Marula Platinum Proprietary Limited v Commission for Conciliation Mediation and Arbitration and Others (JR485/20) [2024] ZALCJHB 298 (13 August 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 485/20

In the matter between:

MARULA PLATINUM PROPRIETARY LIMITED Applicant and COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION First Respondent COMMISSIONER JEFFREY NKUNA, N.O. Second Respondent ASSOCIATION OF MINING AND CONTRACTION WORKERS UNION obo MATOME SEJAPALE Respondent

REASONS FOR ORDER

MAHOSI, J

Introduction

[1] The applicant, Marula Platinum Proprietary Limited (“Marula Platinum”), brought an application in terms of which it sought an order to review and set aside the arbitration award dated 28 January 2020 (“the award”) issued by the second respondent (“the commissioner”) under case number LP 637/19. In his award, the commissioner found that the dismissal of the third respondent’s member, Mr Matome Sejapale (“Mr Sejapale”) was substantively unfair.

[2] The third respondent, the Association of Mining and Construction Workers Union (“AMCU”), opposed the application, while the first and the second respondents filed a notice to abide by this Court’s order.

[3] The critical question was whether the commissioner committed a gross irregularity in relation to his duties in the conduct of the arbitration, misconducted himself, failed to apply himself to the material and relevant facts and consequently arrived at a finding that no reasonable decision maker could arrive at.

[4] Considering the papers and submissions presented, this Court dismissed the application with no cost order. Subsequent to it, Marula Platinum requested reasons for the order above. My reasons follow infra.

[5] Prior to outlining Marula Platinum’s case in detail and considering the issues that gave rise to its claim, it is necessary to outline the facts that form the relevant

background to the dispute between the parties.

Background

[6] Marula Platinum employed Mr Sejapale as an equipment assistant on 23 April 2013 and promoted him to a rock drill operator (“RDO”) in 2016. In May 2019, Mr Sejapale was charged with allegations of misconduct relating to insubordination and assault, intimidating and/or threatening behaviour.

[7] Following a disciplinary hearing, Mr Sejapale was found not guilty of insubordination and guilty of assault, intimidating and/or threatening behaviour. The chairperson of the disciplinary hearing issued a sanction of dismissal, which was confirmed in an internal appeal process. Resultantly, Marula Platinum dismissed Mr Sejapale. At the time of his dismissal, Mr Sejapale earned R12 673. 00 monthly.

[8] Aggrieved by Marula Platinum’s decision to dismiss its member, AMCU referred a dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”), challenging the substantive fairness of Mr Sejapale's dismissal for conciliation. The CCMA could not resolve the dispute through conciliation and issued the certificate of non-resolution on 08 November 2018. AMCU then referred the dispute to arbitration, held on 14 November 2019 and finalised on 21 January 2020.

At the arbitration proceedings

[9] Marula Platinum led its evidence through two witnesses, its crew supervisor, Mr Kanteen Cassius Letsoalo (“Mr Letsoalo”) and employee relations officer, Mr Patric Mabidu (“Mr Mabidu”).

[10] Mr Letsoalo testified that he instructed Mr Sejapale, on 13 May 2019, to fetch explosive accessories he needed to complete the day’s tasks. However, Mr Sejapale refused to comply with the instruction and responded by stating that he was not a mining assistant but an RDO. Mr Letsoalo collected the explosive accessories. Upon his return, Mr Sejapale blocked Mr Letsoalo path and demanded his clock card. Mr Letsoalo refused to hand it to him as his task for the day had yet to be completed. Mr Sejapale allegedly assaulted Mr Letsoalo, who then fell to the ground and suffered injuries on his hands. Mr Sejapale then took his clock card and clocked out of the workplace. Mr Letsoalo reported the incident to his supervisor, Mr Snyman and consulted the clinic.

[11] Mr Mabidu testified that Mr Letsoalo had reported the above incident to him on 14 May 2019. After summoning Mr Sejapale to his office, Mr Mabidu requested that he respond to the allegations made by Mr Letsoalo. Mr Sejapale prepared a written statement wherein he denied the alleged assault and confessed to pulling Letsoalo by the shirt. Mr Sejapale read the statement before his two union representatives, who advised him not to submit it. Accordingly, the union representatives advised Mr Mabidu that Mr Sejapale would no longer submit the statement.

