Sasol Mining (Pty) Ltd v AMCU obo Buthelezi and Others (JR1468/18) [2021] ZALCJHB 286 (2 September 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR1468/18

In the matter between:

SASOL MINING (PTY) LTD Applicant

and

AMCU OBO BUTHELEZI, THOKOZANI AND 9 OTHERS First Respondent

THE COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION Second

Respondent

COMMISSIONER R DIBDEN N.O. Third Respondent

Heard: 2 July 2021

Delivered: (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be on 02 September 2021)

JUDGMENT

DAVEY AJ

Introduction

[1] This is an opposed application to review and set aside an arbitration award (the award) made by the third respondent (the commissioner)

sitting as the commissioner in arbitration proceedings between the applicant and the first respondent. This matter came before me on 2 July 2021.

Background

[2] The employees in this matter (the dismissed employees) are members of the Association of Mineworkers and Construction Union (AMCU) and were all employed by the applicant.

[3] Employees of the applicant, including the individual respondents, embarked on a protected strike in respect of a wage dispute (the striking employees). The protected strike was marred by incidents of violence and intimidation. As a consequence of these incident and on 30 August 2016, the applicant obtained an interdict against the striking employees. AMCU consented to a final order being granted. The interdict prohibited carrying dangerous weapons in the picket.

[4] Notwithstanding the interdict, various of the striking employees, including the dismissed employees, carried sticks, knobkerries, sjamboks, among other objects, whilst in the picket, until 13 September 2016 when they were directed by the South African Polices Services (the SAPS) not to do so.

[5] Following the strike, the applicant conducted an investigation and charged all employees who were identified as having carried weapons in the picket after the issuing of the interdict with misconduct. The charges were as follows:

"Intimidation 7(e) - any act, which is perceptible or imperceptible and aimed at inducing fear on other employees to participate directly or indirectly in any form of industrial action, is intimidation and constitutes misconduct.

Disorderly conduct 6.1(b) - insubordination and related misconducts: contravenes or fails to comply with the Company's conditions of employment, agreements with trade unions, operating regulations, security measures, codes and procedures, policies, directives, company/factory notices, rules and applicable statutory requirements.

In that you failed to comply with the Company's notice (in the form of the Labour Court interdict), that ordered strikers to refrain from carrying knobkerries, dangerous weapons, including knobkerries, sticks or bricks whilst participating in the strike during the AMCU industrial action."

[6] The second charge was an alternative charge.

[7] The disciplinary hearing was scheduled to commence at 08h00 on 7 December 2016. The dismissed employees attended at the premises of the applicant for the disciplinary hearing. They were joined by Mr Patrick Ndlovu (Mr Ndlovu), an official of AMCU. Mr Ndlovu had previously applied to represent another group of striking employees at their disciplinary hearing, which application was unsuccessful.

The applicant's representative, Mr Daniel Schoeman (Mr Schoeman), informed Mr Ndlovu that he was not entitled to be present on the applicant's premises and requested that he leave. When Mr Ndlovu refused to leave, Mr Schoeman called security to escort Mr Ndlovu from the premises. When Mr Ndlovu left the premises, he was accompanied by the dismissed employees.

[8] The chairperson of the disciplinary hearing arrived late for the hearing and, by the time he arrived, the dismissed employees had left the venue and were congregating outside the applicant's premises. The dismissed employees did not return to the venue once the chairperson arrived and the disciplinary hearing continued in their absence.

[9] The chairperson found the dismissed employees guilty of the first charge, whereafter he invited the applicant to make representations in aggravation of sanction. As the dismissed employees were not present, they were not afforded an opportunity to make representations in mitigation of sanction.

[10] Following the applicant's representations in aggravation of sanction, the chairperson recommended the sanction of dismissal. The dismissed employees were then dismissed. The dismissed employees appealed against their dismissals. Their grounds for appeal were that:

10.1 they were not afforded an opportunity to present arguments in mitigation of sanction; and

10.2 there was historical and contemporaneous inconsistency.

