Echo Prestress (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR1129/20) [2024] ZALCJHB 303 (15 August 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR1129/20

In the matter between:

ECHO PRESTRESS (PTY) LTD Applicant and COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION First Respondent COMMISSIONER MOHALE LEKALAKALA N.O Second Respondent ASSOCIATION OF MINEWORKERS AND CONSTRUCTION UNION Third Respondent PETER SELOANE Fourth Respondent DAVID LANGA Fifth Respondent

Heard: 14 August 2024

Delivered: 15 August 2024

JUDGMENT

MABASO, AJ

Introduction:

[1] The Applicant has approached this Court seeking an order to review and set aside an arbitration award issued by the Arbitrator. In this arbitration award, the Arbitrator ruled that the dismissal was substantively unfair and ordered reinstatement. The Respondents

(collectively referred hereinafter as “the Individual Employees”), except for the CCMA and the Arbitrator, opposed

this application.

Relevant Background and part of the records:

[2] Both Individual Employees were employed by the Applicant until they were dismissed following guilty findings on the allegations that they committed the offences of:

(a) breach of contracts, in that on 17 August 2019 they failed to honour their contractual obligation of working overtime when instructed by management to do so,

(b) as a result, they acted in an insubordinate manner as there was direct instruction from their supervisors to work overtime,

(c) breach of the obligation to act in good faith in that they refuse to write statements as part of a disciplinary investigation, despite being ordered to do so.

(d) As a result, this amounted to a breach of trust.

[3] Following the dismissals, their trade union (“AMCU”) assisted them in referring an unfair dismissal dispute to the CCMA. The latter subsequently appointed an Arbitrator to arbitrate the dispute. At the commencement stage, in narrowing down the issues, through the pre-arb minutes, both disputant parties agreed inter alia (i) that indeed the Individual Employees did not arrive at work on 17 August 2019, (ii) that prior to this omission, both Individual Employees used to work overtime on weekends, (iv) as a result of their absence, the management of the Applicant communicated with them, through AMCU, on 16 August 2019 advising of the potential consequences should employees not attend work on 17 August 2019.

[4] It was common cause, before the Arbitrator, by way of oral evidence that one Individual Employee (“Seloane”) had joined the Applicant on 23 March 2016 by way of a contract of employment which inter alia contained the following clauses:

“ in the event of the Employer not being able to work overtime for any reason [he] must inform their Supervisor/manager as soon as possible. Overtime is a condition of employment, and [Seloane] undertakes to work the statutory prescribed maximum overtime…”

And

“That in the event that his employment contract, the Employee’s rules and regulations and procedures are silent on any specific point then the relevant sections of [BCEA] or the provisions of the relevant Council’s main collective agreement will apply”

It was common cause that the other Individual Employee (Langa) joined the Applicant 08 April 2014. The dates of when the Individual

Employees joined the Applicant are important herein, considering what is being said hereinafter about the basis of the Arbitrator’s

conclusion.

[5] It was further common cause that, on 9 April 2017, both the Individual Employees and the Applicant entered into “a Mutual Agreement” which contained an overtime clause. The date of 09 April 2017 is more than three months after both Individual Employees had joined the Applicant. The specific clause of this agreement reads as follows: “The employee specifically acknowledges that the employer may require the employee to work overtime at a very short notice, including Saturdays”.

[6] During cross-examination by the trade union official, one of the Applicant’s witnesses was asked whether the Applicant was aware of the provisions of section 10 of the Basic Conditions of Employment Act[1] (“BCEA”) which partly reads thus: an employer may not require or permit an employee to work overtime except in accordance with an agreement, which “concluded … with an employee when the employee commences employment or during the first three months of employment,

lapses after one year”. It is prudent to indicate that at no stage was it put to any of the Applicant's witnesses that the

Individual Employees were raising this as their defense.