[12] Mr Sejapale testified in support of his case and denied assaulting Mr Letsoalo. He explained that the work planned for the day could not be completed as the safety officer issued a "stop note". At this point, Mr Letsoalo issued all the employees with their clock cards except him and another co-worker, Mr Mashilo. Regarding Mr Letsoalo's injuries, Mr Sejapale had the following to say:

‘COMMISSIONER: Let me just repeat. Did the safety officer say everybody must stop working there?

INTERPRETER: Yes, sir. After realising that, after my supervisor realised that he would not find the safety belts, those other employees asked to knock off. He took out the clock cards and gave them all to the RDOs except for me and Mashilo. Then I asked for my clock card from Mr Letsoalo, but he did not respond to me, he was busy (in audible). He was pointing at the panel, pointing at me, pointing at the panel, pointing at me. Then I told Mr Mashilo, I asked Mr Mashilo that we must leave. Then we left Mr Letsoalo at his panel and proceeded upwards. When we proceeded through the passage, when we looked back, I saw Mr Letsoalo following us.

RESPONDENT REP: Let me understand, here you in the centre gully, were you now on the travelling way, where were you?

INTERPRETER: We realised that Mr Letsoalo was having, when I saw Mr Letsoalo he was having his bag and another one on the right and also a plastic of explosives, accessories. I thought maybe he had changed his mind and I asked for my clock card from him.

…

INTERPRETER: While Mr Letsoalo was trying to walk past me he missed his step and fell on the ground and he left the plastic and his bag on the floor, on the ground. That is when I asked Mr Mashilo to help the gentleman to carry his luggage. While trying to help him he left us and we thought maybe he was going to get another bag so that he can put all the items together. We realised that Mr Letoalo is already on the travel bay to, on the way to the refuge bay. When we arrived there we found that Mr Letsoalo was busy on the phone, he was talking over the phone. While he was busy on the phone he was having my clock card in his hand it seems he was talking about my company number or employee number. After, when I arrived there he gave me, I asked for my clock card and he gave it to me but Mr Mashilo’s card was found on the bench. I took my clock card and knocked off and the following day when I came back I was told that I am charged. That is all that happened on that day.’ (sic)

[13] In his analysis of evidence and arguments, the commissioner found that Marula Platinum failed to prove, on the balance of probabilities, that Mr Sejapale was guilty of assault, intimidating and/or threatening behaviour. As a result, he ordered Marula Platinum to reinstate Mr Sejapale to his position retrospectively. It was this award that was the subject of this application.

Submissions

[14] The grounds that Marula Platinum relied on were that the commissioner committed a gross irregularity in that he failed to attach the appropriate weight to Mr Mabidu’s evidence that Mr Sejapale confessed to grabbing Mr Letsoalo by his belt, determine which version was more probable based on the evidence placed before him and make a credibility finding against Mr Sejapale, whose version had allegedly changed during the arbitration. In addition, Marula Platinum challenged the commissioner’s decision to award Mr Sejapale reinstatement with full back pay in circumstances where the evidence indicated he assaulted Mr Letsoalo.

[15] AMCU defended the award on the basis that Marula Platinum failed to substantiate its grounds of review, and took the view that the commissioner's finding was not one that no reasonable decision-maker could have reached on the evidence before him.

Applicable law and analysis

[16] The arbitration awards are reviewable in terms of section 145 of the Labour Relations Act[1] (LRA), which provides that any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the CCMA or Bargaining Council may apply to the Labour Court for an order setting aside the arbitration award. Section 145(2) defines a defect to mean:

‘(a) that the commissioner –

(i) committed misconduct in relation to the duties of a commissioner as an arbitrator

(ii) committed a gross irregularity in the conduct of the arbitration proceedings,

(iii) exceeded the commissioner's powers, or

(b) that the award has been improperly obtained.’

