National Union of Metalworkers South Africa and Others v Commission For Conciliation, Mediation and Arbitration and Others (JR2875/17) [2022] ZALCJHB 152 (3 June 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2875/17

In the matter between:

NATIONAL UNION OF METALWORKERS

SOUTH AFRICA

First Applicant

LYDIA DINGALIBALA

Second Applicant

DYNAH MAILA

Third Applicant

JABULANI NOPHA

Fourth Applicant

SIBONGILE SHIRINDA

Fifth Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

First Respondent

M. A. HAWYES N.O.

Second Respondent

EXCELLERATE SECURITY SERVICES (PTY) LTD Third Respondent

Heard: 26 October 2021 (Virtual Hearing)

Delivered: 26 October 2021

Reasons: 03 June 2022

REASONS FOR ORDER

MAHOSI, J

Introduction

[1] The applicant brought an application in terms of section 145 of the Labour Relations Act[1] (LRA) for an order to review and set aside the arbitration award issued by the second respondent (the commissioner) under the auspices

of the first respondent, the Commission for Conciliation, Mediation and Arbitration (the CCMA) under case number GAJB 6550/17, dated 17 November 2017.

[2] The matter served before me on 26 October 2021 and having determined the issues, I issued the following order:

‘It is ordered that:

1. The arbitration award issued by the second respondent dated 17 November 2017 under case number GAJB 6550-17 is reviewed and set aside;

2. The matter is remitted back to the first respondent for an arbitration de novo, before an arbitrator other than the second respondent;

3. There is no order as to costs.’

[3] The third respondent has requested reasons for the aforementioned order, which will follow hereunder.

Background

[4] It must be noted from the onset that there ere two mutually destructive versions relating to the facts that form the relevant background to the dispute between the parties.

[5] It was common cause that the second to fifth applicants were employed by the third respondent, as security guards. As part of their duties they would be deployed to client sites to render services as security guards. Further that on 12 January 2017, when they were deployed as spare guards on day shift duty four of them did not work full day shift and left the site early.

[6] The applicants’ version was that, the second and third applicants did not work a full shift on the day in question as they were relieved, with eight other security guards, at 17h00 by one Sihle Ngubane (Sihle), a night shift security officer. Similarly, the fourth and fifth applicants did not work a full shift either. Their site supervisor, Skhumbuzo Molefakgotla (Skhumbuzo), after making some enquiries, came to the site and relieved them from their duties in order for them to go home. Despite being given permission to leave their respective sites, on 20 January 2017 the four applicants were charged with deserting their work sites. Following disciplinary hearings, the four applicants were dismissed.

[7] The applicants’ version was completely at odds with the version of the third Respondent. According to the third Respondent, the four Applicants deserted the site without permission. When Lucas Ngwako (Ngwako) went to the sites he found it abandoned. On enquiry as to where the guards were he was informed that they had already left without being relieved from their duties. It is for this reason that the third respondent initiated disciplinary proceedings against the four applicants.

[8] Aggrieved by the third respondent's decision to dismiss them, the applicants referred an unfair dismissal dispute to the CCMA for conciliation. The matter could not be resolved through conciliation and was referred to arbitration.

Arbitration proceedings

[9] At arbitration, the Commissioner was faced with two mutually exclusive versions and having assessed the evidence, he preferred the third respondent's version and found that the dismissals of the four applicants was substantively fair.

[10] In particular, he made the following finding regarding the evidence of Lucas Ngwako:

‘I was impressed with the evidence of Ngwako. His evidence was clear and consistent and he was evidently focused on doing what his position required. It should be remembered that at the time of the arbitration no employment relationship existed between Ngwako and the Respondent. It would have been easier for Ngwako to have avoided the aggravation of testifying for his former employer. However, he came to arbitration freely and voluntarily and without the need to be subpoenaed by the Respondent to give evidence. In this regard he acquitted himself well. Ngwako came across as a calm unbiased witness and not as someone with an axe to grind.’

[11] On the issue of inconsistency of the application of discipline, the commissioner accepted Ngwako’s evidence that the applicants were the only four guards that deserted their post. As a result, he found that there was no need to determine the issue as Khumalo and Mcube’s offences were different and therefore not comparable.