[11] In so far as the first ground of appeal i concerned, the employees claimed that they were misled by Mr Schoeman into believing that the disciplinary hearing would not proceed due to the late arrival of the chairperson. Mr Schoeman denied this.

[12] In so far as the second ground of appeal is concerned, the dismissed employees claimed historical inconsistency in that employees who were involved in similar misconduct during a strike in 2013 were not dismissed, and contemporaneous inconsistency in that certain of the striking employees, who were involved in the strike with the dismissed employees and were also carrying sticks, knobkerries, and sjamboks, among other objects, were found not guilty of charge 1 but were found guilty of the alternative charge 2 (the other employees). The other employees were given final written warnings.

[13] The appeal was dismissed and the decision to dismiss the dismissed employees was upheld.

The award

[14] Following the arbitration, the commissioner recorded, inter alia, that the applicant failed to prove that the dismissals of the dismissed employees were procedurally and substantively fair.

[15] Mr Schoeman testified that the evidence led at the various disciplinary hearings was essentially the same and that there was no evidence presented to link the dismissed employees to specific act/s of intimidation as defined in charge 1.

[16] The crux of the dispute was that there was no credible evidence presented to make a finding of guilt against the dismissed employees either individually and/or collectively on charge 1. There was no credible evidence which directly or indirectly linked the dismissed employees to specific acts geared at specific employees to coerce those employees to join the strike.

[17] Based on an assessment of the oral evidence, the photos and videos presented at the arbitration, which were the same as the evidence

that served before the chairperson, the commissioner stated that he could not understand how the chairperson came to a different

conclusion in respect of the dismissed employees as compared to his finding in respect of the other employees. The commissioner found that the only plausible explanation was that the dismissed employees were found guilty and dismissed due to their failure to attend the disciplinary hearing.

[18] The commissioner was satisfied that the dismissed employees knew or ought to have known about the interdict.

[19] The other employees who were charged with the same offences and, on the same evidence, were found not guilty of charge 1 but guilty of charge 2. The other employees were given final written warnings.

[20] There was no evidence to show that the dismissed employees should or must be treated differently. He found that the dismissals of the dismissed employees were thus substantively unfair.

[21] The dismissals of the dismissed employees were also procedurally unfair for the following reasons:

21.1 the chairperson was late for the disciplinary hearing;

21.2 security arrived at the venue and escorted Mr Ndlovu from the premises;

21.3 the dismissed employees left the venue with Mr Ndlovu;

21.4 the dismissed employees were outside the applicant's premises when the chairperson arrived;

21.5 there was no evidence that the chairperson took steps to request that the dismissed employees address him in the disciplinary hearing or that they were given a clear ultimatum that, should they not attend the disciplinary hearing, it would proceed in their absence;

21.6 there was no evidence that the dismissed employees were informed that they had been found guilty of charge 1 and given an opportunity to provide arguments in mitigation of sanction.

21.7 The applicant was ordered to reinstate the dismissed employees and to pay back pay equal to eight months' remuneration.

Grounds of review

[22] The applicant has listed a number of grounds for review, each of which I have considered. These grounds of review are aimed at attacking the award based on claims that the commissioner:

22.1 committed misconduct in relation to his duties, alternatively committed a gross irregularity in the conduct of the proceedings, further alternatively that the award is not rationally justifiable having regard to the material properly before him; and

22.2 reached a decision that a reasonable commissioner could not have reached in the circumstances.

[23] The followings reasons were cited by the applicant to support the above grounds of review, namely that the commissioner:

23.1 made material errors of fact and/or law; and

23.2 was grossly negligent in performing his duties, alternatively exceeded his powers;

23.3 was not rationally justifiable having regard to the material properly before him.

Test for review

[24] It is trite that the test for review as formulated by the Constitutional Court is that the decision reached by the commissioner in his/her award must be one that a reasonable decision-maker could not have reached. The Court in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[1] stated:

"[79] To sum up. In t rms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances."

