National Union of Metal Workers of South Africa and Another v Moolaman and Others (JR649/13) [2014] ZALCJHB 505 (11 December 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

CASE NO JR649/13

DATE: 11 DECEMBER 2014

Not Reportable

In the matter between:

NATIONAL UNION OF METALWORKERS

OF SOUTH AFRICA...........................................................................First Applicant

EZEKIEL TAU................................................................................Second Applicant

And

JOHAN MOOLMAN......................................................................First Respondent

THE MOTOR INDUSTRY BARGAINING COUNCIL................Second Respondent

HENDRED FRUEHAUF (PTY) LTD..............................................Third Respondent

Date heard: 26 November 2014

Date delivered: 11 December 2014

VAN NIEKERK J

[1] This is an application to set aside an arbitration award made by the first respondent (the arbitrator) on 8 February 2013. In his award, the arbitrator found that the dismissal of the second applicant was procedurally and substantively fair.

[2] The second applicant was dismissed for being absent from work on 1 and 2 November 2008. It was alleged by the third respondent and denied by the second applicant that the second applicant had agreed to work overtime on those two days and that without prior notice or reason, remained on this agreement and failed to report for duty.

[3] On the evidence before the arbitrator, there were two mutually exclusive versions concerning whether or not the second applicant had agreed to work overtime on one and 2 November 2008. The arbitrator concluded that the version proffered by the third respondent was more probable. He says the following concerning the evidence of one Barnard, the third respondent’s production manager and that of the second applicant and one Zwane, a shop steward:

‘This is a classical case of two mutually destructive versions.

The test which should be applied is whether the version of the party who bears he onus, in this case the respondent, could convince the arbitrator on a balance of probabilities, that its version is true and accurate and therefore acceptable, and that the version advanced by the applicant is false and should be rejected.

The estimate of credibility of the witness will, therefore, be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours that party, then the arbitrator will accept his\its version as being probably true.

After careful consideration I have come to the conclusion that, on balance, Barnard’s evidence should prevail over that tendered by the applicant for the following reasons. It is clear that the applicant is version corroborated by Zwane that the “overtime list” was for the first time presented as evidence at the appeal hearing was untrue as it was inconsistent with the record of the disciplinary hearing.

Insofar as the display of the “overtime list” on the notice board is concerned, I find it improbable that Barnard would deviate from the normal process in this instance. There was no evidence to the effect that the applicant or Zwane had inspected the notice board or on what ground they say that the list was not displayed on the noticeboard.

It is also improbable that Barnard would deviate from the normal processing obtaining the consent of the employees to work overtime by approaching them individually and not in a group, for the simple reason that the “overtime list” shows that except for one 13 employees had agreed to work on that weekend. I am of the view that it would be impractical and time consuming to approach them individually, to say the least.

Having regard to the evidence of the applicant and Zwane, it is impossible to resist the impression that they had rehearsed the evidence and embellish the factual version for purposes of the arbitration.

I’m not convinced that Barnard had fabricated the list to create the impression that applicant had agreed to work on the weekend in question.

If it was the case on applicant’s version of individual approach he would also then have demanded that the employees give their consent in writing.

The most plausible inference is that he did not regard it is important and accepted their word a sufficient confirmation of their consent…. There is no reason for Barnard to give false evidence, especially because he’s no longer in the employ of respondent and apparently has no further allegiance to his former employer…. As a result, Barnard’s version is to be preferred to that of applicant who had a propensity to commit similar offences. Mr Barnard impressed me as an honest and credible witness who gave direct and comprehensive answers to the questions put to him.

[4] On this basis, as I have indicated, the arbitrator went on to find that the applicant was aware and had agreed to work overtime on the days concerned and that he had no acceptable reason for not informing his manager timelessly of his inability to do so. The arbitrator took into account that the second applicant was a ‘repeated offender’ and that he had a final written warning for a similar offence at the date of his dismissal. On this basis, the arbitrator concluded that the trust relationship between the second applicant and the third respondent had been damaged beyond reasonable prospects of reparation and that the second applicant’s dismissal was substantively and procedurally fair.

