NUMSA obo Mamakeli v Commission for Conciliation Mediation and Arbitration and Others (PR86/22) [2024] ZALCPE 2 (17 February 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

CASE NO: PR86/22

In the matter between:

NUMSA obo MANDISI MAMAKELI

Applicant

And

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION

First Respondent

ANTONIO MOODLEY N.O

Second Respondent

GOOD YEAR SOUTH AFRICA (PTY) LTD

Third Respondent

Heard: 24 August 2023

Delivered: This judgment was handed down electronically by circulation to the Applicant’s and Third Respondent’s Legal Representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing - down is deemed to be 15h30 on 17 February 2024.

JUDGMENT

LALLIE, J

[1] The individual applicant was employed by the third respondent, a tyre manufacturer in October 2014 until he was dismissed for misconduct on 04 September 2019. On dismissal he was a multi bead winder operator. His main responsibilities included checking the production of the beads at set intervals to ensure that they met the third respondent’s specifications. The proper performance of his duties therefore was critical because the bead is an integral component in the manufacturing of a safe tyre. After his dismissal, the applicant trade union, NUMSA, referred an unfair dismissal dispute on his behalf to the first respondent, the Commission for Conciliation, Mediation and Arbitration (the CCMA). The dispute was not resolved at the conciliation stage and the CCMA scheduled it for arbitration by the second respondent who will be referred to as the commissioner in this judgment. After arbitrating the dispute, the commissioner issued an arbitration award in which he found the individual applicant’s dismissal fair. In this

application the applicant seeks an order reviewing and setting the arbitration award aside. The application is opposed by the third

respondent.

[2] In terms of section 145 (1) of the Labour Relations Act[1] (the LRA) the applicant should have filed this application within six weeks of the service of the arbitration award. The applicant delayed and filed an application for condonation of its late filing. The condonation application is unopposed. I have considered it and noted that the delay is not excessive, it did not prejudice the third respondent, and that the applicant provided a reasonable explanation for the lateness. I am therefore satisfied that the applicant has shown good cause to have non-compliance with the provisions of section 145 (1) of the LRA excused. The application for condonation must therefore succeed.

[3] The factual background to this dispute is that during June 2019 the individual applicant was operating the multi-bead winder machine. During night shift the machine is operated by a single operator whose main duty is to manufacture the beads that form part of the components used to manufacture tyres. The third respondent discovered that about 1200 tyres were defective because the beads did not comply with set specifications. The tyres had to be scrapped. An investigation conducted by the third respondent suggested that the individual applicant was responsible for manufacturing the defective beads. On 14 June 2019, the third respondent issued the individual applicant with a disciplinary notice to attend a disciplinary inquiry and answer to the following allegations:

“1. Performance of work of an unacceptable standard with regards to quality in that you ran Scrap beads that were out of weight

specification.

2. Non- compliance with established procedures in that you failed to do the required checks during your run and subsequently did not complete the required check sheet.

The above offences have led to 3 sizes (W 201, W154, W801) + 1200 defect tyres being produced”.

[4] A disciplinary inquiry constituted against the individual applicant found him guilty of the charges and he was dismissed on 04 September 2019. In the process of resolving the unfair dismissal dispute the applicant had referred to the CCMA, the latter scheduled it for arbitration by the commissioner who issued the award under review. The applicant’s main grounds for review are that the commissioner committed gross irregularities in arbitrating the dispute and failed to reach a reasonable decision. The irregularities include the allegation that the commissioner ignored that Mr. Manyisana (Manyisana) failed to produce evidence in support of the allegations that the individual applicant had made himself guilty of the acts of misconduct he was dismissed for. A further irregularity was that Mr. Bezuidenhout (Bezuidenhout) also failed to tender evidence in support of the allegation that the individual applicant manufactured defective beads and failed to complete check sheets. The applicant submitted that the

commissioner irregularly ignored its evidence that the individual applicant maintained his innocence and requested evidence in support of the allegations against him. The applicant’s case was that the commissioner committed misconduct in relation to his duties as an arbitrator in reaching the decision that the individual applicant’s dismissal was fair in the absence of evidence in support of his decision.

[5] The third respondent’s basis for opposing this application is that the applicant failed to establish valid grounds for review. It expressed the view that the award falls within the bounds of reasonableness and there are therefore no reasons for this court to interfere with it. It was argued on behalf of the third respondent that even if the commissioner erred in one or more respects, and even if some of his reasons for his final decision are unsustainable, his award can only be set aside if the errors brought about an unreasonable result. In support of the argument the third respondent relied on Herholdt v Nedbank Ltd and another[2] where the court expressed the following view:

“… 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 the particular facts, are not in and of themselves sufficient for an award to be set aside but are only of consequence if their effect is to render the outcome unreasonable.”

[6] The third respondent also relied on Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and others[3] where the court referred with approval to Fidelity Cash Management Services v CCMA and others[4]. In the judgments the courts reminded the reviewing court of its obligation to consider the totality of the evidence in determining

whether the arbitrator’s decision should be reviewed and set aside. The totality of the evidence includes evidence which the arbitrator did not necessarily refer to in giving reasons for his or her final decision. It was the third respondent’s argument that the totality of the evidence tendered at arbitration supports the commissioner’s final decision.

