AMCU obo Ndlovu v Commission for Conciliation, Mediation And Arbitration and Others (JR 676/14) [2016] ZALCJHB 258 (20 May 2016)

THE LABOUR COURT OF SOUTH AFRICA,

JOHANNESBURG

Not Reportable

Not of interest to other judges

case no: JR 676/14

In the matter between:

AMCU obo WILSON NDLOVU.............................................................................................Applicant

And

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION..........................................................................First Respondent

DIKOTLA N.O..........................................................................................................Second Respondent

SILICON SMELTER (PTY) LTD.............................................................................Third Respondent

Heard: 12 May 2016

Delivered: 20 May 2016

Summary: The applicant seeks to review and set aside an award issued by the commissioner on the basis that he failed to weigh and asses the evidence properly. Held that the commissioner’s award falls within the bounds of reasonableness. Application dismissed with no order as to costs.

Judgment

MOSHOANA, AJ

Introduction

[1] This is an application for review and setting aside of an arbitration award in terms of which the commissioner found that the dismissal of Ndlovu was substantively fair and upheld the dismissal and dismissed the claim of unfair dismissal. The application is opposed.

Background facts

[2] On 27 September 1983, Silicon Smelter (Pty) Ltd (the employer) employed Ndlovu (the employee). At the time of his dismissal, he was

a forklift driver. In terms of the provisions of the Mine Health Safety Act that are binding on the employer, the employer is obliged

to provide and maintain a working environment that is safe and without risk to the health of the employees. On 20 November 2013, the employee was operating a fork lift when Modiba, the Executive Manager: Logistics and Shipping observed that the employee was

operating the forklift without wearing a safety belt. Modiba approached the employee from the side of the forklift and instructed

him to fasten his safety belt. According to Modiba, the employee refused to comply even after instructing him three or four times. The employee alleged that he did not see nor hear Modiba.

[3] Following the failure, Modiba completed an incident report with the safety department. The employer viewed the misconduct in a serious light. Apparently, it was expecting routine inspection from the Department of Minerals and Energy that day. There was a climate

of heightened safety awareness wherein contravention could have serious consequences. At that time, the employer had been issued with a contravention notice for failure to wear safety belt whilst operating trackless mobile machinery such as a forklift.

[4] On the same day, the employee was charged with misconduct relating to violation of safety rules and gross insubordination. After a disciplinary hearing, the employee was found guilty of the charges and dismissed on 25 November 2013. He appealed unsuccessfully. Aggrieved by his dismissal, he referred a dispute to the CCMA. The dispute was arbitrated and commissioner Dikotla issued an award finding the dismissal to be fair. 46 days after the prescribed period, the applicant launched a review application together with a condonation application.

Grounds of Review

[5] The applicant contends that the commissioner fundamentally misdirected himself and failed to properly apply mind. He committed gross irregularity in that he failed to holistically take into account the facts of the matter. It is submitted that the commissioner failed to appreciate the impact of faithful service of approximately 30 years. It is alleged that he failed to apply progressive discipline. Failure to allude to the employee’s pristine disciplinary record during the arbitration proceedings amounts to a gross irregularity. He failed to consider the issue of consistency in discipline since similar cases of Nkuna and Ntabane were brought to his attention where final written warnings were issued for failure to adhere to safety standards. Having been faced with two conflicting versions, the commissioner failed to properly weigh the probabilities. The probabilities favoured the employee; had it been properly weighed. The commissioner ignored crucial evidence that the portion of the belt that Modiba saw was the portion that lies slack when the employee has fastened a safety belt. He failed to appreciate that the misconduct was not severe enough to warrant a dismissal. In its supplementary affidavit, the applicant made reference to portions of evidence and drew conclusion without necessarily introducing new grounds. The commissioner above all reached an unreasonable conclusion.

Evaluation

[6] Having considered the grounds set out above, it immediately became apparent to me that the applicant is seeking to appeal as opposed to review. The test of review has been subjected to a number of permutations by this court and other courts. Quiet recently the

LAC in an unreported judgment of Ethekwini Municipality v Hadebe and Others,[1] had the following to say about the test:

‘[25] Therefore the upshot of both Herholdt and Goldfields is that a process failure on the part of a commissioner does not in itself

render an award unreasonable. In order for it to be unreasonable, it has to be established that such failure caused the result of the award to be unreasonable. Thus, a process failure is of no consequences if the final result of the award is, nevertheless,

capable of reasonable justification.’

[8] As a court of review, therefore, I have to ask myself this question: is the award capable of reasonable justification nonetheless even if I were to accept the failures mentioned by an applicant for review? In the present case, I am of a firm view that the award is capable of reasonable justification. It is indeed so that the commissioner was faced with two conflicting versions. The employee’s version is that he had a safety belt on. Modiba’s version is to the contrary hence he approached the employee three times to do so. When faced with conflicting versions, a commissioner has to weigh the probabilities of each version. The question then becomes did he do that? Whether he did it the same way this court would have done, it is a question that should not arise on review. At paragraph 57 and 58 of his award, he clearly identifies the conflicting versions. He commences the exercise by making a credibility finding and supports that in paragraphs 60-61 of the award. He then rejects the employee’s version that he did not see Modiba as a bare denial. He finds the employee’s version to be improbable. At paragraph 64, he finds that the probabilities suggest that the employee did not fasten his safety belt. As a reviewing court, I may not like this finding but I remind myself of the test. Such a finding is capable of reasonable justification. To suggest that the commissioner did not weigh the probabilities is not correct. He did.

[9] Regarding the sanction he tells a court of review that I have considered various factors. He finds that the employee has committed a serious misconduct. He lists those factors that he considered and still concluded that the employee’s conduct has irretrievably damaged the employment relationship. When it comes to sanction, the commissioner applies his own sense of fairness. Much as he is not supposed to defer to the employer’s decision, he cannot simply interfere with the sanction of the employer when there is no justification to do so. He is not at large to substitute the decision of the employer either.

[10] Turning to the condonation application, I am of a view that a delay of 46 days is substantial and as such an adequate and reasonable explanation is awaited. The applicant provided such an application. However, given the weak prospects of success, it will be a futile exercise to grant condonation. Accordingly, as demonstrated above, the review application lacks prospects.

[13] In conclusion, I cannot find that the award falls outside the bounds of reasonableness. This is an award a reasonable commissioner can reach. Accordingly, the application for condonation and review must fail.

[14] In the results, I make the following order:

1. The application for condonation is refused and the review application is dismissed.

2. No order as to costs.

Moshoana, AJ,

Acting Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: Advocate C Malan

Instructed by: Larry Dave Incorporated, Illovo.

For the Respondents: Mr. P Van Der Merwe of Webber Wentzel, Johannesburg

[1] (DA17/14) [2016] ZALAC 14 (10 May 2016) at para 25.