National Union Mineworkers obo Masha v Metal And Engineering Industries Bargaining Council and Others (JR877/12) [2014] ZALCJHB 269 (18 July 2014)

IN THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHNNESBURG)

Not Reportable

Case No.JR877/12

In the matter between

NATIONAL UNION MINEWORKERS

First Applicant

obo RUTH MASHA

and

METAL AND ENGINEERING INDUSTRIES

First Respondent

BARGAINING COUNCIL

PIERRE DE VILLIERS, M

Second Respondent

XSTRATA SOUTH AFRICA PTY LTD

Third Respondent

LYDENBURG ALLOY-WORKS

Heard: 22 May 2014

Delivered: 18 July 2014

JUDGEMENT

SHAI AJ

Introduction

[1] This is an application by the applicant in terms section 145 of the Labour Relations Act 66 of 1995 in which it seeks an order in the following terms:

a) Reviewing and setting aside an Arbitration Award issued by the Second Respondent under case number MEGA 32369 dated 29th February 2012;

b) Alternatively substituting the relief of the compensation granted in the award with an order that the Applicant be reinstated retrospectively.

c) Alternatively directing that the matter be referred back to the first Respondent for arbitration de novo before an arbitrator other than the second Respondent.

d) Costs of suites against a party opposing the application.

The Facts

[2] The Applicant, Ruth Masha, was employed on the 01 February 2010 as Human Resource Assist earning a monthly salary of R10 760, 00.

[3] She was dismissed on the 3rd February 2011, following an alleged misconduct which took place on the 7th January 2011. At the said disciplinary hearing the employee was charged of alleged gross negligence in that she:

“did not follow the procedure on the contractor Mr.C.A.Letsoalo on the 7th January 2011. Because of her negligence, Mr.Letsoalo was issued with a clock card that gave him access to the operational unit, without following the correct steps on contractors route form. This resulted in Mr.Letsoalo by-passing the ’specific induction step’ which was critical for the safety of newly employed person.”

[4] The following issues were common cause at the arbitration proceedings:

4.1. It was Masha’s responsibility to capture all contractors on SAP and ADC.

4.2. The Applicant worked with Petro and Otto. She then took over the responsibilities from Otto after he left. Otto was her mentor and trainer.

4.3. The contractor route form must be completed before a new employee is allowed on site. The Applicant also issued clock cards to new employees.

4.4. The Applicant completed the new form the same way she was shown by Otto.

4.5. Otto did not train the Applicant on how to complete the contractors route form the way the third Respondent said it should be done.

4.6. The Applicant issued the clock card for Letsoalo on the 7th January 2011. Letsoalo was later fatally injured in an accident on the 24 January 2011.

4.7. There was no counselling on the Applicant for poor work performance.

4.8 The Applicant completed the forms with Otto for 3 months. She learned after the accident that Otto also completed the forms in a wrong manner, however, he was not charged.

4.9. The Applicant was found guilty of the alleged misconduct and a sanction of dismissal was imposed.

4.10. A dispute of unfair dismissal was referred to the bargaining council under case number MEGA 32369. The dispute was conciliated but remained unresolved and the matter was then referred to arbitration.

Arbitration

[5] Having analysed the evidence before him the arbitrator found that the Applicant was not guilty of gross negligence.

[6] The arbitrator further found that on evidence led and facts established the Applicant was guilty of poor work performance.

[7] After addressing the factors to be taken into account for dismissal based on poor work performance, he concluded that the third

Respondent failed to prove that Masha was properly trained.

[8] The arbitrator found that Masha’s failure to take initiative to notice the non-compliance and hence rectify it cannot be classified as gross negligence. Consequently, he found that the dismissal of the Applicant was substantively unfair.

Grounds of review

[9] In arriving at this conclusion the commissioner made a decision which a reasonable decision maker could not reach faced with similar facts in that:

9.1. The arbitrator failed to realize that the Applicant was mentored wrong in completion of the new contractor route forms:

9.2. The short service that the arbitrator used as an aggravating factor not to award reinstatement is irrelevant in this instance because this misconduct was occasioned by lack of training and experience which could have been prevented had the Applicant received proper training from the third Respondent.

9.3. The arbitrator ought to have realised that the Applicant could not have shown initiative if she believed that her work was correct. Had the Applicant received training, she would have noticed the error and showed initiative to correct same.

9.4. It was common cause that the Applicant’s mentor also completed the form incorrectly.

9.5. There was no evidence that the trust relationship was terminated and/or the employment relationship would be intolerable. The arbitrator ought to have realised that the Applicant required a chance to be trained properly.

9.10. In absence of opposition to relief reinstatement sought by the Applicant, the arbitrator acting reasonably should have granted the relief of reinstatement.

9.11. The arbitrator’s reason to award compensation contradicts his reasons from finding that the Applicant was not

guilty.

