NCP Chlorchem (Pty) Ltd v SACWU obo Maunatlala and Others (JR 1835/13) [2016] ZALCJHB 260 (28 June 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case No: JR 1835/13

Not Reportable

In the matter between:

NCP CHLORCHEM (PTY) LTD............................................................................................Applicant

And

SACWU OBO MAUNATLALA AND OTHERS.......................................................First Respondent

NBCCI.......................................................................................................................Second Respondent

COMMISSIONER SIBONGILE KHOZA..............................................................Third Respondent

Heard: 08 June 2016

Delivered: 28 June 2016

Summary: An opposed review application. The applicant alleges that the commissioner committed an irregularity by failing to apply mind and considering material evidence, misconcieved the nature of the enquiry, took into account irrelevant considerations and failed to consider the gravity of the misconduct. Held: (1) The award of the commissioner is not one that a reasonable commissioner cannot

arrive at (2) The review application was dismissed with costs.

Judgment

MOSHOANA, AJ

Introduction

[1] This is an opposed application to review and set aside an arbitration award in terms of which the third respondent found the dismissal of the employees to be substantively unfair and ordered the applicant to reinstate them with retrospective effect and to pay them back pay.

Background facts

[2] The employees were employed as process operators. On 12 February 2013, two incidents occurred which caused the plant to be temporarily closed. Firstly, the burner exploded and secondly there was a chlorine leak. Following that the employees on shift left the plant and handed over to the new shift at the gate as opposed to handing over in the plant as usual. Subsequently, the employees were

charged for failure to comply with standards or follow appropriate procedure relating to hand over. Following a disciplinary hearing,

the employees were dismissed on 7 March 2013. Aggrieved thereby, the first respondent referred a dispute to the second respondent. On 30 July 2013, the third respondent issued an award, which is the subject matter of this application.

Grounds of Review

[3] The applicant alleges that the award is reviewable for the following reasons:

3.1 The third respondent arrived at a decision that another commissioner faced with the same evidence could not arrive at.

3.2 The third respondent committed a gross irregularity;

3.3 She exceeded her powers;

3.4 She took into account irrelevant evidence;

3.5 Her award does not fall within the bounds of reasonableness;

3.6 She failed to apply her mind to the issues before her;

3.7 The award is flawed in relation to both process and outcome;

3.8 She failed to consider all the material facts presented to her;

3.9 She failed to examine the versions of various witnesses;

3.10 She failed to take into account relevant consideration and

3.11 Her finding on guilt and sanction is assailable.

Evaluation

[4] The attack unleashed against the award of the second respondent veiled, as review is that she was not justified to conclude that the employees were justified in not following the standard hand over procedures because the chlorine was still rampant within the premises. She accepted that the handover at the gate was appropriate given the state of the plant and the danger that it posed.

[5] In seeking to demonstrate that the award is reviewable, the applicant sought to give own analysis of the evidence of witnesses who testified before the third respondent. To my mind, the applicant was seeking to appeal as opposed to reviewing. At arbitration, it was common cause that the plant was for some time not safe to be in because of the chlorine leak. The applicant contended that the leak was contained whereafter the plant was safe. The employees on the other hand contended that up to 14h30, the plant was still unsafe, hence they handed over outside the plant.

[6] The third respondent was alive to that dispute. The employees tendered evidence of co-employees who were to commence a shift at 14h00. The evidence was to the effect that they were allowed at the plant only after 15h00. From the body of the award, it is clear that with reasons, the third respondent rejected the version of the applicant and accepted the version of the employees that chlorine was still rampant at the time at which a hand over was to occur. This approach cannot be faulted because it is consistent with the evidence presented.

[7] A commissioner, when conducting arbitration, is guided by section 138 of the LRA. A commissioner who rejects a version of one party with reasons does not commit an irregularity. With regard to previous warnings, the third respondent concluded that such does not

mean that the employees broke the rule in the circumstances where they ran for their safety. If an employee is not guilty of a

misconduct that led to his/her dismissal, it matters not that in the past, he/she was found guilty of some misconduct. The enquiry ends at the point of a not guilty finding. The third respondent could not take into account previous warnings when she made no finding of guilt.

[8] As a reviewing court, I need to ask myself a central question, is the conclusion reasonable and justifiable. If it is I cannot interfere. Quiet recently, the LAC in an unreported judgment of Ethekwini Municipality v Hadebe and Others,[1] had the following to say about the test:

‘[25] Therefore, the upshot of both Herholdt and Goldfields is that a process failure on the part of a commissioner does not in itself render an award unreasonable. In order for it to be

unreasonable, it has to be established that such failure caused the result of the award to be unreasonable. Thus, a process failure is of no consequences if the final result of the award is, nevertheless, capable of reasonable justification.’

[9] Regard being had to the award in its entirety, I do not find that award is not capable of reasonable justification. None of the grounds punted by the applicant were shown to exist. The award is free of defects. Accordingly, I am of a firm view that the award is not reviewable. It perfectly falls within the bounds of reasonableness.

Order

[13] In the results, I make the following order:

1. The application for review is dismissed.

2. The applicant to pay the costs of the application.

Moshoana, AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: Attorney S Lityi of Cliffe Decker Hofmeyer Inc, Sandton

For the First Respondent: Attorney Ramalatso of Matsobane Ramalatso Attorneys, Centurion

[1] (DA17/14) [2016] ZALAC 14 (10 May 2016) at para 25.