Afrox Limited v National Bargaining Council of the Chemical Industry and Others (JR1068/14) [2016] ZALCJHB 564 (31 August 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JR 1068/14

In the matter between:

AFROX LIMITED

Applicant

and

NATIONAL BARGAINING COUNCIL OF

THE CHEMICAL INDUSTRY

First Respondent

QUEEN GUNGUBELE N.O

Second Respondent

ISAAC HADEBE

Third Respondent

Heard: 31 August 2016

Delivered: 31 August 2016

Date edited and signed: 14 October 2016

EX-TEMPORE JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant seeks the review and setting aside of an arbitration award dated 1 May 2014. The application is opposed. The matter was set down for hearing on 11 August 2016, and after Mr Baloyi for the Applicant finished his argument, the Third Respondent (“Hadebe”), sought a postponement of the matter as he required legal representation.

[2] In view of Hadebe’s request, the matter was postponed specifically to 31 August 2016 to afford Hadebe an opportunity to obtain legal representation. When the matter was postponed, I directed that the legal argument presented by Mr Baloyi will be the argument for the Applicant and that Hadebe’s attorney would be afforded an opportunity to respond to the argument presented on 11 August 2016, when the matter proceeded on 31 August 2016.

[3] On 31 August 2016, when the matter was due to proceed, Hadebe was in court without legal representation. Hadebe indicated to me that his legal representative was just around the corner and still on his way to court. I once again stood the matter down until 11:30 to afford Hadebe’s legal representative the opportunity to arrive at court and to be of assistance to Hadebe.

[4] It has to be noted that there was no notice of appearance filed on behalf of any attorney representing Hadebe. Hadebe had a telephonic conversation with his legal representative, and my associate, Ms Nakale, obtained the telephone number from Hadebe so that she could also make a phone call to the representative to ascertain his whereabouts and when he can be expected at court.

She was unable to reach any person on the other side of the number provided by Hadebe.

[5] When the matter proceeded after the tea adjournment, Hadebe indicated to me that there was still a problem with his lawyer, he was however very vague in explaining to me what that problem was. Be that as it may, the matter will be decided without legal representation for Hadebe, as he was afforded more than ample opportunity to obtain such. Hadebe also indicated that he was ready to proceed on his own.

[6] The brief background to this matter is as follows: Hadebe was employed by the Applicant as a bulk distribution superintendent at the Applicant’s Naledi branch. The Naledi branch operated 24 hours and Hadebe was the manager working day shift from 08:00 to 16:00. Part of the Applicant’s operation is to refill gas into bulk tanker trucks which transport the gas to the Applicant’s clients. There were many accidents involving the trucks, which exposed the Applicant to liabilities.

[7] The Applicant investigated the cause of the accidents and found that many trucks overturned after hours and that was attributed to flouting the operating standards and non-compliance with safety standards. A number of other serious issues were identified, and as a result the Applicant decided to implement shifts for the distribution supervisors, including at the Naledi branch where Hadebe was working. The rationale was to have supervisors present at all times to ensure compliance with the relevant standards

and operating procedures.

[8] This meant that Hadebe’s reporting times would be affected and that he might be required to commence work at 17:00 in the afternoon until 02:00 in the morning, and not necessarily from 08:00 to 16:00. The shift system was to be implemented at the Naledi branch and all employees were expected to commence with working the shifts. Hadebe indicated his unwillingness to work the shifts.

[9] In February 2012 Hadebe was offered a position at the Applicant’s Roodekop plant, he was also offered a position at Vanderbijlpark that did not require the working of shifts. Hadebe indicated that he would rather be retrenched than to be transferred to Roodekop. He also proposed that he be allowed to take an early retirement. He rejected the transfer to Vanderbijlpark and he made a counterproposal that he be retrenched with full benefits.

[10] The Applicant did not accept the proposal that Hadebe be retrenched with benefits and afforded him an increase on his salary in the same position to make up for the travelling costs that were advanced as a reason for him to refuse to work shifts. He also rejected this offer as his case was that despite the increase in his income, the safety issue, which he also raised as a concern, remained. Upon rejecting all offers, Hadebe was informed that the position he held, reporting from 08:00 to 16:00, became redundant. He was consulted and once again offered another position at Roodekop, which he rejected, and on 20 August 2012 the Applicant terminated his services with effect from 30 September 2012. Subsequently, one Mr Tshabalala from Clientele Legal contacted the Applicant and indicated that he was acting on behalf of Hadebe. After exchange of correspondence and upon requests from Tshabalala, the Applicant revoked Hadebe’s retrenchment and required him to report for duty on 3 September 2012 at Roodekop. Hadebe subsequently wrote to the Applicant and indicated he did not instruct Tshabalala to request that his retrenchment be revoked and Tshabalala acted outside his mandate. Hadebe thereafter referred an unfair dismissal dispute to the CCMA seeking compensation for his unfair dismissal.

[11] The matter was arbitrated and the Second Respondent, (“Arbitrator”), found his dismissal procedurally and substantively unfair and awarded him compensation equivalent to 12 months’ remuneration. The arbitrator had to decide the procedural and substantive fairness of Hadebe’s dismissal. The parties signed a pre-trial minute prior to the commencement of the arbitration proceedings and they agreed to the contents thereof. The arbitrator recorded that the pre-trial minute was to be accepted for what it purports to be. It appears from the pre-trial minute that it was agreed between the parties that on 1 February 2012 the first consultation meeting regarding the shift pattern and the rationale for introducing a shift pattern was discussed with Hadebe.