[17] Although Marula Platinum raised several grounds for review, it mainly challenged the manner in which the commissioner dealt with the evidence presented before him and the relief he awarded to Mr Sejapale. In Head of the Department of Education v Mofokeng and others,[2] the Labour Appeal Court (“LAC”) had the following to say:

‘The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (“the SCA”) in Herholdt v Nedbank Ltd and this Court in Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome.’[3]

[18] The LAC further held as follows:

‘Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator’s conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.’[4] [Footnotes omitted]

[19] In the current matter, Marula Platinum contended that the commissioner failed to attach the appropriate weight to the evidence before him and attached inappropriate weight to irrelevant evidence. Marula Platinum's counsel argued that the only inference that could be drawn from Mr Mabidu’s evidence was that Mr Sejapale assaulted and intimidated Mr Letsoalo.

[20] Mr Letsoalo testified that, in demanding his clock card, Mr Sejapelo blocked his path, pushed him and grabbed him by his neck. As Mr Letsoalo tried to stand up, Mr Sejapale pinned him on the ground, causing him to sustain injuries on his wrists and hands.

[21] Mr Mabidu testified that, after getting Mr Letsoalo’s complaint, he summoned Mr Sejapale to his office to get his side of the story. Mr Sejapale attended to his office and narrated what transpired. The record further reveals the following exchange between Mabula Platinum’s representative and Mr Mabidu:

‘Respondent Rep: Did you, what were you doing as he was telling you his side of the story?

Mr Mabidu: Now, I was just sitting and listening.

Mr Mabidu: Then afterwards I, after he ended his narration I asked him if he could put it in writing. He said he does not have a problem with it being in a written form, but I should assist him to write the statement.

Respondent Rep: Okay, what then happened?

Mr Mabidu: I told him also that after I have taken his statement I am going to require him to sign to confirm that what I have written is actually his own story. Then I started taking his statement and then after I had taken his statement I then read it back to him so that he can agree with what, the contents of the statement is actually his version. Then after that he admits with me that indeed that is what he said and then while I was giving him the statement so that the can sign the two guys that came in and they were union guys. They entered the office, they were busy in the office just adjacent mine.’

[22] Mabula Platinum’s representative asked what was Mr Sejapale’s essence of his version. Mr Mabidu responded as follows:

‘Mr Mabidu: Because the statement was actually maybe in the response to what I had told him about the story that was told by the miner he was actually responding to the issue of the assault. He told me that he was sitting at the waiting place and then the miner was passing by. Then he asked for his clock card from the miner and the miner refused to give him the clock card. Then as for assaulting him he said he did not assault the miner. He said he only grabbed the miner by the belt.’

[23] In his award, the commissioner dealt with this issue and recorded the following:

‘It is common cause that on a particular date the Employee was a part of crew of about 6 members comprised of 4 Rock drill operators, winch operator and Equipment helper. It is also common cause that Mr K Letsoalo was a Crew Supervisor and the victim of the alleged assault by the Employee. The EEmployer's first witness Mr Mabilo (Madibu) who is also the Employee Relations Officer of the Employer testified that he did not witness the alleged assault but was the person who when he got a complaint about the assault from the Mr Letsoalo, he summoned the Employee. He further testified that the employee agreed to make the statement which was to be reduced to writing. He further testified that the Employer later decided not to hand in the statement on the advice of two other gentlemen who were shop stewards. It is also important to note that that the only thing which might be relevant from Mr Mabilu’s testimony is that the employee stated to him that he only grabbed at Mr Letsoalo by the cap lamp. This was denied by the employee. It is also important to note that no written statement of the employee was presented during the disciplinary hearing nor during this arbitration. The question is whether the testimony by Mr Mabilu proves the assault took place. My analysis is that the testimony cannot assist in proving that the assault took place.’

[24] The commissioner noted that he was faced with two contradictory versions of whether the assault took place. Mr Letsoalo sought to rely on his alleged sustained injuries and consultation with the local clinic and his supervisor to prove that Mr Sejapale assaulted him. However, in the absence of the records from the local clinic and his supervisor's testimony, the commissioner found that Marula Platinum provided no evidence to prove, on a balance of probabilities, the alleged assault.

[25] Marula Platinum criticised the commissioner for drawing an adverse finding against it for not producing the medical records and not calling Mr Letsoalo’s supervisor as a witness on the basis that both were irrelevant in determining whether an assault occurred. This criticism was unwarranted because, in this case, the medical records and the evidence by Mr Letsoalo’s supervisor were relevant as Mr Letsoalo relied on them to establish that Mr Sejapale assaulted him.

