Glencore Operations South Africa (Pty) Ltd (Western Chrome Mines) v NUMSA obo Motsepe and Others (JR 1828/2019) [2022] ZALCJHB 42; (2022) 43 ILJ 2025 (LC) (11 March 2022)

THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

Not reportable

CASE NO: JR 1828/2019

In the matter between:

GLENCORE OPERATIONS SOUTH AFRICA

(PTY) LTD (WESTERN CHROME MINES)

Applicant

and

NUMSA obo KARABO PATRICIA MOTSEPE

First Respondent

COMMISSION FOR CONCLIATION, MEDIATION AND

ARBITRATION Second Respondent

MZONDI MOLAPO N.O.

Third Respondent

Date of hearing: 3 March 2022

Date of judgment: 11 March 2022 (delivered by email)

JUDGMENT

VAN NIEKERK J

Introduction

[1] The applicant seeks to review and set aside an arbitration award issued by the third respondent (the arbitrator) on 11 July 2019. In his award, the arbitrator found that the first respondent (the employee) had been unfairly dismissed, and ordered her reinstatement with retrospective effect. The arbitrator’s finding concerned only the substantive fairness of the applicant’s dismissal; her dismissal was found to be procedurally fair.

[2] Despite initial opposition to both applications, the applications to condone the late filing of the review application and the answering affidavit, parties respectively were not opposed. Good cause was established in each instance, and the applications for condonation are granted.

Factual background

[3] The material facts are recorded in detail in the award under review. For present purposes, the following brief summary is sufficient. The employee was employed by the applicant as a junior human resources business partner. She reported to Mr Omphile Molefe, the business partner HR. One of her subordinates was Ms Kagiso Makgathla, the HR clerk (senior). The applicant was dismissed on 30 November 2018 after a disciplinary hearing into alleged misconduct. The charge brought against the applicant, which assumed some significance during the present proceedings, was the following:

Gross misconduct in that around October 2018 you facilitated the change of your work schedule for various days in September 2018 without the authorisation/approval of your supervisor, in doing so, the change in work schedule generated over time for yourself which was not due to you.

[4] In brief terms, the applicant’s employees work according to an assigned work schedule. Employees clock in at the commencement of a shift, and clock out at the end of the shift. These transactions are captured on the system, which in turn is linked to the payroll system, and generate a shift for the day. Overtime is recorded when employees work hours in excess of their work schedules, subject to a leeway or tolerance time of one hour prior to the commencement of the

shift, and at the end of the shift. Work schedules cannot be changed without the prior authorisation of a supervisor. The applicant’s

time and attendance system permits a change in work schedule to be effected, with authorisation, by way of substitution. This requires a manual entry into the timekeeping system. The system also permits manual entries to record hours in circumstances where for some reason these were not automatically generated. These entries, generated by HR employees, are referred to as ‘manual clocking’, and require a consideration of the times that the employee accessed the applicant’s site and/or left the site, in order to generate a shift.

[5] The work schedule applicable to the employee was 07:30 to 16:00. On 4 September 2018, the employee was requested to attend a meeting scheduled to commence at 06:00. She clocked in at 06:30 and clocked out at 16:11. On 12 September, the employee was requested to attend a meeting scheduled to commence at 07:13. The employee clocked in at 06:41, and clocked out at 16:18. On 19 September 2018, the applicant was requested to attend a meeting scheduled to commence at 07:00. She clocked in at 06:32 and clocked out at 16:40. It is also not in dispute that at the relevant times, Molefe had not authorised any change to the applicant’s work schedule.

[6] The employee testified that she was of the view that she was entitled to be paid overtime for these days, since she had exceeded her ordinary working hours. The employee’s version is that she instructed Makgathla, her subordinate and an HR employee, to ensure that she was paid the overtime that she considered due with no specific instruction to change her work schedule. The applicant’s version is that the employee instructed Makgathla to substitute her shifts for these particular days, in other words, to change her work schedule, without the required authorisation, from 06:00 to 14:30. The substitution of the applicant’s work schedule would have had the consequence of overtime being generated on the timekeeping

system.

[7] It is not in dispute that the employee’s manager, Molefe, questioned the employee’s claim for overtime and in particular, the substitution of her work schedule. This led to the disciplinary charges brought against the employee and ultimately, her dismissal on the charge reflected above.