[12] A follow-up meeting was held on 6 February 2012 and a vacancy in Roodekop was identified, the position was however filled. Another meeting was held on 21 May 2012. On 2 August 2012 the applicant offered Hadebe an alternative post at Roodekop, which he declined on 13 August 2012. After the alternative post was declined, a meeting was held on 23 August 2012.

[13] It is evident from the Applicant’s evidence adduced and the documents presented that the meeting of 21 May 2012 was a consultation meeting that dealt with the new shift pattern, and this consultation process started in January 2012, and that the final implementation of the shift system would be 30 June 2012. At a subsequent meeting on 14 June 2012, Hadebe indicated that he would want to be retrenched. A follow-up meeting was held in August 2012 and Hadebe was told that his job as a day worker was redundant. He was finally retrenched at the end of September 2012.

[14] In the arbitration award the arbitrator identified the issues to be decided as whether Hadebe’s dismissal was procedurally and substantively fair. The arbitrator included a heading in her arbitration award of “substantive fairness”, but a perusal of the paragraphs under this heading shows that she made no finding on substantive fairness. The Applicant takes issue with this and raised it as a ground for review. The Applicant’s case is that the arbitrator failed to apply her mind to the issues and the evidence before her.

[15] There is a complete absence of reference to substantive issues in respect of the fairness in the analysis of the evidence. The arbitrator had to decide the substantive fairness of Hadebe’s dismissal. She was well aware that it was an issue to be decided as she included a heading in her award providing for substantive fairness, but she dismally failed to deal with the question of substantive fairness. In the award the arbitrator held that Hadebe’s dismissal was substantively unfair but she failed to deal with the issue in view of the evidence that was adduced and glaringly absent from the award are any reasons for her finding on substantive fairness.

[16] Mr Baloyi, for the Applicant, submitted that the substantive fairness of Hadebe’s dismissal is left undetermined and the failure to decide a material issue calls for interference on review. In my view, there is merit in this ground for review. The arbitrator clearly failed to determine an issue that was material, also to the outcome and which should have had a bearing on her finding on fairness. I am of the view that the arbitrator failed to consider the evidence before her when she failed to decide this material issue.

[17] In the matter of Goldfields Mining v CCMA, the Labour Appeal Court summarised what a review court should do as follows, and I quote from the judgment:

“In short, a reviewing court must ascertain whether the arbitrator considered the principle issues before him or her, evaluated the facts presented at the hearing and came to a conclusion that is reasonable.”

[18] In casu the arbitrator failed to consider a principal issue and failed to come to a conclusion. The arbitrator only made findings on procedural

fairness. She accepted some consultation meetings to be common cause but concluded that the provisions of section 189 of the LRA were not followed. The Applicant also takes issue with this, and the Applicant’s case is that the arbitrator misconstrued the evidence before her and she conflated issues relating to two separate processes.

[19] The Applicant engaged Hadebe in respect of consultation process regarding the introduction of a shift system and the consultation process in respect of retrenchment after his 08:00 to 16:00 post became redundant. The findings made by the arbitrator are indicative of the fact that she misconstrued the evidence and she misconceived the nature of the enquiry and the issues she had to determine. For these reasons, the arbitration award stands to be reviewed and set aside.

[20] This leaves the issue of relief. The Applicant seeks for the review and setting aside of the arbitration award and seeks an order that Hadebe’s dismissal was substantively and procedurally fair, alternatively, for the matter to be remitted for a hearing de novo. In the event that the arbitration award is set aside on review, this Court has a discretion whether or not to finally determine the matter. The substantive fairness of Hadebe’s dismissal was a material issue to be decided and it is not to be decided by this Court on review, where the issue was not decided in the forum that had to decide it in the first place.

[21] This Court is therefore, despite the complete record of the arbitration proceedings, not in a position to substitute the award with a finding that Hadebe’s dismissal was substantively fair. The arbitration award is also reviewed and set aside based on the misconstruction of the facts and the evidence in respect of the issues relating to procedural fairness, which is also an issue that has to be decided de novo. This matter should be remitted to the National Bargaining Council for the Chemical Industry for a proper determination of the fairness of Hadebe’s dismissal.

[22] I have perused the record of the arbitration proceedings that has been filed in this application before Court. In my view, the record is complete and there is no need for these witnesses to testify and adduce the same evidence again de novo. The remittal of the dispute and the determination of the fairness of Hadebe’s dismissal is to be done on the existing transcribed record of the arbitration proceedings.

[23] I canvassed this issue with Mr Baloyi and he raised the concern that arbitrators may not read the record that has been filed in arbitration proceedings. There may be merit in Mr Baloyi’s comment and in the concern he raised, however in my view, this is not a matter where the record is simply there to be referred to or to be considered if the arbitrator so wishes. In this instance, the transcribed record will become the proceedings before the arbitrator.

Order

[24] In the premises, I make the following order.

1. The arbitration award issued on 1 May 2014 under case number GAJB27452/2012 is reviewed and set aside.

2. The matter is remitted to the National Bargaining Council for the Chemical Industry for a determination de novo of the procedural and substantive fairness of the Third Respondent’s dismissal.

3. The remittal and determination of the fairness of the dismissal of the Third Respondent is done on the existing record and transcript of the arbitration proceedings.

4. There is no order as to costs.

____________________

Connie Prinsloo

Judge of the Labour Court