NOT REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: JR 285/01
In the matter between:
WESTERN PLATINUM LIMITED
Trading as KAREE MINE Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION First Respondent
R I McGREGOR N.O. Second Respondent
NDITHA A Third Respondent
JUDGMENT
NTSEBEZA, AJ:
[1] On the 2
nd July 2002, I gave an order reviewing and setting a side an arbitration
award dated 17 July 2001 and also remitting the matter to the CCMA for arbitration
by another commissioner. The following are the reasons for that award.
[2] I need merely state that I am of the very firm view that I delivered judgment in this
matter before I went to the United States at the en d of August 2002, to return only
in January 2003. A diligent search has not produced any judgment but I still remain
convinced that it is one of those that have been th e casualty of a heavy load in the
administration of four Labour Courts in different c ities and the peripatetic nature of
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the Judges who sometimes write their judgments from their homes in cities which
are not necessarily the ones in which they sat.
[3] Files are sent all over the country. It is a sy stem that works at the best of times, but
it is one in which some judgments are half typed by associates in one city and the
remainder in another, and in those circumstances, judgments do go astray, as I am
confident this was the case here.
[4] This review application was unopposed, and, in my experience, one of the more
problematic ones for precisely that reason, because a reviewing judge is at the
disadvantage of not having the benefit of a contrar y argument. It does not really
assist to have a deluge of authorities – not that I can ever penalise Mr Snider in
this case – when all a judge must do is to play the double role of having to search
for authorities that are oppositional and then adjudicate on the merits of “both”
views.
[5] It is clear to me that in this case there was n o opposition precisely because the
Third Respondent, Mr Nditha, is in all probability impecunious and could not afford
the funds to hire a legal representative. It is unclear whether he was a member of a
union or not, or one that was prepared to assist him.
[6] Nditha was an employee of Applicant until he wa s dismissed in October 1999, after
he was charged for having been absent without leave (Awol) on the 10
th , 16 th and
17 th September 1999. The matter came before McGregor, a n arbitrator who was
appointed by the First Respondent (the CCMA) to adj udicate in the dispute
between the Mining Company, Applicant (the employer ) and Nditha (the
employee).
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[7] McGregor found that Nditha had been absent on o nly one other occasion relevant
to an earlier occasion when he had been given a fin al warning. He held that the
employer, through the Appeal Chairperson, failed to consider an “ extended ” final
warning for misconduct “ of a less serious nature” , that led McGregor to conclude
that the sanction imposed by the employer was too h arsh for the misconduct
committed.
[8] Mr Snider’s attack on McGregor’s award is multi -fold, but right from the start he
states that the essence of the award appears to be that the sanction imposed was
too harsh for the misconduct committed. I agree wit h Mr Snider that this is so. He
further contends that McGregor appeared to adopt a kind of cavalier approach in
his dealing with the hearing. Even for a hearing, t he process seems to have been
so unorthodox and informal that the net effect was that he deprived himself of the
opportunity to fully comprehend all the evidence, including documentary evidence,
with the result that his conclusions on the facts alone suffer from this approach.
[9] I agree. Just on the finding that Nditha had be en absent on only one other
occasion, McGregor is clearly perfunctory in his an alysis of the evidence. Nditha
had faced no less than eleven allegations of absent eeism up to that point.
McGregor may have sought to focus only on the incid ent on 10 September 1999
and may not have given due regard to the documentary evidence, or even Nditha’s
own “ evidence ” such as it was. The further result is that the ar bitrator does not
make a clear finding as to whether on 10 September 1999, he finds as a fact that
Nditha was AWOL.
[10] It is in McGregor’s findings on the harshness of the sanction, or rather his criticism
thereof, that one concludes that he did in fact fin d Nditha to have been absent on
10 September 1999. Where, in view of the approach McGregor adopted, there was
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no evidence led that would address the nature of th e sanction to be imposed,
McGregor’s finding that the Appeal Chairperson never considered the relevance of
an external warning for misconduct of a “ less serious nature ” was bound to be
faulty.
[11] An order of reinstatement effectively reinstat ing the employee to a period of more
than 12 months, the maximum period for which an awa rd can be made was a
manifestation of a gross irregularity. I will not recall the cases herein, although I am
highly indebted to Mr Snider for, and appreciative of, the effort he put into the
research on the legal principles applicable in this.
[12] There is no doubt, on the evidence, that McGre gor exceeded his powers. The
simple fact of the matter is that if he had properl y considered the evidence, he
would have found that the only rational basis upon which he could make any
finding that determined whether the dismissal was f air, either substantively or
procedurally, or in both respects, was when he has applied his mind and has
satisfied himself that there is a sound and reasona ble connectivity between his
conclusion and the evidence before him. Once again Mr Snider droitfully makes
use of the authorities to make this point. I cannot fault him in his application of the
legal principles to the facts of this case.
[13] In this case, it is not a matter of an arbitra tor who comes to a different conclusion
than the one to which the court would have come to, but in circumstances where
there was no jurisdictional misdirection, in other words, where the arbitrator
correctly appreciates his mandate, acts in terms th ereof but comes to a different
conclusion, that is critical.
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[14] Here, McGregor, in my view, failed to apply hi s mind to the very crucial
jurisdictional issue on the analysis of only which he could have arrived at his
conclusion, namely, all of the oral and documentary evidence. Over and above
that, he misdirected himself as to the remedy he could award to Nditha.
[15] For all these reasons, I concluded as I ordere d and I now hand down my reasons
relevant to that order. I, however, feel that preci sely because of my criticism of
McGregor’s handling of the hearing, it cannot be sa id that I am in a position to set
aside the award once and for all. Another arbitrato r might, in considering properly
all the evidence before him or her, come to the sam e or different conclusion as
McGregor. For that reason I ordered the matter to b e referred back to the CCMA
for hearing before another commissioner.
_________________________________________
D B NTSEBEZA
Acting Judge of the Labour Court of South Africa
Date of Hearing: ………………………………….
Date of Judgment: ………………………………….