[12] On the issue of sanction, the commissioner found that dismissal was warranted. The reason for his finding appears in the part of the award where stated as follows:

“Site desertion is one of the most serious forms of misconduct that a security guard can commit. Clients pay for a service and when guards desert sites early, they put their employer in breach of contract of their reciprocal obligations and open the employer to potential civil action and cancellation of the original guarding contract.”

[13] It was this arbitration award that was the subject of the review application.

Ground for review

[14] The applicant raised the following grounds on review:

“55.1 The commissioner committed a series of patent gross irregularities (equating to acts of procedural unfairness) in the respects set out above. This alone is a basis to set aside the award irrespective of the merits of the Commissioner’s decision;

55.2 The commissioner committed a series of latent gross irregularities by failing to apply his mind to materially relevant facts/considerations and committing errors of law (both of which equate to acts of dialectical unreasonableness) in the respects set out above. If the commissioner had not committed these misdirection’s and instead applied his mind to the issues he ignored, he would (or at very least may) have come to a different decision. As a result the award should be set aside on review;

55.3 the commissioner made findings that are patently unreasonable in the respects set out above, which also serve to vitiate the award.”

Applicable law and analysis

[15] The test to review an arbitration award is whether the decision is one that no reasonable arbitrator could reach and the grounds listed in section 145 (2) of the LRA. The test for review which has been stated in Sidumo and Another v Rustenburg Platinum Mines and others[2] was reiterated in Herholdt v Nedbank Limited[3] 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 in one of the grounds of section 145(2)(a) of the Labour Relations Act. For a defect in the conduct of the proceedings to amount to gross irregularity as contemplated by section 145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry 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 attached to a particular fact are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if the effect is to render the outcome unreasonable.”

[16] The test is therefore whether the decision reached by the arbitrator is one that a reasonable decision-maker could reach. The court’s approach to a review application should not be piecemeal. The question is whether on the evidence before the commissioner, the decision reached by the commissioner is one that fits into the bands of reasonableness.

[17] The Court in Assmang Limited (Assmang Chrome Dwarsrivier Mine) v Commission for Conciliation, Mediation and Arbitration and others[4] found one of the duties of a commissioner, when faced with mutually destructive versions is to not only look at the credibility of the witness but also the probabilities as well[5]. Further in the matter of Satani v Department of Education, Western Cape and Others[6] the Court re-iterated that not all inconsistencies and errors made by a witness affects that witness’ credibility. The trier of fact ought to look at the evidence as a whole and determine the probabilities.

[18] In the current matter, the commissioner found that as there were inconsistencies in the evidence of Lydia and Dinah, their version should be rejected. The commissioner failed to take into account corroborating evidence and further places inferential weight on the fact that the witness for the applicant was subpoenaed whereas the witness for third respondent was a better witness on the simple fact that he had come freely to the arbitration. In doing so, he committed a gross irregularity. Should inferential weight be placed on a mechanism placed in the rules for the parties to use, then parties would be weary to subpoena witnesses due to the fact that they would start the race already on the backfoot. This cannot be so.

[19] Further, the commissioner accepted Ngwako’s version and failed to undertake an enquiry into the inconsistent application of discipline, despite the objective fact that the occurrence book clearly showed that there were eight other security guards that were relieved by Sihle on the day in question.

[20] On a full reading of the record and in light of the above, the applicant succeeded in making out a case that the commissioner’s decision was unreasonable and that he committed a gross irregularity in that he misconstrued the nature of the inquiry and disregarded material evidence.

[21] Turning now to the issue of substitution of the award, I found that based on the material before me and in keeping with the tenet of fairness, the matter should be remitted to the CCMA for a hearing de novo.

Costs

[22] With regards to costs, I took the view that the requirements of law and fairness dictate that there should be no order as to costs.

[23] It was for these reasons that the order in paragraph two above was made.

_________________

D Mahosi

Judge of the Labour Court of South Africa

Appearances

For the applicants:

Ms. Chetty of Serena Chetty Incorporated Attorneys

For the third respondent: Mr. Levin of Clifford Levin Incorporated Attorneys

[1] Act 66 of 1995, as amended.

[2] [2007] 12 BLLR 1097 (CC).

[3] [2013] 11 BLLR 1074 (SCA) at para 25.

[4] [2015] 6 BLLR 589 (LC)

[5] See: Stellenbosch Farmers' Winery Group Ltd and Another V Martell et cie and Others 2003 (1) SA 11 (SCA)

[6] (2016) 37 ILJ 2298 (LAC).