Assmang (PROPRIETARY) Limited T/A Beeshoek Mine v Commission for Conciliation Mediation and Arbitration and Others (JR 365/2018) [2022] ZALCJHB 135 (8 June 2022)

The Labour Court of South Africa, Johannesburg

Not Reportable

Case No: JR 365/2018

In the matter between:

ASSMANG (PROPRIETARY) LIMITED T/A

BEESHOEK MINE

Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

First Respondent

DAVID PIETERSEN N.O.

Second Respondent

THAPELO MOEKETSI

Third Respondent

FINANCIAL SECTOR & ALLIED WORKERS

UNION OF SOUTH AFRICA

Fourth Respondent

Heard: 7 June 2022

Delivered: 8 June 2022

(In view of the measures implemented as a result of the Covid 19 pandemic, this judgement was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed to be 8 June 2022.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant applies to review and set aside an arbitration award issued by the second respondent (the arbitrator) on 2 February 2018. In his award, the arbitrator found that the third respondent (the employee) had been unfairly dismissed and ordered his reinstatement with retrospective effect.

[2] The factual background is recorded in the award under review. In brief terms, the employee was employed during 2014 as a front-end loader operator. On 1 February 2017, the applicants mining superintendent issued an instruction by email recalling what is referred to as a ‘Smartcap’ procedure which allowed for employees to be transported, by taxi, to the tea room for a 15-minute break when they had reached the level 3+ fatigue grade on the Smartcap system. The amended instruction recorded that employees would no longer be transported to the tea room for the tea break. Some employees (including the employee) where not satisfied with the instruction and a meeting was held with the mining superintendent on 2 February 2017. At this meeting, at which the employee was present, the mining superintendent explained the purpose of the instruction and in response, one of the employees (Mosegeleng) told him that he would defy the instruction. The next day, 3 February 2017, the head of Department arranged a meeting to further discuss the matter. At this meeting, the head of Department asked Mosegeleng whether he had made the statement regarding non-adherence to the new instruction. Mosegeleng denied that he had made such a statement. The head of Department then asked the employee whether Mosegeleng had made the statement, to which the employee responded that he had not. On 21 February, the employee deposed an affidavit in which he stated that Mosegeleng had not made any statement regarding a refusal to adhere to the new instruction.

[3] After a subsequent investigation, the employee was charged with dishonesty. After a hearing held on 17 May 2017, the employee was dismissed. The matter was ultimately referred to arbitration.

[4] At the arbitration hearing, the mining superintendent gave evidence to the effect that he had issued the instructions regarding the amendment to the Smartcap procedure and that he had held a meeting, at which the employee was present, to explain the reasons for the change in procedure. He testified that the meeting became increasingly confrontational, and that Mosegeleng had announced that he would defy the instruction and return to the tea room. At a meeting held the next day with the head of Department, the mining superintendent testified that Mosegeleng had denied making the problematic statement, as had the employee denied that Mosegeleng had made the statement.

[5] The employee’s shift supervisor was called as a witness and testified that Mosegeleng had made the statement at the meeting on 2 February 2017. The applicants third witness, Douglas, testified that he was present at the meeting with the head of Department and that the employee and Mosegeleng had testified that Mosegelng had not made the statement.

[6] The employee testified on his own behalf and stated that Mosegeleng had not made the statement. Mosegeleng gave evidence that the superintendent had lied to the head of Department about him having made the statement but admitted that he failed a polygraph test during the course of the investigation into the incident.

[7] In his award, the arbitrator recorded that he was ‘puzzled’ about why the dispute came about, since the meeting with the head of Department was to resolve the issue of the response to the instruction, rather than the commencement of any disciplinary proceedings. The arbitrator proceeded to find that on a balance of probabilities, the statement by Mosegeleng might have been made and that the employee was not being ‘truthful in that regard’. The arbitrator then proceeded to consider whether the employees lie amounted to dishonesty and found that the employee ‘was not honest towards the HOD during the meeting held on 3 February 2017’.

[8] The arbitrator then considered whether a dismissal was an appropriate sanction. He concluded that it was not, on the basis that the applicant had misrepresented itself when it made employees believe that no disciplinary action would follow the meeting with the head of Department on 3 February 2017, that the decision to charge the employee of the misconduct was ‘based on the emotion of the superintendent and not on the facts’; that the instruction given by the superintendent was never defied and was implemented as intended; that the applicant could show no prejudice or damage suffered consequent on the lie told by the employee; that the

employee did not make the statement of threatening the respondent and intended only to protect his colleague who also did not cause the applicant any harm. Finally, the arbitrator took into account that the incident had taken place on 3 February 2017 while the

disciplinary hearing was held on 17 May 2017 in circumstances where the employee remained in the applicant’s employ between those dates. On this basis, the arbitrator held that he was not persuaded that the trust relationship between the applicant and the employee had broken down.

[9] For these reasons, the arbitrator ordered the applicant’s reinstatement but on account of the seriousness of the misconduct that he had found to exist, the award of reinstatement was made retrospective only from 1 January 2018, a month before the date of the award and some seven months after the date of dismissal.