[7] After the Applicant had closed its case, only Seloane testified, and it is not surprising that he did not raise section 10 of the BCEA as his defence, considering what this Court said in the preceding paragraph. During the examination-in-chief of Seloane, the following came out: he explained why he did not attend work on 17 August 2019, as he said he had an outstanding assignment from UNISA. When asked if he had told management about it, his preferred answer was that he had not because they did not want to listen to him. Neither the Arbitrator nor any of the representatives sought clarity regarding this answer to ascertain exactly who within the management was not willing to listen to him. He also gives his answers relating to the charge of the Breach of the employee’s obligation.

[8] It is important to indicate that the arbitration records do not seem to indicate that Seloane was also giving these explanations on behalf of Langa, considering that Langa did not testify; this is relevant to the conclusion this Court reaches in relation to the Order below.

Analysis and outcome:

[9] An Arbitrator commits a reviewable irregularity if, at the end of the day, his conclusion is based on evidence that was not before him, meaning it cannot be supported by such evidence; put differently, an arbitrator commits irregularity if, for example, he misunderstands the law or facts before him, but such does not automatically result in the reviewability of the arbitration award which is the subject of the proceedings, what is required is that it must be shown that the outcome thereof is unreasonable. cf Nyathikazi v Public Health and Social Development Sectoral Bargaining Council and others.[2]

[10] In its grounds of review, the Applicant contends that the Arbitrator did not take into cognizance the pre-arb minutes concluded by the parties and did not take into account that the Mutual Agreement was signed on 9 April 2017, which is the date post three months either of Individual Employees had been employed by it; it further argued that the Arbitrator’s interpretation of section 10 of the BCEA is wrong and that he was not able to deal with each charge that resulted in the dismissal of the Individual Employees. Consequently, the Arbitrator committed a reviewable irregularity. This Court deals with these grounds hereafter without any sequence since others might be necessary to consider and determine, whilst others might be rendered moot because findings concerning the others deal with them.

[11] In paragraph 18 of the arbitration award, the Arbitrator confirms that the Mutual Agreement signed by the parties to the dispute and dated 9 April 2017 was before him. This indicated that the Arbitrator did identify parts of the issues that were before him, put differently, where the dispute emanated from, which resulted in the dismissal of the Individual Employees.

[12] The next question is whether the Arbitrator misconceived the inquiry and /or did not deal with all the charges that resulted in the dismissal of the Individual Employees, considering that there were four charges in total.

[13] In respect of section 10(5) read with ss (1) of the BCEA, which the Arbitrator solely relied on in his conclusion that the dismissal was substantively unfair, it partly reads as follows:

“(1) Subject to this Chapter, an employer may not require or permit an employee to work-

(a) overtime except in accordance with an agreement;

(b) ...

(1A) An agreement in terms of subsection (1) may not require or permit an employee to work more than 12 hours on any day.

(2) …

(3) …

(4) …

(5) An agreement concluded in terms of subsection (1) with an employee when the employee commences employment, or during the first

three months of employment, lapses after one year.”

[14] Now in casu, the parties agreed inter alia that the Mutual Agreement relating to overtime was entered into in April 2017, which is a date long more than three months after the Individual Employees commenced employment with the Applicant, considering that Langa joined the Applicant in 2014 and Seloane on in March 2016.

[15] During the argument, Counsel for the Individual Employees argued that this Court should follow Mkhonto’s judgment[3] by the learned Nkutha-Nkontwana J (as then she was). The Applicant’s Counsel counter argument was that the Mkhonto’s facts and in casu are not the same. This Court agrees with the latter argument in that, after reading the Mkhonto, the issue in that matter relating to this point was that it was in dispute that there was an overtime agreement.[4] And the learned Judge, in conclusion, said, “When the instruction was issued…, the overtime clause in their contracts of employment had already lapsed as contemplated in s 10(5) of the BCEA…Instructively, there is no evidence of record that supports the commissioner’s finding that there was an implied or tacit agreement to work.” Whereas in casu, it was common cause that both Individual Employees had an agreement relating to overtime with the Applicant and the dates of signing and commencement were not in dispute.