The test for review of CCMA or Council awards

[10] The test for review of arbitration is now accepted as the one enunciated in the well-known case of Sidumo and Another v. Rustenburg Platinum Mines Limited and Others 2008 (2) SA 24 (CC) decision. In this case the Court held that the review grounds set out in section 145 have been suffused by the constitutional standard of reasonableness, and that an arbitration award of the CCMA or Council is reviewable if the decision reached by the commissioner was one that a reasonable decision-maker could not reach.

[11] In Sidumo, Ncgobo J, as he then was, was of the view that although the provisions of Section 145 of the LRA have been suffused by the Constitutional standard of a reasonable decision maker, a litigant who wishes to challenge the arbitration award under Section 145(2) must found his or her cause of action on one or more of these grounds of review.

[12] Regarding gross irregularity as a ground of review Ncgobo J said the following:

“[263] The basic principle was laid down in the often- quoted passage from Ellis v Morgan [Ellis v Morgan, Ellis v Dessan 1909 TS 576] where the court said:

“But an irregularity in proceedings does not mean an incorrect judgment; it refers not to the result, but to the methods of a trial, such as for example, some highhanded or mistaken action which has prevented the aggrieved party from having his case fully and fairly determined”

[13] The Court went further to say that:

“In Goldfields [Goldfield investments LTD and Another v City Council of Johannesburg and Another 1938 TPD 551], Schneider J distinguished between patent irregularity that is, those irregularities that take place openly as part of the conduct of the proceedings, on the one hand, and ‘latent irregularities’’, that is, irregularities that take place inside the mind of the judicial officer, which are only ascertainable from the reasons given on the decision maker. In the case of latent irregularities one looks at the reasons not to determine whether the results is correct but to determine whether a gross irregularity occurred during the proceedings. In both cases, it is not necessary to show intentional arbitrariness of conduct or any conscious denial of justice……”

[14] This view was adopted in a number of cases. For example in the case of In Southern Sun Hotel Internationals (PTY) LTD v Commission for Conciliation, Mediation and Arbitration & Others [2010] 31 ILJ 452(LC), the Court acknowledged the test for review of Commissioner’s award as enunciated in the Sidumo decision (reasonable decision maker test) but said the following:

1. “Section 145 of the Act clearly invites a scrutiny of the process by which the result of an arbitration proceedings was achieved, and a right to intervene if the Commissioner’s process related to conduct is found wanting. Of course, reasonableness is not irrelevant to this inquiry – the reasonableness requirement is relevant to both process and outcome”.

b. Further that the Court In the case of Herholdt v.Nedbank LTD (701/2012) [2013] ZASCA 97; [2013] 11 BLLR 1074 SCA; (2013)34 ILJ 2795 SCA 5 September 2013, the court summarised the test as enunciated in the Sidumo case and as also as interpreted in the cases such as Gaga v. Anglo Platinum Ltd and others(JA44/40) [2011] ZALAC 29; [2012] 3 BLLR 285 (LAC) (20 October 2011,Afrox Healthcare Ltd. v.CCMA and Others (JA37/09)[2012] ZALAC 2; [2012] 7 BLLR 649(LAC) (2012) 33 ILJ 1381 (LAC) (28 February 2012),Herholdt v. Nedbank Ltd [2012] 9 BLLR.857 (LAC) and Fidelity Cash Management Services v.CCMA and

Others( DA 10/05) [2007] ZALAC 12; [2008] 3 BLLR 197 (LAC) (5 December 2007) as follows:

“In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the

proceedings falls within one of the grounds in section 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by section 145(2)(a)(ii), the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. A result will only be unreasonable

if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.”

Evaluation

[15] In this matter the Applicant, Ruth Masha was charged of gross negligence as properly captured in preceding paragraphs. She was not found guilty of the charge against her.

[16] He then concluded that the dismissal on a charge of gross negligence was unfair.

[17] After assessing the evidence before him, the commissioner concluded that the evidence points to poor work performance rather that gross negligence. As a consequence he concluded that the Applicant was guilty of poor work performance.

[18] The Applicant prayed for reinstatement. The commissioner examined factors placed before him and concluded that reinstatement would not be an appropriate remedy in the circumstances as the employer-employee relationship had been irretrievably broken down and awarded compensation of 3 months to the Applicant.

[19] It is this decision that is sought to be reviewed and set aside. The Applicant contents that in arriving at this conclusion, the commissioner reached at a conclusion that a reasonable commissioner could not reach.

[20] I must say from the onset that once the commissioner arrived at a finding of not guilty on the charge preferred against the Applicant he need not do more other than to determine an appropriate remedy for him. Once he flirted with a finding on poor work performance, a charge not preferred against the employee he was entering the murky waters, of exceeding his power. This is what the commissioner did.