[25] In Herdoldt v Nedbank Ltd[2] the Supreme Court of Appeal held that:

"The Sidumo test will justify setting aside an award on review if the decision is 'entirely disconnected with the evidence' or is 'unsupported by any evidence' and involved speculation by the Commissioner.'"

[26] In Goldfields Mining South Africa (Pty) Limited (Kloof Gold Mine) v CCMA and others[3] the Labour Appeal Court (LAC) held that:

"Sidumo does not postulate a test that requires a simple evaluation of the evidence presented to the arbitrator and based on that evaluation, a determination of the reasonableness of the decision arrived at by the arbitrator. The court in Sidumo was at pains to state that arbitration awards made under the Labour Relations Act (LRA) continue to be determined in terms of s145 of the LRA but that the constitutional standard of reasonableness is 'suffused' in the application of s145 of the LRA. This implies that an application for review sought on the grounds of misconduct, gross irregularity in the conduct of the arbitration proceedings, and /or excess of powers will not lead automatically to a setting aside of the award if any of the above grounds are found to be present. In other words, in a case such as the present, where a gross irregularity in the proceedings is alleged, the enquiry is not confined to whether the arbitrator misconceived the nature of the proceedings, but extends to whether the result was unreasonable, or put another way, whether the decision that the arbitrator arrived at is one that falls in a band of decisions to which a reasonable decision-maker could come on the available material."

[27] In Quest Flexible Staffing Solutions (Pty) Ltd (a division of Adcorp Fulfilment Services (Pty) Ltd v Legobate,[4] the LAC referred with approval to the decision in Herholdt supra and held that:

"[t]he test the Labour Court is required to apply in a review of an arbitrator's award is this: 'Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?' Our courts have repeatedly stated that in order to maintain the distinction between review and appeal, an award of an arbitrator will only be set aside if both the reasons and the result are unreasonable. In determining whether the result of an arbitrator's award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrator's reasoning is found to be unreasonable, the result is, nevertheless, capable of justification for reasons other than those given by the arbitrator. This result will, however, be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator.

An award will no doubt be considered to be reasonable when there is a material connection between the evidence and the result or, put differently, when the result is reasonably supported by some evidence. Unreasonableness is, thus, the threshold for interference with an arbitrator's award on review."

[28] In Fidelity Cash Management Services v CCMA,[5] the Court held that:

"... the reasonableness or otherwise of a commissioner's decision does not depend - at least not solely - upon the reasons that the commissioner gives for the decision. In many cases the reasons which the commissioner gives for his decision, finding or award will play a role in the subsequent assessment of whether or not such decision or finding is one that a reasonable decision maker could or could not reach. However, other reasons upon which the commissioner did not rely to support his or her decision or finding but which can render the decision reasonable or unreasonable can be taken into account. This would clearly be the case where the commissioner gives reasons A, B and C in his or her award but, when one looks at the evidence and other material that was legitimately before him or her, one finds that there were reasons D, E and F upon which he did not rely that could have relied which are enough to sustain the decision."

Analysis of the evidence and the grounds of review

[29] The following factors are common cause. The striking employees, including the dismissed employees, were engaged in a protected strike. During the strike there were incidents of violence and intimidation. A court order was obtained which interdicted incidents of violence and intimidation. In addition, the court order interdicted and restrained the striking employees, including the dismissed employees, from "carrying dangerous weapons or objects, including knobkerries, sticks, bricks, bottles, stones, spears, assegais, knives, axes, bats or any other dangerous objects which are likely to cause human injury, whilst participating in the strike".

[30] Picketing rules were established on 7 September 2021. The picketing rules also provide that:

"Picketers must conduct themselves in a peaceful and lawful manner. Picketers will also not carry dangerous weapons" and "Picketers may not carry dangerous weapons (18.1) of any nature ... ".

[31] Notwithstanding the court order and the picketing rules, some of the striking employees, including the dismissed employees, continued to carry sticks, sjamboks, knobkerries, among other objects, in the picket and only ceased to do so on 13 September 2016 when so instructed by the SAPS.