The award

[8] In his award, the arbitrator, after having recorded the evidence, came to the following conclusion:

75. For the purpose of category 6.1 of the disciplinary code, I’m convinced that the conduct of the applicant, namely that she only requested Kagiso [Makgathla] to do a manual clocking in order to have a overtime generated failed to constitute the meaning of unauthorised access to, use of or making of any changes to the information or darter in the respondent’s database. Kagiso’s evidence was never that the applicant gave her clocking to use, or asked her to make any changes. Her evidence was that she was asked to do a manual clocking to generate overtime on the dates she was given. It was her duty when realising that the applicants clocking as they appeared on the respondent’s database could not permit the generation of overtime to inform the applicant that even manual clocking could not achieve the expectation for overtime…

77. … In fact, her own evidence and corroboration to the applicant’s belief that she was entitled to overtime she actually stated that she found nothing wrong with the applicants claim that she was entitled to overtime. Just for the sake of completeness it has been established for the purpose of this charge under 6.1 that Kagiso had the authority to access, use and make changes of employee information on the database of the respondent. In doing so however she needed to ensure that information she was changing was accurate and if not certain to seek clarity from the relevant authority, in this case the applicant’s supervisor.

[9] In summary, the arbitrator concluded:

83. Having heard the evidence of both parties and considered the parties’ heads of argument, I find that the applicant’s request that a overtime be generated manually was based on bona fides belief that she was entitled thereto. There is no evidence from Kagiso that the applicant forced her to change the clocking. In her possession she had both the electronic clocking and those on the schedules for the three days and without approaching Omphile to seek clarity or approval if she could

proceed to make the changes, she did them of her own accord. The reason she has been placed in that position was exactly to ensure

that she did things correctly to safeguard the respondent’s resources against abuse. In this case it was her version that she believed that the applicant had a legitimate claim for overtime and it was the reason she was absolved by the respondent and not because he was vulnerable employee was helpless.

[10] The arbitrator went on to conclude that the employee’s dismissal was thus substantively unfair and found no reason why she should not be reinstated, with the back pay.

[11] The arbitrator’s reasoning appears thus to be that the categorisation of the offence set out in the disciplinary code (being unauthorised access to, use of, or changes to information/data on the employer’s database) did not align with the actual charge and/or offence because the employee had never asked Makgathla to physically perform a substitution in order to generate overtime; she had requested her to do a manual clock, to generate overtime for 4, 12 and 19 September 2018 because she had a bona fides belief that she was entitled to overtime for those days, having perform tasks outside of the hours stipulated in her work schedule. Further, Makgathla believed that the employee was entitled to overtime, it being her duty to ascertain whether the employee was entitled to overtime. Since the employee had not asked Makgathla to change her clock times after being advised by Molefe that she did not qualify for overtime, conduct could not therefore constitute the unauthorised access to, use of, or changes to information on the applicant’s data base.

Grounds for review

[12] The applicant submits that the arbitrator failed to appreciate the nature of the enquiry that he was required to undertake, and thus came to a decision to which a reasonable decision maker could not have come on the available evidence. In particular, the applicant contends that on a proper assessment of the evidence, the employee had instructed Makgathla to alter her working schedule in circumstances where she was not authorised to do so. Had the arbitrator conducted the enquiry in the proper manner, he would have come to the conclusion that the employee had committed serious misconduct and that her dismissal was substantively fair.

Legal principles

[13] This court may intervene 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. 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. The court 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). As the courts have noted, the review test sets a high threshold, one that will not often be met. (On the policy of permitting the right of review as opposed to a broader right of appeal, see Booi v Amathole District Municipality & others (2022) 43 ILJ 91 (CC) at [50]).

[14] The primary task of an arbitrator confronted by a material factual dispute is to determine the

underlying probabilities. The court must deal with mutually destructive versions by weighing the evidence tendered by the parties

and applying the probability test and if necessary, to take into account the credibility of the witnesses. It was thus incumbent on the applicant at the arbitration hearing bearing the onus as it does, to satisfy the arbitrator that its version is true and therefore acceptable, and that the vision advanced by the respondents was false or mistaken and thus fell to be rejected. The arbitrator is obliged to weigh up and consider whether probabilities fall and thus determine where the truth probably lies (see National Employers General Insurance Co v Jagers 1984 (4 SA 437 (A); Myburgh and Bosch Reviews in the Labour Courts at 262-4).

