Mthimunye v Nokonkoeng N.O and Another (JR2777/18) [2023] ZALCJHB 81 (24 March 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No.: JR2777/18

In the matter between:

SIPHIWE

SIMON MTHIMUNYE Applicant

And

NOKO

NOKONKOENG N.O. First

Respondent

NATIONAL

BARGAINING COUNCIL FOR THE CHEMICAL INDUSTRY

SASOL SATELITE OPERATIONS (PTY) LTD Second

Respondent

Heard: 12 September 2022

Delivered: 24 March 2023

Summary: Review application in terms of section 145 of the Labour Relations Act, 1995. Consideration of the test for reviewing arbitrators decisions and in light of the said test as set out in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) whether arbitrator’s award reviewable. Applicant not showing grounds to review Commissioner’s decision and accordingly application dismissed.

JUDGMENT

SNIDER AJ

[1] The Applicant was employed by the Third Respondent as a Production Foreman from 2 August 1993 until 6 June 2018 when he was dismissed as a result of his poor work performance.

[2] The grounds of review raised in the Applicant’s founding affidavit are that:

2.1. the First Respondent (the Arbitrator) conducted the proceedings irregularly by rendering an award without having allowed the Applicant to properly and adequately state his side of the case. Such conduct being contrary to the natural justice principle of audi alteram partem. This allegation is far too vague to form a proper ground of review in the sense that it is unsupported by anything factual which appears in the record. The evidence of the Applicant is transcribed in the record and runs from page 106 thereof until page 217. There is no indication as to what could constitution a violation of the audi alteram partem principle and thus this ground of review has no merit. The Applicant was also assisted by a legal advisor, a Mr Gosi at the arbitration which makes it even less likely that his right to audi alteram partem was violated by the Arbitrator;

2.2. the Commissioner failed to fully apply his mind to the totality of issues before him and the legal principles which ought to be applied in resolving the issues between the Applicant and the Third Respondent. This, similarly, is too vague to be able to adjudicate; and

2.3. the Arbitrator did not apply his mind to the fact that the procedure applicable in cases relating to employees dismissed for alleged poor work performance was not adhered to. The First Respondent has therefore ignored essential and relevant information which could have assisted him in reaching an equitable and fair decision. Extensive evidence was given in relation to the procedure followed by Xolani Msila (Msila), who was employed by the Third Respondent for over 22 years and, at the hearing of the arbitration, was a Production Manager. Not only did he set out in detail the procedure that was in place and the procedure which was to be followed but, in addition thereto, he stated in his evidence that that there were two procedures in place. The procedure for poor work performance and another procedure in relation to other issues were combined for convenience without in any way changing the procedure on poor performance. Again, there is no basis on which the Arbitrator conducted himself in a manner which could bring about the review of his award.

[3] These were the sum total of the review grounds in the Applicant’s founding affidavit.

[4] I turn now to the Applicant’s supplementary affidavit which is equally sparse in terms of grounds of review. He repeats the ground of review in relation to the applicable policy stating that the policy applied was outdated and not in use. This is not the evidence of Msila who was clear in relation to which policy was used and, in

any event, policies of this nature are generally regarded as guidelines and it would have to be shown that in some way the policy

and procedure that was followed by the third Respondent prejudiced the Applicant in a manner that impugned on the Applicant’s

rights to the extent that his dismissal was rendered unfair.

[5] There is no cogent evidence to suggest that this was the case. The arbitrator is not obliged to deal, in minute detail, with every aspect of evidence which is given by an Applicant. The Arbitrator dealt with all of the significant evidence relating to the Applicant’s dismissal and there was simply nothing before him which indicated unfairness.

