Aveng Moolmans (PTY) Limited , a division of Aveng Africa (PTY) Limited v National Union of Metalworkers of South Africa obo Mahlangu and Another (JR 2200/2020) [2022] ZALCJHB 352 (6 December 2022)

The Labour Court Of South Africa, Johannesburg

Not Reportable

Case No: JR 2200/2020

In the matter between:

AVENG MOOLMANS (PTY) LIMTED,

A DIVISION OF AVENG AFRICA (PTY) LIMTED

Applicant

And

NATIONAL UNION OF METALWORKERS OF

First Respondent

SOUTH AFRICA OBO GODFREY MAHLANGU

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

Second Respondent

Heard: 17 November 2022

Delivered: 06 December 2022

(This judgement was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 06 December 2022.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant seeks to review and set aside an arbitration award issued by the third respondent (the arbitrator) on 19 November 2020 under case number MPEM 4746-20. In his award, the arbitrator found that Mr G Mahlangu (the employee) had been unfairly dismissed by the applicant and ordered that he be reinstated, without the payment of back pay.

[2] The facts are recorded in the award under review. The employee was engaged as a shovel operator prior to his dismissal on 23 July 2020 being found guilty of fraudulent timekeeping and the misuse of sick leave. The arbitrator appears to have concluded that the applicant was guilty of misconduct relating to his timekeeping, but that the sanction was too harsh. He says the following:

‘43. Although the applicant did not approach the commission with clean hands, it is my considered view that the dismissal is too harsh as the sanction, without following the correct process to bring the practice to an end.

44. In arriving at my decision, I have considered the applicant’s years of service with the respondent, however, although (sic). I find that the gravity of the misconduct committed, outweigh the length of service of the applicant with the same employer, and I find that the employer failed to address the practice that allowed the employees to book 10.5 hours even though they did not work for it.

45. Applicant (sic) dismissal is found to be substantially unfair…’.

[3] The applicant raises three grounds for review. The applicant contends that the arbitrator failed to deal with the mutually destructive versions that served before him, that he failed to apply the correct weight to the employee’s misconduct in coming to his decision on the appropriateness of dismissal as a sanction, and that he failed to make a finding in relation to a second act of misconduct committed by the employee on 11 July 2020.

[4] The test to be applied in review applications is clear. This court may intervene by way of review if and only if the applicant establishes that the decision to which the arbitrator came was so unreasonable that no reasonable decision-maker could come to it.

[5] In a matter such as the present, where the applicant relies on what are contended to be reviewable irregularities in the assessment of the evidence, the court must be cautious to ensure that the line between an appeal and a review is not crossed. In Gold Fields Mining SA (Pty) Ltd v CCMA [2007] ZALC 66; [2014] 1 BLLR 20 (LAC)), the Labour Appeal Court noted that a review court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each factor and then determine whether a failure by the arbitrator to deal with one or more factors amounted to a process related irregularity sufficient to set aside the award.

[6] The LAC cautioned against adopting a piecemeal approach since a review court must necessarily consider the totality of the available evidence (at paragraph 18 of the judgment). Specifically, the questions for a review court to ask are whether the arbitrator gave the parties a full opportunity to have their say in respect of the dispute, whether the arbitrator identified the issue in dispute that he or she was required to arbitrate, whether the arbitrator understood the nature of the dispute, whether he or she dealt with substantial merits of the dispute and whether the decision is one that another decision-maker could reasonably have arrived at based on the evidence (see paragraph 20). In short, when an arbitrator fails

to have regard to the material facts it is likely that he or she will arrive at a decision that is unreasonable. Similarly, where an arbitrator fails to follow proper process he or she will arrive at an unreasonable outcome. But, as the court emphasised, this is to be considered on a totality of the evidence and not on a fragmented, piecemeal analysis (at paragraph 21).

[7] To summarise: the threshold to be met by an applicant in a review application is one of reasonableness. The court is required to apply a two-stage test. The first stage is to determine the existence or otherwise of any error or irregularity on the part of the arbitrator. If the applicant is unable to establish any error or irregularity, that is the end of the enquiry. In this regard, it is not the function of a review court to engage in a nitpicking exercise; the focus is on whether the arbitrator appreciated the nature of the enquiry and forwarded the parties a fair hearing. When an error or irregularity is established, the court must proceed to the second stage of a determination of the reasonableness of the result. Put another way, the award must be sustained if, by reference to the record and regardless of any error or irregularity on the part of the arbitrator, the award is one which a reasonable decision-maker could reach.