[26] Marula Platinum contended the commissioner failed to make a credibility finding against Mr Sejapale even though he contradicted himself when he testified that Mr Letsoalo slipped for no apparent reason and stated in cross-examination that he (Mr Letsoalo) fell while he was trying to pass him and his colleague. Based on this alleged contradiction, Marula Platinum contended that the commissioner should have drawn an inference that there was some form of contact between Sejapale and Letsoalo, which resulted in the latter falling to the ground.

[27] AMCU’s counsel correctly submitted that Mr Sejapelo did not contradict himself, and the inference to be drawn that there was some form of contact cannot be drawn from the evidence relied upon by Marula Platinum. Accordingly, there was no basis for the commissioner to make an adverse credibility finding against Mr Sejapale.

[28] Marula Platinum attacked the commissioner’s decision to reinstate Mr Sejapale with full back-pay. Section 193(2) of the LRA makes reinstatement the primary remedy unless one of four exceptions is applicable, and it reads as follows:

'The Labour Court or the arbitrator must require the Employer to reinstate or re-employ the employee unless-

(a) the employee does not wish to be reinstated or re-employed;

(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

(c) it is not reasonably practicable for the Employer to reinstate or re-employ the employee; or

(d) the dismissal is unfair only because the Employer did not follow a fair procedure.'

[29] It is trite that reinstatement involves placing an employee back in employment as if the dismissal had never occurred.[5] In Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v NUM obo Masha and Others[6], the Court reaffirmed the discretionary nature of the power to grant relief in terms of section 193 as follows:

‘…If the exceptions to the remedy of reinstatement do not apply, the Labour Court and arbitrators only have discretion with regard to the extent to which reinstatement should be made retrospective. An employer wishing to avoid reinstatement must satisfy the arbitrator that one of the exceptions to reinstatement applies, in this case to show that it would not be practicable. The Employer should lead evidence concerning relief in anticipation of a finding that a dismissal might be ruled unfair.’

[30] In the current matter, the commissioner found the dismissal to be substantively unfair, AMCU sought Mr Sejapale’s reinstatement, and there was no evidence before the commissioner to support the contention that the circumstances surrounding his dismissal were such that a continued employment relationship would be intolerable or that it was not reasonably practicable for Marula Platinum to reinstate or re-employ Mr Sejapale. As such, the commissioner’s decision to reinstate Mr Sejapale does fall within the range of possible justifiable decisions that could be reached based on the facts before the decision-maker.

Conclusion

[31] The manner in which the commissioner analysed the dispute before him does not support Marula Platinum’s version that he conducted the enquiry incorrectly, misdirected himself on the point of law and committed an irregularity or an act of misconduct because, as the award reflects, he dealt with the issue before him correctly. He assessed the evidence before him and concluded that any reasonable decision-maker could have reached. There is, therefore, no reason for this Court to interfere with his award.

Costs

[32] Section 162 of the LRA gives the Court broad discretion in awarding costs. The Constitutional Court confirmed in Zungu v Premier of the Province of KwaZulu-Natal and others[7] that cost orders should be made in accordance with the requirements of law and fairness. In this matter, the requirements of law and fairness dictate that there should be no order for costs

[33] It was for the above reasons that this Court issued the aforementioned order.

D. Mahosi

Judge of the Labour Court of South Africa

Heard: 31 August 2023

Delivered: 31 August 2023

Reasons: 13 August 2024

Appearances:

For the applicant: Mr Victor Mndebele of Webber Wentzel Attorneys

For the third respondent: Advocate Ashley Cook

Instructed by:

LDA Incorporated Attorneys

[1] Act. 66 of 1995, as amended.

[2] [2015] 1 BLLR 50 (LAC).

[3] Id fn 3 at para 30.

[4] Id fn 3 at para 33.

[5] Mediterranean Textile Mills (Pty) Ltd v SACTWU and Others [2012] 2 BLLR 142 (LAC) at para 28.

[6] (JA 4/15) [2016] ZALAC 25 (14 June 2016) at para 8.

[7] (2018) 29 ILJ 523 (CC), para 24