Minerals Operations Executive (Pty) Ltd t/a Minopex v Commission for Conciliation Mediation and Arbitration and Others (JR759/21) [2024] ZALCJHB 352 (4 September 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 759/21

In the matter between:

MINERALS OPERATIONS EXECUTIVE (PTY) LTD t/a MINOPEX Applicant and COMMISSIONER FOR CONCILIATION MEDIATION AND ARBITRATION First Respondent COMMISSIONER COMFORT MOKOBANE, N.O Second Respondent JEREMIAH RAMIKOSI Third Respondent

Heard: 21 August 2024

Delivered: 04 September 2024

This order was handed down electronically by circulation to the parties’ legal representatives by email. The date for hand-down is deemed to be 04 September 2024.

JUDGMENT

BECKENSTRATER, AJ

Introduction

[1] In this matter the Applicant seeks to review and set aside an arbitration award of the Second Respondent (the Commissioner). The Third Respondent was previously employed by the Applicant. In circumstances outlined below, he was dismissed after being found guilty of the following charges:

“1. Unauthorized absence from work on 15 June 2020.

2. Dishonesty in that you preplanned your absence from work”.

[2] The Third Respondent had referred and unfair dismissal dispute in this regard to the Second Respondent, the Commission for Conciliation, Mediation and Arbitration (the CCMA). That matter had come before the Commissioner for arbitration. At that arbitration the Applicant had led that the evidence of three witnesses, Paul Sekwati (Sekwati) the Third Respondent’s supervisor as well as Portia Ntuli (Ntuli) and Khanyisa Mkhaliphi (Mkhaliphi) two of the Third Respondent’s co-workers. The Third Respondent also gave evidence. The Procedural fairness was not an issue. Pursuant to the arbitration the Commissioner found the Third Respondent’s dismissal to be substantively unfair and ordered his retrospective re-instatement, with effective from 12 April 2021 together with a payment of arrear wages in the amount of R248 305.89, being seven months salary.

[3] The Applicant sought to review the award as being one that no reasonable Commissioner could have made. The Third Respondent opposed the review application.

[4] A summary of the facts leading to the Third Respondent’s dismissal as evident from the transcript of the CCMA arbitration appears as follows:

[5] Tuesday, 16 June 2020, was a public holiday. On Monday, 08 June 2020, the Third Respondent requested three days leave from Sekwati for Thursday 11 June 2020, Friday 12 June 2020 and Monday 15 June 2020. The Third Respondent wanted leave in order to go to his home in Venda.

[6] Sekwati was of the view that he could not allow the Third Respondent leave as requested and around Tuesday 9 June 2020, advised the Third Respondent that he could take one day leave. He could choose whether he would prefer leave on Friday 12 June 2020 or Monday 15 June 2020. On Wednesday 10 June 2020 the Third Respondent confirmed that he wished to take leave on the Friday.

[7] On the Thursday, Sekwati advised the third Respondent during the morning that he could leave early but that he must remember to complete a leave form. Around 12h00 on that Thursday, the Third Respondent requested Mkhaliphi to print a leave form for him, which she did. He did not, however, complete the leave form and leave it on Sekwati’s desk as requested but left for his leave.

[8] At 17h32 on Sunday 14 June 2020, the Third Respondent sent Sekwati a WhatsApp stating: “I wouldn’t be able to make it tomorrow for work. I need to take the car to the mechanic”. Sekwati was suspicious of this last-minute notification and there was an exchange of WhatsApp messages in this regard in which the Third Respondent confirmed that he was still in Venda but that his car “is over heating (the fan is not engaging)”.

[9] On the Monday Sekwati expressed his frustrations about the Third Respondent’s absence in front of Ntuli and Mkhaliphi. They appeared to have understood his frustrations and advised him that on the Thursday, when the Third Respondent was leaving, he had said to them that he would see them on Wednesday.

[10] The Third Respondent returned to work on Wednesday 17 June 2020. Sekwati told him that he had to fill in a leave form for both the Friday and the Monday and he was upset that the leave form hadn’t been left on his desk on the Thursday. He confronted the third respondent with the allegation that Ntuli and Mkhaliphi had heard him saying that he would see them on Wednesday. The Third Respondent alleged he had said that to them earlier in the week (before his three-day leave had been rejected). Sekwati then called Ntuli and Mkhaliphi into the meeting where they stated that the Third Respondent had spoken to them on that Thursday when he was

leaving. At that time the Third Respondent then stated that he did not remember when he had said it.

[11] On 26 June 2020, Sekwati had prepared a written warning document for the Third Respondent relating to his absence from work without permission on 15 June 2020. According to Sekwati, when he attempted to hand that warning to the Third Respondent, the Third Respondent objected and insisted on a formal process being followed. Sekwati then obtained further advice on the issue from an employee in HR which led to the Third Respondent being served with the charge sheet setting out the two charges quoted above.

