dispute, not an alleged dispute.
Also in the Driveline case it is pointed out at para.48 that a
dispute may be made up of demands and counter-demands.
[15] Having regard to what is set out above, the real dispute
referred to arbitration was individual misconduct, namely
absenteeism between 20 and 22 March and the issues were
whether the employee had been briefed about the shift
changes. A perusal of the evidence as contained in the award
indicates that there was absolutely no evidence of any "action
of a collective nature" nor of any "participation" by the
employee in any such "collective action".
[16] Accordingly, in my judgment the dispute that was referred to
arbitration in terms of the request for arbitration dated 30 June
and the arbitration agreement dated 30 June, in both instances
signed by and on behalf of the parties and was the subject of
the award dated 31 August 2000, was one of individual
misconduct not relating to participation in action of a collective
nature, and was within the powers of the arbitrator and did not
fall outside the definition of dismissal as set out in the
collective agreement.
[17] Accordingly, the application for setting aside the arbitration
award is dismissed with costs.
[*Sgd] GERING AJ
ACTING JUDGE, LABOUR COURT
31/7/02