[6] The Applicant further claims in his supplementary affidavit that there was no evidence tendered to indicate that any training or counselling was offered to him to remedy to alleged poor work performance. This is simply not correct, Msila gave evidence that he, inter alia, reduced the complexity and KPA’s in relation of the Applicant’s contractual relationship with the Third Respondent so there were much more limited responsibilities that he had to perform. It was quite clear from Msila’s evidence that he was considerably involved in the performance of the Applicant and did everything he could to help him, including going through the

Applicant’s responsibilities, seeking to guide him and trying to get him to improve. The evidence of Msila was that there were numerous meetings in relation to performance that the Applicant would avoid attending. In addition, the Applicant had been given poor ratings for his performance including the lowest possible rating an “X”.

[7] Discussions were held between Msila and the Applicant, but obviously to no avail. The Applicant was a seasoned employee and yet he simply failed to take Msila’s cue in improving his performance.

[8] The Applicant complains that the Arbitrator never had regard to the provisions of section 186(2)(a) of the Labour Relations Act[1] (LRA) however, this deals with unfair labour practices and there was no unfair labour practice before the Arbitrator.

[9] It is clear from the evidence of Msila that the dictates of item 8 incapacity: poor work performance were followed by the Third Respondent:

9.1. an investigation was held to establish the reasons for the unsatisfactory performance of the Applicant;

9.2. the employee was evaluated, instructed, trained, guided and counselled to the extent necessary under the circumstance; and

9.3. the Applicant was given more than sufficient time to improve. In fact the Applicant had been a poor performer for some years and his performance was deteriorating.

[10] It is also noteworthy that the Applicant was offered a demotion from which there can be little doubt that he could have been promoted had his performance improved. He simply rejected the demotion.

[11] The Applicant alleges that the Arbitrator did not know what the issue before him was, whether it is alleged poor work performance or his failure to accept demotion. I see nothing in the Arbitrator’s award that indicates that he was in any way confused. He clearly considered the poor performance of the Applicant and not his failure to accept a demotion when he considered the Applicant’s conduct.

[12] Under issues to be decided in the award, the Arbitrator specifically refers to the issues as being whether the Applicant failed to meet the required performance standard.

[13] The Arbitrator deals carefully and in detail with the evidence presented to him, and this is quite apparent from his analysis of evidence and argument particularly at paragraphs 46, 47 and 48 thereof. This has nothing to do with the failure to take a demotion being the gravamen of the Arbitrator’s award.

Condonation application

[14] There were condonation applications from both sides in respect of the late filing of affidavits. I hereby grant both condonation applications being in respect of the Applicant’s supplementary affidavit and the Third Respondent’s answering affidavit.

[15] This matter is clearly one which is important to both parties and the key aspect in relation to condonation which I have taken into consideration is that the parties must stand or fall by the merits of their papers. It would have forced me to deal with the matter on a piecemeal and disjointed basis had I excluded either of these affidavits,

[16] The Third Respondent duly answered the Applicant’s founding and supplementary affidavit. The Applicant then filed a replying affidavit.

[17] The replying affidavit is, nothing very much short of being an attempt to establish a new case in reply which it is trite, is impermissible. None of the Respondents’ have an opportunity to deal with the allegations in the replying affidavit and accordingly although I have considered it, it is largely argumentative and does not take the matter any further. Even the new factual allegations in the replying affidavit are querulous and unhelpful. Nothing in the affidavit dislodges the Arbitrator’s award.

[18] The Applicant seems to misapprehend the test in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[2] which asks the question “whether the decision reached by commissioner is one that a reasonable decision maker could not reach?”.

[19] I have read the Applicant’s replying affidavit but I cannot admit its contents. It would be contrary to the law to do so. The replying affidavit is not even done in an “ad paragraph” form, indicative of the fact that it is an entirely new attempt at reviewing the Arbitrator’s award.

[20] In the premises the following order is made:

Order

1. The application to review the Arbitrator’s award is dismissed.

2. There is no order as to costs.

A. Snider

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: In

person

For the Respondent: Lizane Taylor of JR Attorneys

[1] No. 66 of 1995.

[2] (2007) 28 ILJ 2405 (CC).