[12] At the disciplinary hearing the Third Respondent introduced the above WhatsApp communications as well as a car tracker report in support of his contention that his car was at a mechanic over the weekend. He also referred to the mechanic’s Facebook Page reflecting that his car had been “downpiped” with a “full exhaust system”. Pursuant to the disciplinary enquiry the Third Respondent was found guilty of the charges and dismissed.

[13] The Third Respondent referred an unfair dismissal dispute in this regard to the CCMA.

The CCMA

[14] At the CCMA the Respondent further also introduced two invoices reflecting repairs to his motor vehicle on 13 and 15 June 2020, and also further WhatsApp and SMS messages and a call log between himself and the mechanic on 13, 14 and 15 June 2020.

[15] After the arbitration the Commissioner issued the award. After summarizing the main aspects of the evidence led the Commissioner reasoned are as follows:

“[22] It is common cause that the applicant requested and was granted leave for the 12 June 2020. It is further not in dispute that the applicant did not report for duty on 15 June 2020 citing mechanical problems of his car as the reason thereof.

[23] The respondent on the other hand contended that the applicant pre-planned his absence and made himself guilty of dishonesty. The applicant provided proof in the form of invoices from the mechanic corroborating his version that indeed his car had mechanical problems.

[24] The applicant presented his evidence in a consistent and coherent manner and did not crack under cross examination. Regrettably same cannot be said about the respondent last two witnesses whose testimony is crucial for determination of this matter. They contradicted each in terms of the language used by the applicant when he left work on Thursday

[25] Portia testified that the applicant spoke English when he told them that the applicant he would see them on Wednesday. However, Khanyisa maintains that the applicant spoke in vernacular language. This is material contradiction for people who were sharing the same office and were present when the applicant left the workplace. It appears that the applicant was dismissed based on suspicion which is not acceptable.

[26] Whether or not such suspicion is strong is immaterial. The test for fairness remains that of a balance of probability. What further emerges from the evidence is the respondent’s first witness was infuriated by the applicant failure to complete the leave form and leave it on the table as instructed.

[27] The last straw was when the applicant refused to sign the warning he wanted to issue him for absenteeism and decided to charge him with a more severe charge of dishonesty. The messages exchanged between the applicant and the respondent’s first witness clearly show that the latter second guessed the reason given by the applicant for his failure to report for duty on 15 June 2020.

[28] This is a pure case of absenteeism as ought to have been dealt with as such by the respondent. For the above reasons, the dismissal of the applicant by the respondent is found to be substantively unfair. The applicant prayed for reinstatement by the respondent as remedy I have no reason to deviate from his request.”[1]

The Review

[16] When compared to the evidence as revealed by the transcript paragraph 25 of the award is clearly wrong. As the Applicant’s counsel demonstrated the inconsistency relied upon by the Commissioner did not in fact exist. As far as language was concerned Portia Ntuli only testified that, generally speaking, she conversed with the Third Respondent in English. She was never asked about the language used on the Thursday when, according to her, the Third Respondent had advised he would see them (Ntuli and Mkhaliphi)

on Wednesday. Mkhaliphi was asked about the language used at that time and stated that it was the vernacular (and by this she indicated

that the Third Respondent often swapped between African languages) but that he had used the word “Wednesday” in English. There was no contradiction at all or let alone one which would be material to the credibility of the witnesses. In consequence, the Commissioner’s reasons for rejecting the evidence of both Ntuli and Mkhaliphi was without foundation.

[17] The Commissioner’s reason for rejecting that evidence was demonstrably wrong. The Commissioner’s disregarding of that evidence (through her incorrect understanding) had a material effect on her reasoning. That error enabled the Commissioner to accept the Third Respondent’s version without weighing the reliability and probabilities of both versions.

[18] This constituted a gross irregularity in the proceedings. This Court has held that the determination of factual disputes on the basis of credibility alone is an irregularity[2]. The factual dispute in this matter was resolved by the Commissioner on that (irregular) basis. As was held in Network Field Marketing (Pty) Ltd v Mngezana NO and Others[3]:

“It is possible that there might have been another basis for doubting the value of Little and Steinberg’s evidence but if there was it did not form part of the arbitrator’s reasoning in dismissing the credibility of Steinberg’s testimony on the most slender basis and, in the case of Little, there was no factual basis at all. By excluding the applicant’s evidence from serious consideration on this unwarranted basis, the arbitrator effectively denied the applicant a fair hearing which amounts to misconduct by the arbitrator in relation to his duties in terms of section 145(2)(a)(i) of the Labour Relations Act 66 of 1995. Quite apart from this, his bold findings on credibility are ones that no reasonable arbitrator would have made.”