[5] The test to be applied is well established. This court is not entitled to intervene unless the arbitrator’s decision is so unreasonable that no reasonable person could reach that decision on the available material. Insofar as the applicant’s grounds for review (these are discussed below) contemplate a gross irregularity in the form of the arbitrator making factual assumptions and reaching conclusions on the basis of those assumptions, and on the basis of the credibility findings made by the arbitrator, it should be recalled that provided the arbitrator has dealt with the matter with the minimum of legal formalities, given the parties a full opportunity to have their say in respect of the dispute, identified the dispute to be arbitrated, understood the nature of the dispute to be arbitrated, and dealt with the substantial merits of the dispute, there is no basis for a reviewing court to intervene in so far as an applicant relies (as the applicant is due in the present instance) on conduct by the arbitrator, this is relevant only to the extent that it has the consequence of an unreasonable result. Absent that consequence, as the Supreme Court of Appeal has made clear, errors of fact, decisions as to the weight to be attached to particular evidence or not to be attached to that evidence and the like are not in themselves grounds for review. In Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 9SCA), the

LRA expressly cautioned against approaching a review on the basis that the failure by an arbitrator to consider all or some of the issues even though they materially renders the award liable to be set aside.

[6] All of the grounds for review in paragraph 12.1 to 12.7 of the applicant’s founding affidavit fall into the above category. They are not in themselves grounds for review since they concern assumptions made by the arbitrator, the weight attached to particular evidence and credibility findings made by the arbitrator. This is not an appeal - to succeed in the present application, the applicant must show that the arbitrator’s conduct had the consequence of an unreasonable outcome. To the extent that the applicant contends that the arbitrator committed an error of law in relation to him accepting the version proffered by the third respondent over that of the applicants, there is no merit in the submission. The test applied by the arbitrator to determine which of the two versions before him was the more probable cannot be called into question, nor can his application of the applicable principles. In particular, it was not the second applicant’s version during his examination in chief that it was not normal practice for Barnard to approach employees in a group or that this did not happen on the day in question. It was also not the second applicant’s version that the overtime roster containing the names of the employees, who had agreed to work overtime, was not normally put on the noticeboard. The second applicant merely testified, in essence, that his permission had not been sought and he accordingly did not agree to work overtime and that no roster had been posted on the board. The second applicant claimed for the first time in cross-examination that it was normal practice for Barnard to secure agreement with employees to work overtime on an individual basis without overtime rosters being placed on the noticeboard. Zwane’s evidence was presented after the re-examination of the second applicant and in essence what he sought to do was to support the version given by the second applicant during his cross-examination. It is difficult to avoid the conclusion that this evidence was not fabricated, particularly given the fact that the second applicant’s version was in all likelihood a fabrication that surfaced for the first time in cross-examination.

[7] To the extent that the applicants contend that the arbitrator committed a reviewable irregularity by having regard to warnings issued to the second applicant for the same or similar conduct, this evidence was clearly relevant in relation to sanction at least (the purpose for which it was employed) as it disclosed a pattern of conduct on the part of the second applicant of agreeing to work overtime and simply failing to arrive for work in terms of that agreement. In the recent matter of Gaga v Anglo Platinum Ltd and others (2012) 33 ILJ 329 (LAC), the LAC held that in the context of unfair dismissal arbitration, similar fact evidence of a pattern of behaviour or serial misconduct will often be relevant to both the probabilities of the conduct having been committed and the appropriateness of dismissal as a sanction. In this instance, the pattern of behaviour disclosed by the second applicant’s record was taken into account in the context of the determination of an appropriate sanction. As a matter of principle, on the basis of the authority to which I have referred, the commissioner was entitled to have regard to this evidence, to the extent that the applicant is contained that the arbitrator committed a reviewable irregularity in relation to the determination of an appropriate sanction, it should be recalled that it is for the commissioner to determine, on the available evidence, and having regard to the interests of both parties, what sanction is appropriate for the misconduct found to have been committed. Provided that the sanction determined by the commissioner is one that is reasonable in the sense of the test for reasonableness referred to above, this court is not entitled to interfere.

[8] In short: The commissioner’s conclusion that the second applicant was guilty of misconduct and that dismissal was an appropriate sanction for that misconduct are not decisions that are so unreasonable that no reasonable decision maker could reach them on the available evidence.

[9] In relation to costs, the first applicant and the third respondent are in a collective-bargaining relationship, and this court is traditionally reluctant to make orders for costs in those circumstances. There is no compelling reason in the present instance why they ought to be a departure from that convention. In my view, the interests of the law and fairness are best served by a ruling which would have the effect that each party bears its own costs.

For the above reasons, I make the following order:

1. The application is dismissed.

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT

APPEARANCES

For the Applicant: Mr. DO Cartwright, David Cartwright Attorneys

For the Respondent: Mr. RJC Orton, Snyman Attorneys