[16] Consequently, this Court agrees with the Applicant’s two-fold argument that the Arbitrator did not take into account the pre-arb minutes and misapplied the law that he decided to follow and interpret, because the provision of section 10(1) read with (5) of the BCEA applies only to an agreement concluded by both an employee and an employer, and calculating its lapsing provision starts from “commences employment” or “during the first three months of

employment”. Sequentially, this prevented the Applicant from having a fair trial of issues which resulted in the unreasonable

finding that the Arbitrator reached.

[17] As the Arbitrator relied on this point alone, the interpretation of section 10 of the BCEA in concluding that the dismissal was

substantively unfair makes the arbitration award reviewable. The result is that there is no need even for this Court to consider

whether the Arbitrator was tasked with making a reinstatement order, particularly since it was one of the points that the Applicant

advanced in impugning the arbitration award. The ruling in that regard was clearly based on an incorrect interpretation of the law. In summary, the Arbitrator misunderstood the nature of the dispute and did not deal with the substantial merits of the dispute because further charges are not being discussed in the arbitration award.

[18] This Court must briefly examine the evidence before the Arbitrator to determine whether it is in a position to substitute the arbitration

award or order that the matter be remitted back to the CCMA for a hearing de novo before another arbitrator.

[19] There were three main charges that resulted in the dismissal of the Individual Employees; for the sake of brevity, it is necessary to reproduce these: (a) breach of contract (charge 1), (b) gross insubordination (charge 2), (c) breach of employee obligation (charge 3). Records before this Court, in respect of charge 1, this Court is not in a position to determine this because there is no indication in respect of the case of Langa, for example, as to why he could not attend work on 17 August 2019. This automatically moves to the other charges as they are interrelated.

[20] Furthermore, it is not clear before this Court whether the Arbitrator explained to the parties, as the officials represented them, the consequences of failure to put versions to each other. The arbitration records show that more still needs to be done, so if this Court were to substitute the arbitration award, it might prejudice either of the parties, which would be a miscarriage of justice, specifically relating to the matter of Langa. Furthermore, this Court in relation to the issue of Langa is not in the position to decide and substitute the arbitration award without him testifying, despite it being apparent that the witnesses of the Applicant said less about him during the arbitration, because parties agreed through the pre-arb minutes in relation to him that he did not arrive at work on 17 August 2019, he signed the Mutual Agreement which contained the overtime clause which “was signed by [him] in April 2017, was signed more than 3 months after any of [the Individual Employees] were hired by [the Applicant]”.

[21] The only option is to remit the matter to the CCMA for a de novo hearing. This is also supported by the fact that, in the pre-arb minutes, parties agreed that one of the issues that had to be decided was the issue of inconsistency and appropriateness of sanction, as these two would only be applicable if a guilty finding had been reached. Furthermore, the Applicant’s legal representative said, indeed, this was a viable approach. Although Counsel for the Individual Employees argued otherwise, this Court, based on what is presented above, concludes that it is not in the position to do what the latter calls for.

[22] Consequently, the following order is made:

Order:

1. The arbitration award issued by Commissioner Mohale Lekalakala on 17 March 2020, and varied 04 October 2020, under case

number GAEK 15708-19 is reviewed and set aside.

2. The dismissal dispute is remitted to the CCMA for a hearing de novo before any commissioner other than the Second Respondent.

3. The CCMA must set the matter down for arbitration within 30 working days upon becoming aware of this judgment.

4. Each party is to bear their own costs in both applications.

Sandile Mabaso

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Mr Maeso Instructed by: Shepstone and Wylie Attorneys For the Respondents: Adv Cook Instructed by: LDA Incorporated Attorneys

[1] Act 75 of 1997, as amended.

[2] [2021] 8 BLLR 778; [2021] ZALAC 11 (LAC) at para 24.

[3] Association of Mineworkers & Construction Union on Behalf of Mkhonto & Others v Commission for Conciliation, Mediation & Arbitration & Others (2023) 44 ILJ 1046 (LC)

[4] As that Court captured the commissioner’s words thus: “…must prove that there was an agreement…”