[19] It is however established that simply because there is an irregularity in the proceedings this does not render the award reviewable. It only becomes reviewable if that irregularity had a “distorting effect” on the eventual outcome.[4] I still have to consider, against the totality of the evidence, whether the final result was unreasonable.[5]

[20] In defending the award Advocate Tshisevte on behalf of the Third Respondent submitted that there were a number of factors which conclusively demonstrated the dismissal was unfair apart from a holistic consideration of the evidence.

[21] Firstly, it was contended that the Third Respondent had been issued with a written warning for absenteeism on 26 June 2020. It was argued that this, together with the insistence that the Applicant apply for leave for 15 June 2020, precluded the Applicant from subsequently instituting disciplinary proceedings against the Third Respondent. I cannot accept this contention. Both Sekwati and the Third Respondent testified that when Sekwati presented the Third Respondent with written warning the third Respondent disputed the written warning, the meeting was adjourned, and the Third Respondent was then subsequently given notice of a disciplinary hearing. It is evident that the written warning document was never then imposed upon the Third Respondent on 26 June 2020, but the matter rather referred to a disciplinary hearing. Consistent with this the written warning in the record was not signed by the Third Respondent in acknowledgement of receipt. The Applicant had not issued the Third Respondent with a written warning. Sekwati had intended to do so but when it was disputed referred the matter to a disciplinary hearing.

[22] It was further contended that the two charges brought against the Third Respondent constituted an impermissible splitting of charges. In support of this contention the Third respondent relied upon the authority of Ntshangane v Specialty Metals CC[6]. In that case Mlambo J (as he then was) found that a finding of guilt on charges of being absent from work without permission included the inevitable finding that the employee’s explanation for his absence was unacceptable. At paragraphs 16 and 17 Mlambo J held that:

“[16] If the Applicant had a good and acceptable explanation for his lateness and absenteeism it would have been unfair to dismiss him under those circumstances. The fact that Applicant had no good or acceptable reason for being late and absent made it proper for him to be charged. In charging him on account of lateness and absenteeism Respondent made election. Having made this election Respondent went further and used Applicant’s unacceptable and false explanation to formulate the third charge.

[17] In my view this was unfair. It is clear that the basis for finding Applicant guilty on the first two charges was Applicant’s unacceptable explanation. Using the explanation to formulate a third charge took the issue beyond the realms of fairness. The picture would be different had the respondent charged the Applicant with only one charge relating to breach of trust”.

[23] The Specialty Metals case is however distinguishable on the facts. In that matter it was emphasized that the company had imposed different sanctions for each of the charges against the employee imposing different sanctions for unauthorized absenteeism and breach of trust pertaining to the explanation for that absence. In the present matter the presiding officer at the disciplinary hearing had considered a single sanction for both charges together. This much is born out by the presiding officer’s deliberations on sanction. Moreover, in this matter, unlike that of the Specialty Metals case, the employee had specifically been charged with preplanning the absence, which distinguishes it from simply proffering an unacceptable or false excuse in relation to the absence.

[24] This then turns one to a holistic consideration of the conflicting evidence.

[25] On the one hand two colleagues of the Third Respondent testified that when he left work on the Thursday, he advised them he would see them on Wednesday, indicating a clear intention not to be at work on Monday 15 June 2020. In evidence the third Respondent admitted that he had a good relationship with both of those colleagues and could not suggest why they would manufacture such evidence against him. While in his earlier discussions with Sekwati he had suggested that the conversation had taken place earlier in the week rather than on the Thursday he later reportedly said he couldn’t remember when it had taken place. In evidence the Third Respondent denied having told Ntuli and Mkhaliphi on the Thursday that he would see them the next Wednesday. He asserted that earlier in the week he had advised them of his intention to be away until the Wednesday but that was before his request for 3 days leave

was declined.

[26] There does not appear to be any other obvious reason from the transcript to reject the evidence of Ntuli and Mkhaliphi in this regard. It certainly placed an evidentiary burden upon the Third Respondent to justify his absence.[7]

[27] At the arbitration the Third Respondent testified that when he drove to Venda his vehicle had lost power and so he had taken his vehicle to a mechanic he had seen on Facebook on Saturday 13 June 2020. When he drove his vehicle home that day it started to overheat so he had phoned the mechanic who advised him to come back the next day, Sunday 14 June 2020. Despite several attempted phone calls and messages to the mechanic on the Sunday the mechanic was not available and advised the Third Respondent to bring the car in the next day. It was in those circumstances that he had advised Sekwati of his motor vehicle difficulties late on the Sunday. He took the vehicle back to the mechanic on Monday 15 June 2020. The vehicle was repaired on that day. In support of his contentions the Third Respondent referred to the tracker reports and Facebook posts which had been presented at the disciplinary enquiry and also referred to invoices from an entity called VAG Tuning as well as screenshots of WhatsApp messages, SMSs and missed calls to VAG Tuning on 14 and 15 June 2020.