[8] Frankly, the arbitrator’s reasoning is difficult to follow. From the extract quoted above, it would appear that the arbitrator was persuaded that the employee had committed an act of misconduct in relation to his booking 10.5 hours for time not worked. The basis of the arbitrator’s conclusion that dismissal was too harsh a sanction might be, is difficult to discern. Clearly, he concluded that the gravity of the misconduct found to have been committed outweighed the employee’s length of service, which in any event was minimal, the employee having been employed on October 2019 and dismissed on 23 July 2020. To the extent that the arbitrator appears to have considered that it was the applicant’s practice to allow employees to book 10.5 hours even though that number of hours was not worked, that appears to be a factor relevant to a consideration of the existence of misconduct, rather than the appropriateness of dismissal as a sanction.

[9] The evidence before the arbitrator was the testimony of Steenberg, who stated that the two shovel operators per shift were required to work 10.5 hours in circumstances where they recorded 10.5 hours on the clock cards as they clocked in at the commencement of the shift. If the employee did not work the full shift, the employee was required to correct his or her hours the following day. If the employee was less than 30 minutes late for his or her shift, the employee would still be entitled to claim the full shift. The employee was charged with fraudulent timekeeping and misuse of sick leave in relation to events that occurred on 10 and 11 July 2020. On 10 July 2020, the employee was late for work but claimed the full

10.5 hours in circumstances where he had arrived more than an hour late. The employee did not work on that date and his claim for 10.5 hours was not approved. The next day, on 11 July 2020, the employee booked himself 10.5 hours in circumstances where he was entitled only to book 2 hours. The employee had the opportunity the next day of recording that he had worked only two hours, but left his clock card to reflect the full 10.5 hours.

[10] Steenberg conceded that there was a grace period of 30 minutes (being that if an employee reported for work within an hour after the commencement of the shift, they would not need to reduce their hours on the timesheets), but he was adamant that the employee had arrived for his shift on 10 July 2020 outside of this grace period and was thus required to correct the hours on his timesheet. On the other hand, the employee’s testimony regarding his obligation to rectify the timesheet and in particular, whether he was required to rectify his timesheet following the events of 10 and 11 July 2020. The evidence of the applicant’s witness Mphopha was consistent with that of Steenberg to the extent that the rule was that employees were required to amend their timesheets if they had not worked the full 10.5 hour shift. However, he contended that employees could record a full shift if they arrive less than one hour late, or were granted permission to leave early. This evidence must be viewed in the context where the employee had given inconsistent testimony regarding whether he was as a matter of principle, applied to rectify the timesheet and whether he was required to do so, having regard to the events that took place on 10 and 11 July 2020. These were competing versions before the arbitrator and he was required to determine the probabilities of the parties’ respective versions regarding the nature and extent of the grace period in dispute. The arbitrator’s failure to resolve this factual dispute constituted a reviewable irregularity.

[11] Further, the arbitrator ignored the fact that the employee had been dismissed for two separate acts of misconduct. The first related to fraudulent timekeeping on 10 July, the second to 11 July 2020. The arbitrator appears only to have had regard to the evidence relating to 10 July 2020 (the incident in which the employee recorded 10.5 hours’ despite being late for work on that day). The incident of 11 July 2020 (where the employee is alleged to have left work early, after only two hours, and yet claimed the full shift of 10.5 hours) appears to have been ignored. By ignoring this the arbitrator

missed directed himself, the consequence that he failed to take into account the cumulative effect of the employee’s misconduct that ultimately led to his dismissal.

[12] The arbitrator’s finding is not reasonable, having regard to the evidence that served before him. What was central to his conclusion that dismissal was too harsh a penalty was his finding that the applicant had failed to ‘address the practice that allowed the employees to book 10.5 hours even though they did not work for it.’ What this conclusion overlooks is that it was not the practice itself that was in dispute rather than the terms on which employees were permitted to book a full shift, even though they may have worked less than the required 10.5 hours. As I have indicated, there was a clear factual dispute here which the arbitrator did not even attempt to determine. The award cannot be rescued by reference to the record. Put another way, the arbitrator’s misdirections aside, the outcome of the proceedings under review cannot be seen to be reasonable having regard to the evidence.

[13] Finally, for the purposes of section 162, the requirements of the law and fairness are best addressed by each party bearing its own costs.

Order

I make the following order:

1. The arbitration award issued by the third respondent, acting under the auspices of the second respondent under case number MPEM 4746-20 is reviewed and set aside.

2. The matter is remitted to the second respondent for an arbitration hearing before a commissioner other than the third respondent.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

V Mndebele

Instructed by:

Wilken Incorporated

For the respondent:

Union Representative