Motlhale v Commission for Conciliation, Mediation and Arbitration and Others (JR 2119/19) [2021] ZALCJHB 54 (31 March 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2119/19

In the matter between:

RICHARD MOTLHALE Applicant

and

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION First

Respondent

WERNER KRUGER N.O.

Second Respondent

RPL MERCHANDISING (PTY) LTD

Third Respondent

Heard: 09 February 2021 (via Zoom)

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 31 March 2021.

Review application – fragmented piecemeal impugn blurs the line between review and appeal – based the totality of the evidence the award is unassailable.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] This is a review application in terms of section 145(1)(a) of the Labour Relations Act[1] (LRA). The applicant is challenging the arbitration award issued by the second respondent, Werner Kruger (Commissioner), dated 28 August 2019 under case number GAJB12893/17 under the auspices of the first respondent, the Commission for Conciliation Mediation and Arbitration (CCMA).

[2] The applicant approaches this Court for the second time consequent to having been successful in the previous reviewing application and the matter accordingly remitted to the CCMA for a hearing de novo, hence the impugned award.

[3] In the present instance, the applicant submitted that the matter should proceed on an unopposed basis because the third respondent filed its answering affidavit late and failed to apply for condonation. The third respondent, on the other hand, submitted that there is no need to apply for condonation as the applicant failed to serve it with the notice in terms of Rule7A(8)(a) of the Labour Court Rules, hence it failed to attend to the answering affidavit. In fact, there is a string of communication on this issue that had been addressed to the applicant by the third respondent’s erstwhile attorneys but was no favoured with any response.

[4] Apparently the applicant did serve the Rule7A(8)(a) notice on the third respondent through it erstwhile attorneys. However, he failed to file an affidavit of service explaining whether the applicant did ensure that it was duly received by the third respondent’s erstwhile attorneys.

[5] In the absence of the opposing papers, the Registrar issued a directive for the filing of the heads of argument. The applicant duly complied and filed his heads of argument on 10 December 2020. The third respondent erstwhile attorneys took issue with the applicant’s step in filing the heads of argument as the pleadings had not closed. When the applicant failed to respond, the complaint was directed to the Registrar of this Court for a directive of the further steps to be taken. The Registrar responded by issuing another directive for the filing of the heads of argument. It was only then that the first respondent attorneys of record took over the matter and attended to the answering affidavit. It is clear also that by that time the Registrar had also served the parties with the notice of set down.

[6] At the hearing of the matter, the respondent’s papers where not before the Court due reduced the staff complement in keeping with the government health protocols in response to COVID-19 pandemic. Given the long history of this matter I was disinclined to have it further delayed. I accordingly directed the third respondent deliver the missing papers and it did so with necessary speed.

[7] I am accordingly satisfied that in the absence of proper service of the Rule 7A8(a) notice by the applicant, the third respondent was not bound by the time frames provided therein. As such, there is indeed no need for the condonation application. I note that the applicant is an unrepresented individual litigant. Yet, he has done all pretty well, in the circumstances, to ensure that this matter is properly before Court.

Legal principles and application

[8] The applicant impugns the award on the basis of reasonableness. In SA Rugby Union v Watson and Others,[2] the Labour Appeal Court (LAC) emphasising the test for review, remarked as follows:

‘[25] The test to be applied in this kind of dispute is the one which was set out in Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)[3] (Herholdt). In their joint judgment, Cachalia and Wallis JJA gave welcome additional content to the Constitutional Court’s decision in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC) in respect of a review brought in terms of s 145 of the LRA. A review of an award issued by second respondent is permissible if the arbitrator has misconceived the nature of the enquiry or arrived at an unreasonable result. A result will be considered to be unreasonable if it is one that a reasonable arbitrator could not reach on all the material presented to him or her. A material error of fact as well as the weight and relevance to be given to any particular fact is not in and of itself a justification

for an award to be set aside on review (para 25).

[26] This approach was followed by Waglay JP in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration and Others (Gold Fields):[4]

‘Where the arbitrator fails to have regard to the material facts it is likely that he or she will fail to arrive at a reasonable

decision. Where the arbitrator fails to follow proper process he or she may produce an unreasonable outcome. But again, this is

considered on the totality of the evidence not on a fragmented piecemeal analysis. As soon as it is done in a piecemeal fashion, the evaluation of the decision arrived at by the arbitrator assumes the form of an appeal. A fragmented analysis rather than a broad based evaluation of the totality of the evidence defeats review as a process. It follows that an argument that the failure to have regard to material facts may potentially result in a wrong decision has no place in review applications. Failure to have regard to material facts must actually defeat the constitutional imperative that the award must be rational and reasonable – there is no room for conjecture and guesswork.’ (Emphasis added)

[9] The third respondent is a merchandising company and employed the applicant as a nightshift supervisor, placed at its client, Makro, in Centurion. He was dismissed after he was found guilty of two counts of insubordination. First, that he refused to obey a reasonable lawful instruction from client to put week numbers on all pallets racked on the sales floor on 24 May 2017. Second, that he failed to obey the instruction issued by Mr Faber, the third respondent’s area managers, to replace an Absent Without Official Leave (AWOL) packer on 23 May 217.

[10] On the first count, the crux of the respondent’s case was that the client’s instruction was written in a black book that was used for communication. When the floor was inspected after the applicant had knocked off in the morning, it was discovered that there were racked pallets that had not been numbered contrary to the client’s clear instruction.