[7] It was argued on behalf of the applicant that the commissioner committed gross irregularities in finding that the individual applicant was responsible for the production of non-compliant beads and the 1200 defective tyres and that he failed to compete the check sheets. The commissioner gave the following reasons for finding that the individual applicant had made himself guilty of the acts of misconduct which led to his dismissal:

“20. The first issue to determine is identifying who built the tyre. It could not be disputed that the tyre would get scanned at each stage of the process which is why they were able to identify who is the builder of the tyre was. Moreover, the fact that the applicant had previously received a warning for defective tyres which was not challenged as well as the evidence of Manyisana and Bezuidenhout, corroborates the evidence that the applicant was responsible for the 1200 defective tyres”.

[8] It is common cause that Manyisana who held the position of human resources business partner at the respondent testified that he was informed of the 1200 defective tyres by a equality specialist who did the checks and discovered that there were beads that were out of specification. It was argued on behalf of the applicant that when Manyisana's version was tested under cross-examination his response was that he was not familiar with the technical aspects of tyre production. He was unable to comment on the applicant’s version that the individual applicant did not produce defective beads. The quality specialist who provided the information was neither identified nor called as a witness at the arbitration. I must therefore accept the applicant’s argument that Manyisana's evidence constituted inadmissible hearsay evidence which could not be relied upon by the commissioner in reaching his decision. The commissioner erred in relying on it. The effect of the error needs to be considered in determining the reasonableness of his award.

[9] Bezuidenhout’s evidence was that the third respondent’s systems allow it to trace all the work of the employees involved in the entire production of a tyre. The systems also identify defective tyres, the nature of the defects and the employees responsible for them. It is not in dispute that the individual applicant completed the initial check sheets on reporting for duty on the day in question. Bezuidenhout submitted that because of the traceability of production, the third respondent was in possession of the information proving that the individual applicant had committed the acts of misconduct he was dismissed for. When asked under cross-examination to produce the information, his response was that he did not bring it. The third respondent’s representative insisted that it was for the individual applicant to tender evidence in support of his contention that he did not commit the misconduct. It was not in dispute that the applicant did not challenge the final written warning the individual applicant received for his non-compliance with procedures which resulted in the production of 400 defective tyres because the third respondent showed him proof of his misconduct.

[10] The third respondent’s contention that the commissioner correctly found that it could not have been expected to tender as evidence non-existent check sheets the individual applicant failed to submit is untenable. Manyisana was unable to comment when the applicant put it to him that the respondent’s system generates information showing failure to complete a check sheet. The totality of the evidence tendered at arbitration supports the applicant’s contention that the third respondent failed to tender evidence proving that the individual applicant committed the misconduct he was dismissed for. In the absence of that evidence, I must find that the commissioner committed a gross irregularity in finding the individual applicant’s dismissal substantively fair. Section 192 (2) of the LRA places the onus of proving the fairness of a dismissal on the employer party. As the third respondent failed to tender admissible evidence that the individual applicant committed the misconduct which led to his dismissal, it failed to discharge the onus of proving the substantive fairness of his dismissal. In the absence of the evidence, the commissioner had no basis for finding the dismissal fair. In Herholdt (supra) it was held that an arbitration award that is disconnected from the evidence tendered at arbitration is unreasonable. Had the commissioner not commit the error of finding that the individual applicant had made himself guilty of the misconduct in the absence of evidence, he would not have reached the decision that his dismissal was fair. The error therefore had a distorting effect on the commissioner’s decision and rendered it unreasonable. The award stands to be reviewed and set aside.

[11] I have considered the submissions raised on behalf of the applicant in its initial heads of argument as well as the third respondent’s counter argument that the new and irrelevant matter that is not based on the applicant’s papers should be disregarded. The third respondent’s argument is correct because arguments must be foreshadowed in the papers. In adjudicating this application, I only considered the applicant’s arguments that were foreshadowed in its papers.

[12] The applicant sought an order correcting the commissioner's decision. The parties filed a complete set of papers which placed me in a position to invoke the provisions of section 145 (4) of the LRA and determine the dispute. For the reasons already given, the totality of the evidence tendered at arbitration reveals that the third respondent failed to discharge the onus of proving the substantive fitness of the individual applicant’s dismissal. I could find no reasons which precluded me from ordering the primary relief for unfair dismissal that is prescribed in section 193 (1)(a) of the LRA and order the third respondent to reinstate the individual applicant.

[13] I have decided not to issue a costs order because NUMSA and the third respondent have a continuing relationship. Granting one would, in the circumstances of this case, not be appropriate.

[14] In the premises, and the following order is made:

1. The application for condonation of the late filing of the review application is granted.

2. The arbitration award issued by the second respondent under case number ECPE 6181-19 is reviewed and set aside and substituted with the following:

2.1 The dismissal of Mandisi Mamkeli by the third respondent, Good Year SA (Pty) Ltd was substantively unfair.

2.2 The third respondent, Good Year SA (Pty) Ltd is ordered to reinstate Mandisi Mamkeli with effect from the date of his dismissal.

3. There is no order as to costs.

Z. Lallie

Judge of the labour Court of South Africa

Appearances:

For the Applicant:

Advocate S. Grobler

Instructed by:

McWilliams & Elliott Inc

For the Third Respondent: Advocate F. Le Roux

Instructed by:

Chris Baker & Associates

[1] 66 of 1995 as amended.

[2] (2013) 34 ILJ at para 25.

[3] (2015) 36 ILJ 1453 LAC at para 12.

[4] [2008] 3 BLLR 197 LAC at para 102.