Analysis

[15] The applicant’s grounds for review are predicated on the proposition that it is more probable than not, that the employee instructed Makgathla to amend her work schedule, and thus generate overtime. This is not what the evidence discloses. When Makgathla gave evidence, she was questioned by the applicant’s representative as to the circumstances in which she came to make the changes concerned on the system. Makgathla stated when asked whether the employee had instructed her to ‘do substitution for her’ ‘No, she gave me instructions to generate overtime for her. To do manual clock ins’. The arbitrator ultimately intervened and the following exchange took place:

COMMISSIONER: But what Ms Naidoo is basically putting to you is the applicant’s version. Regardless of whether there is no other way, or there is a way, the version that she says the applicant is going to put, is that she did not ask you to use substitution to generate the overtime. What is your response on that one? You may have used a discretion, but her version is that she did not ask you to do substitution. Is it, do you agree with that or don’t you agree?

MS MAKGATHLA: Yes, I agree.

[16] Further, under cross-examination, Makgathla confirmed that Molefe was the person required to authorise any change to her work schedule. The following exchange took place:

MR MERE: If she is the one who requests you, or instructs you to do, to generate overtime for her, who will be the next person to verify what you have done, in the line of management?

MS MAKGATHLA: It should be her supervisor.

MR MERE: And who is her supervisor?

MS MAKGATHLA: It’s Omphile.

MR MERE: Did you talk to her on the day?

MS MAKGATHLA: No, I didn’t, because I assumed that Karabo, she and her supervisor had communicated about her manual clock ins that should generate overtimes.

[17] Under cross-examination, the employee maintained her version:

MS MOTSEPE: I requested Kagiso to look at the date I sent her and then I do my (indistinct) for the overtimes to generate. I admitted that I did not check my clocking history; I did not see which days out of 10 in which days I didn’t clock out.

As promptly as it was I sent it to her to do the manual clocking not instructing her to change or fix anything or manipulate anything.

There was as humbly as I rated that “I need my overtimes to be generated because I know that I came in a bit earlier on those days they were not appearing what you just to have the necessary work, investigate and then just fix it”.

For me it was a matter of if it is not fixable you just have to say “Karabo this is not fixable, you clocking of pairing, times it’s not in our dates 59 minutes 57 seconds it’s not an hour so I cannot fix it” or I… (intervention).

[18] Given the evidence that served before the arbitrator, in my view, it was not unreasonable for him to conclude that the applicant had failed to establish that the employee had facilitated a change in her work schedule without authorisation and in so doing, generated over time for herself which was not due. It should be recalled that the threshold is not one of correctness. Put another way, arbitrators are allowed to be wrong. The applicable threshold, which clearly delineates appeals from reviews, and does not contemplate intervention by this court unless the decision under review is so unreasonable so as to fall outside of the range to which a reasonable decision-maker could come on the available evidence. On the evidence, a conclusion that the employee instructed Makgathla to generate overtime to which she genuinely believed she was entitled, falls within the bounds of reasonableness. There is certainly insufficient evidence to justify the conclusion, one for which the applicant contends, that the only reasonable conclusion disclosed by the evidence is that the employee instructed Makgathla specifically to change her work schedule for the days concerned and thus, with dishonest intent, to be paid for overtime that was not due to her. The application for review thus stands to fail.

[19] Insofar as costs are concerned, the court has a broad discretion in terms of section 162 to make orders for costs according to the requirements of the law and fairness. The trade union that represented the first respondent during the course of the arbitration hearing no longer represents her; the first respondent has instructed her current attorneys of record to represent her in these proceedings. The first respondent has consequently incurred costs in order to oppose the application and in my view, the requirements of the law and fairness justify an order that will entitle her to recover at least some of those costs.

I make the following order:

1. The application is dismissed, with costs.

André van Niekerk

Judge of the Labour Court of South Africa

APPEARANCES

For the applicant: Mr D Masher, ENS Africa Inc.

For the first respondent: Ms N Majozi, DM5 Inc.