[11] The applicant’s denied that he was issued with an instruction as the black book was just a mere communication tool that he had introduced. In any event, it was part of their daily duties to number the racked pallets and, as such, it was highly impossible that they could have left any of them unnumbered. He was adamant that when Mr Faber conducted the morning inspections, all was well and he commended them for the job well done. If there were subsequently pallets that were not numbered, it could have been those that had been packed on the upper shelves in the morning by the dayshift.

[12] The applicant also challenged the photographic evidence that shows the unnumbered pallets as it was only taken after he had knocked off. He was adamant that even the photograph should at least support his case as it was highly impossible that his night shift team could left the upper shelves racks full without empty spaces after packing the lower shelves the whole night.

[13] The Commissioner rejected the applicant’s version of defence as improbable because if indeed it was the routine to label the pallets, then the instruction was issued simply because there was a special request or there was noncompliance. The Commissioner accepted the third respondent’s version that the pallets were shelved unlabelled. The applicant could not explain why the client falsely accused him. Instead, he adamant that he was only accused by the third respondent and not the client.

[14] It is clear from the transcript that the applicant refused to concede even simply and not contentious facts. It is common cause that the client did leave a note or instruction for the applicant and his team indicating what was expected from them. The applicant spends lot of time disputing the fact that the said note was an instruction. In my view, nothing turns on that. The fact is that the client left a note about what it expected and had an expectation that its request would be adhered to. Since the client had contract with the third respondent, it correctly queried the noncompliance with its instruction with the third respondent and not the applicant as he was not its employee. As a result, the third respondent duly exercised its powers as the employer and charged the applicant. In my view, the commissioner’s finding in this regard is beyond reproach.

[15] On the second count, the third respondent case was that the applicant failed to replace a packer who was AWOL on 23 May 2017 the next day, per the instruction of Mr Farber. In response, the applicant testified that he did replace the AWOL packer the following week in line with the practice.

[16] Much of the controversy in this regard was around the name of the AWOL packer because the applicant did not volunteer this information. It was only during his cross examination that the applicant identified Mr Marvelous Khumalo (Mr Khumalo) as the AWOL packer. However, when he was confronted with the attendance register that recorded Mr Khumalo as being off duty on 22 and 24 May 2017 not AWOL, he distanced himself from the attendance register, stating that it was completed by the other supervisor.

[17] It is clear from the schedule of the week of 22 to 28 May 2017 that Mr Khumalo was off duty on 22 to 24 May 2017. The attendance register for the same period corresponds with the schedule. It was not disputed that Mr Khumalo was only absent on 26 May 2017 and not on 23 May 2017. I therefore agree with the Commissioner that it is highly unlikely that it was Mr Khumalo who was AWOL on 23 and 24 May 2017. In fact, the applicant failed to reveal the identity of the AWOL packer when he was asked by Mr Faber on 23 and 24 May 2017. Mr Khumalo was only identified as the AWOL packer during the arbitration proceedings.

[18] Also, the applicant’s version of defence that he replaced Mr Khumalo on the following week’s schedule by placing him off duty as punishment is untenable. He was given an instruction to replace the AWOL packer the next day. The applicant deliberately confounded the issue of replacement and punishment. Even though Mr Faber conceded that an AWOL employee would be placed off duty on the following week’s schedule pending disciplinary enquiry, he was adamant that it was part of the applicant responsibility as a supervisor to replace him the next day. That is so because the third respondent is contractually bound to avail a certain number of employees and is paid per employee who report for duty. If the staff complement is less, it affected the profit margins of the third respondent. This evidence was not challenged.

[19] The applicant could not explain the logic behind continuing being short staffed for the whole week and only replace the AWOL employee the following week. On this count as well, the Commissioner’s finding cannot be faulted.

[20] When it comes to appropriateness of the sanction of dismissal, the Commission found that the applicant was unremorseful and did not provide honest and reasonable explanation for his conduct. As a result, the third respondent could not be expected to trust the applicant and to continue the working relationship. Equally, having read the record of the arbitration, the Commissioners finding in this regards cannot be faulted. The applicant, as a supervisor, was expected to take some responsibility. Instead, he challenged even undisputed facts; for example, the fact that he was at work on 25 May 2017, his signature in his job description, and the note or instruction in the black book.

[21] Lastly, the Commissioner made a credibility finding against the applicant which I am disinclined to interfere with as the record shows that the Commissioner properly analysed the evidence that was before him.[5]

Conclusion

[22] Taken as a whole, the applicant’s fragmented piecemeal impugn of the Commissioner’s analysis of evidence cannot be sanctioned as it obviously blurs the line between review and appeal. I am accordingly satisfied that, based the totality of the evidence that was before the Commissioner, the award is unassailable as it falls within the band of reasonable decisions.

Costs

[23] I am disinclined to award costs against the applicant, an individual litigant. In any event, costs to do not follow the result in this Court.

[24] In the premises, I make the following order:

Order

1. The review application is dismissed.

2. There is no order as to costs.

_________________

P. Nkutha-Nkontwana

Judge of the Labour Court of South Africa

[1] Act 66 of 1995, as amended.

[2] (2019) 40 ILJ 1052 (LAC).

[3] 2013 (6) SA 224 (SCA); (2013) 34 ILJ 2795 (SCA).

[4] (2014) 35 ILJ 943 (LAC) at para 21.

[5] See: National Union of Mineworkers & another v Commission for Conciliation, Mediation & Arbitration & others (2013) 34 ILJ 945 (LC) para 31.