[28] At the arbitration the corroborating documents of the Third Respondent were not dealt with by the Applicant in any detail. The Applicant disputed the tracker reports confirmed that the Third Respondent’s vehicle had been parked at a mechanic (as there was no proof that the address where the vehicle had been parked was that of the mechanic) and argued that on the face of the invoices it was not evident they related to overheating problems. The Third Respondent’s messages recorded his “ECU was blown” while the Facebook posts and invoice for VAG Tuning for 13 June 2020, related to a ‘full exhaust system”. The invoice for 15 June 2020, related to a rework of some of the work that was done on the Saturday recording: “software unable to read temperature switch” and the provision of antifreeze. No evidence was however given to explain the nature of these repairs.

[29] At the CCMA and before the court there was a dispute between the parties as to whether the Applicant or the Third Respondent should have called expert evidence to corroborate whether the invoices related to a problem of overheating or the vehicle fan not engaging as the Third Respondent had contended. The Applicant contended that as the third Respondent relied on the allegation of vehicle difficulties, he was required to demonstrate that allegation. The Third Respondent argued that the Applicant bore the onus to prove the substantive fairness of the dismissal and thus should have called an expert.

[30] At the CCMA the Third Respondent did not explain why the invoices and messages between himself and the mechanic had not been provided to the disciplinary enquiry nor did the Applicant interrogate this issue.

[31] As I have set out above the evidence of Ntuli and Mkhaliphi placed an evidentiary burden of the Third Respondent. This required him not only to provide a reason for his not attending work on the Monday but to provide proof of it. The documentation he provided in that regard did to some degree corroborate his version, but it was not without difficulties.

[32] Advocate Siyo on behalf of the Applicant furthermore argued that the Third Respondent had done little to try and get to work on the Monday, suggesting that even if the vehicle difficulties were genuine, they were not the real reason the Third Respondent had not been to work. Had he intended to be at work, there was a lot more that he could and should have done having apparently already been aware of mechanical problems on the Thursday night. It was argued he could have notified Sekwati at an earlier time that he

was experiencing car difficulties and he could have at least attempted other arrangements to get to work.

[33] In the final analysis, the court has to decide whether the consideration of the above factors made the acceptance of the Third Respondent’s version unreasonable. The difficulty the court has is that the acceptance of the Third Respondent’s version renders the evidence of Ntuli and Mkhaliphi irrelevant. But that evidence cannot simply be discounted. The belated submission of invoices from and SMS communications with a mechanic cannot mean this evidence is ignored. The conflicting versions needed to weighed by a consideration of credibility, reliability and probabilities. In the absence of a credibility finding it seems to me a reasonable Commissioner, understanding there was an evidentiary burden on the Third Respondent, would have found the Applicant’s version to be more probable. In the circumstances, the award falls to be reviewed and set aside.

[34] The Applicant sought a substitution of the award with a finding that the Third Respondent’s dismissal was fair. I am of the view that a substitution would not be appropriate where both parties have argued that there could be potential relevance in an expert testifying in relation to the mechanical repairs but none was called. Moreover, there was little detail paid at the CCMA to the relevance and content of the various WhatsApp messages which at this stage remain largely unexplained. The Commissioner’s finding on the credibility cannot stand and this court is not able to make credibility findings from the record. A proper rehearing where the parties are focused on these issues would be more likely to lead to a just result.

[35] In the above circumstances the following order is made:

Order

1. The arbitration award of the Second Respondent under case number MPEM5126-20 dated 17 March 2021 is reviewed and set aside.

2. The matter is remitted to the First Respondent for a rehearing before a Commissioner other than the Second Respondent.

3. There is no order as to costs.

Beckenstrater AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate L Siyo Instructed by: C N Phakubje Attorneys For the Respondent: Advocate Tshisevte Instructed by: Siebani Attorneys

[1] In the quotation from the award the parties are referred to as they were to before the CCMA.

[2] See: Lukhanji Municipality v Nonxuba NO and others [2007] 2 BLLR 130 (LC) at paras 27-30; Network Field Marketing (Pty) Ltd v Mngezana No and Others [2011] 7 BLLR 699 (LC).

[3] [2011] 7 BLLR 699 (LC) at para 23.

[4] See: Head of the Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC).

[5] See: Herholdt v Nedbank Ltd [2013] 11 BLLR 1074 (SCA): See in the context of this type of matter: National Union of Mineworkers and Another v CCMA and Others (2015) 36 ILJ 2038 (LAC) at paras 16 and 17.

[6] [1998] 3 BLLR 305 (LC)

[7] See: Woolworths (Pty) Ltd v CCMA and Others [2011] 10 BLLR 963 (LAC) at para 34; TMT Services and supplies (Pty) Ltd v CCMA and Others (2019) 40 ILJ 150 (LAC) at para 26