[10] The applicant submits that the arbitrator’s award is reviewable because he failed to comply with the relevant guidelines concerning the enquiry into the appropriateness of dismissal as a sanction and that his reliance on the factors that he did consider was misplaced. Secondly, the applicant contends that to the extent that the arbitrator’s conclusion is based on his finding that the applicant misrepresented to employees that no disciplinary action would follow the meeting with the head of Department on 3 February 2017, that no such evidence was placed before the arbitrator to justify this finding. On the contrary, the applicant contends that it is evident from the superintendent’s testimony that the reason for the meeting with the head of Department was to find a solution to the concerns raised by the employees at the meeting of the day before. Further, none of the employee’s witnesses, nor the employee himself, testified that they were under any misrepresentation that no disciplinary action would follow the meeting held on 3 February 2017. Thirdly, the applicant contends that to the extent that the arbitrator found that the employee was charged because the mining superintendent felt undermined, there was no evidence before the arbitrator to substantiate this conclusion. In particular, there was no evidence that the reason for the charge was that the superintendent felt undermined. Finally, the applicant contends that the arbitrator, having found that the employee had been dishonest, failed to consider that the employee had exhibited no remorse for his dishonesty and that his dishonest conduct continued through to the arbitration hearing itself.

[11] The threshold for review is deliberately set high. This court may intervene if and only if the arbitrator commits a reviewable irregularity that has the consequence that the award under review is so unreasonable that no reasonable decision-maker could reach the decision to which the arbitrator came on the basis of the available evidence. In Booi v Amathole Municipality (2022) 43 ILJ 91 (CC), the Constitutional Court recently remarked that the LRA deliberately provides for the mechanism of review, as opposed to an appeal, for arbitration awards made in respect of labour disputes. The clear intention, noted the court, was to prevent a labour dispute resolution procedures from becoming costly and time-consuming. Arbitration awards are intended to be final and binding and a review court must necessarily respect this choice and refrain from readily treating reviews as appeals. In respect

particularly of applications to review arbitrator’s decisions on the appropriateness of dismissal as a sanction, the applicable

principles are usefully summarised in chapter 19 of the seminal work by Myburgh and Bosch Reviews in the Labour Courts (Lexis Nexis 2016). In essence, the determination of the fairness of a dismissal involves the exercise of a value judgement (something about which reasonable people may readily defer) and requires a commissioner to decide whether what the employee did was fair, after having taken into account the totality of the circumstances. As the author puts it:

In short, while commissioners should not defer to the sanction imposed by employers, Sidumo requires them to consider all relevant factors and then balance them up in the process of deciding whether the employer’s decision on sanction was fair. Commissioners cannot simply decide on sanction afresh on the basis of what they would have done if they had been in the employer’s shoes.

The primary task of the commissioner is thus to take into account the totality of the circumstances. This requires at least a consideration

of the fact that is recorded in the majority judgment by the Constitutional Court in Sidumo & Another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC), the reason the employer applied the sanction of dismissal, the basis of the employee’s challenge to the dismissal, the harm caused by the employee’s conduct, with additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and the length and nature of the employee’s service record. Integral to the exercise of the required value judgement is a balancing of interests and a determination of where the balance finally falls.

[12] In the present instance, the arbitrator did not have regard to the any of the factors established by the Sidumo judgment, but confined his determination on the appropriateness of dismissal as a sanction to the circumstances surrounding the

employee’s dismissal. The reasons on which the arbitrator relied represent factual findings made on the basis of the evidence

before him, and in particular, a finding that the applicant was guilty of misrepresentation. That finding cannot be sustained by the evidence that served before the arbitrator.

[13] That misdirection aside, counsel for the applicant relied on Timothy v Nampak (2010) 31 ILJ 1844 (LAC) to submit that in the case of dishonesty or similar impropriety, where there is no recognition by the employee of any wrongdoing, no remorse and no recognition of misconduct but only a blatant and clearly dishonest denial, progressive discipline can ordinarily not be justified. In the present instance, the employee persisted with his false version of events through his disciplinary

enquiry and the arbitration hearing itself.

[14] In the circumstances, I am not satisfied that the arbitrator properly applied his mind to the factors identified in the Sidumo judgment. Put another way, the arbitrator failed to undertake the required balancing of interests and the exercise of a considered

value judgement in relation to the appropriate sanction for the misconduct that he found to exist. The arbitration award thus stands

to be reviewed and set aside.

[15] In relation to remedy, the value judgement required to determine the fairness of any dismissal is primarily one that must be exercised by a commissioner. I intend therefore to remit the matter for a determination of a fair sanction, on the basis of the record as it stands.

[16] Finally, in relation to costs, for the purposes of section 162 of the LRA, the requirements of the law and fairness are best satisfied by each party bearing its own costs.

I make the following order:

1. The arbitration award issued by the second respondent on 2 February 2018 is reviewed and set aside.

2. The matter is remitted to the first respondent for a determination, on the basis of any further submissions by the parties that are deemed necessary or appropriate, by a commissioner other than the second respondent, of the appropriateness of dismissal as a sanction for the misconduct found to have been committed by the third respondent.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

M van As

Instructed by:

Cliffe Dekker Hofmeyer Inc

For the respondents: N Moyo

Instructed by:

Roy Ramdaw Inc.