[21] When the commissioner dealt with poor work performance and made a guilty finding and thereafter considering factors that need to be taken into account in determining an appropriate remedy for poor performance , can it be said that he understood the nature of the enquiry before him? I do not think so. I say this because the nature of the misconduct or poor work performance and surrounding

circumstances are important factors to be taken into account in determining the appropriate remedy. When one is determining an

appropriate remedy for a wrong enquiry, in this case poor work performance, instead of on dealing with a not guilty finding on a gross negligence, can one reach a reasonable decision? I do not think so. One cannot pursue a wrong enquiry and end up with a reasonable decision. There is clearly a disconnection between the two.

[22] Supposing the commissioner pursuit correct enquiry, and had powers to find the Applicant guilty of poor work performance, was the failure to reinstate and award compensation to the Applicant a decision a reasonable decision maker could not reach?

[23] The main complaint by the Applicant is that no evidence was led to show that the employer-employee relationship between the Applicant and the employer was irretrievably broken down and hence, the reinstatement was an appropriate remedy in the circumstances.

[24] On the other hand the Respondent however, argued that such evidence was led at the arbitration hearing. This consisted of evidence by Ms Bosch to the effect that the Applicant despite having being told to ensure that all route forms were signed before recruiting employees, she failed to do that. This according to the Respondent shows that the Applicant cannot be trusted-See paragraph 32 and 33 of the Respondent’s answering affidavit.

[25] The commissioner dealt with this matter as follows: at page 50 of the index to record of proceedings:

“The Applicant stated that if I were to find in her favour she wished to be reinstated. Reinstatement is not practical in the matter at hand. The Applicant had a short service. The dismissal was over a year ago. The Applicant showed little initiative in the period she was employed.”

[26] Other than the above there is no specific evidence that was led to show that the trust relationship between the Applicant and the Respondent had irretrievably broken down and therefore not practical to reinstate the employee.

[27] It is not wrong for the commissioner to make inference from evidence to conclude that the trust relationship has broken down. What is unreasonable is taking into account irrelevant factors in determining the issue. In our instance short service and the fact that the dismissal is over a year have nothing to do with the trust relationship. Further that no evidence was led to show why these factors make it impractical to reinstate the Applicant. The fact that the Applicant showed little initiative in period she was employed ignores the fact that the commissioner himself concluded that the Applicant was not properly trained. If one is not properly trained and believed that what she was doing was correct what initiative would she have taken? Besides that wouldn’t training alleviate the situation where the employee was not confident to do the work on his own? The purpose of training is to place the employee in a position in which he/she could be capable of independently carrying out his/her tasks. So is the purpose of following poor work performance procedure, in ensuring proper training for the employee and to give him or her time to improve. In this case the Applicant was afforded none of these.

[28] It is important to indicate that reinstatement is a primary remedy and must not be lightly taken away from the employee. This is why specific evidence of breakdown of the employer –employee relationship and impracticality of reinstatement must be led. I accept that a finding of this nature may be made even if specific evidence was not led but there are factors that are indicative of same in the award. See Mediterranean Telextile Mills (PTY) Ltd v. SACTWU & others [2012] 2 BLLR 142 (LAC) at para30. However I must make it clear that this is applicable to misconducts which in their nature are suggestive of breakdown of such relationship viz. dishonesty, theft and others. In respect of other forms of misconducts, with no such connotation, evidence needs to be led on breakdown of the relationship or impracticality of the remedy of reinstatement. The reason is that it is a primary remedy and should not be lightly taken away.

[29] Can it be said that the commissioner reached a decision a reasonable commissioner could not reach? I think so.

[30] On the basis of the above I determine that the arbitration by the second Respondent falls to be reviewed and set aside.

[31] The Applicant prayed for substitution of the relief of compensation granted in the award with an order that the applicant be reinstated retrospectively.

[32] Owing to the fact that all evidence is before me and has been laid out above I’m of the opinion that I’m in a better

position to determine the issue of the remedy for the parties. Reinstatement is a primary remedy and should be invoked if so prayed

for by the Applicant. It should be avoided where there is compelling evidence militating against it. In this case as I have indicated

above there are no compelling reasons why the Applicant should not be reinstated. In reaching the conclusion as I will do below I have taken into account that there was no clear opposition to reinstatement at the arbitration hearing.

[33] In the premise I make the following order:

a) The award issued by the second Respondent under case number MEGA 32369 dated 29 February 2012, is reviewed and set aside.

b) The relief of compensation granted in the award is substituted with an order that the Applicant be reinstated retrospectively.

c) No order as to costs is made.

_____________________

Shai AJ

Acting Judge of the Labour Court

Appearances:

For the Applicant: Advocate L M Malan

Instructed by:

Finger & Phukubje Attorneys

For the Respondent: Dion Masher