[32] The dismissed employees, shop stewards, and the other employees were charged with the same charges as set out above. The dismissed employees arrived for the disciplinary hearing on 7 December 2016. The chairperson was late. The dismissed employees left the disciplinary hearing venue when Mr Ndlovu was escorted from the premises and prior to the chairperson's arrival. When the chairperson arrived at the applicant's premises, the dismissed employees had congregated outside the premises. The disciplinary hearing was held in their absence.

[33] The evidence led by the applicant at the disciplinary hearings for the dismissed employees, the shop stewards, and the other employees was the same. Nontheless, the dismissed employees and the shop stewards were found guilty of charge 1 and dismissed, whereas the other employees were found not guilty of charge 1 but guilty of charge 2, and were given final written warnings. The real distinction between the dismissed employees and the other employees was that the dismissed employees did not attend their disciplinary hearing, whereas the other employees did.

[34] The applicant argued that:

"The Individual employees contend that during the strike, other employees acted the same as they did, but received only a final written warning. It is therefore contended that the disciplinary chairperson acted inconsistently and that such inconsistency renders the dismissal of the Individual Employees unfair.

Care must be taken in these circumstances to compare apples with apples. In all other instances where employees were given final written warnings, they attended their hearings, presented their defence and eventually provided mitigating factors and sought clemency from the chairpersons. These Individual employees elected not to attend their hearing. As such, they did so at their own peril, and cannot rely on the circumstances of others to contend for inconsistent treatment of them."

[35] Although the applicant has correctly highlighted certain errors committed by the commissioner, I do not believe that these render the award reviewable. Having evaluated all evidence placed before me in this matter, I am of the view that the decision reached by the commissioner is one that a reasonable commissioner could have made in the light of the evidence before him. I am not convinced that the commissioner committed misconduct in relation to his duties as an arbitrator, that he committed a gross irregularity in the conduct of the arbitration proceedings, that he exceeded his powers, and/or that the award given by the commissioner was improperly obtained.

[36] If one has regard to the totality of the evidence and, in particular, the common cause facts, I am of the view that the award falls within a band of reasonable awards due to the following.

[37] The chairperson chaired the disciplinary hearings of both the dismissed employees and the other employees. The evidence led by the applicant at both of these disciplinary hearings was essentially the same. The chairperson stated in his finding in relation to the other employees that:

"With regard to the charge of intimidation, the employees raised a number of defences. Among others that the complainant could not show them individually or collectively intimidating anyone, that only what they see from the employer's evidence was a video of them singing revolutionary songs and just carrying their respective sticks, not dangerous weapons.

And concluded that:

"The employer's evidence with regard to pictures of the respective employee$ carrying prohibited objects, notwithstanding the court interdict and the picketing ruling, was clear and convincing. Although the employees were carrying such prohibited objects, no evidence of intimidation was proven. It was only alleged that acts of intimidation were reported. The victims thereof failed to come and present their evidence, due to the so called "fear of their safety". I evaluated evidence presented and arrived at a conclusion that the employer proved its case, relating to the charge of disorderly conduct."

(Own emphasis)

[38] I fail to understand how the chairperson could find that the dismissed employees were guilty of intimidation and therefore of charge 1 in circumstances where, on the same evidence and in respect of the same conduct, he found that there was no evidence of intimidation by the other employees and that they were thus not guilty of charge 1.

[39] The applicant contends that the different findings were justified because the other employees, who attended their disciplinary hearing, presented their defence and provided mitigating factors. It is unclear what this defence was and what mitigating factors were provided.

[40] While differing defences and mitigating factors could justify different outcomes, it does not explain the chairperson's finding that, in the absence of the applicant's leading evidence to prove intimidation, he still found that the dismissed employees were guilty of intimidation and should be dismissed.

[41] Furthermore, mitigating factors and remorse would be relevant had the chairperson found that the other employees were guilty of charge 1 but that the sanction of dismissal was not appropriate due to their specific circumstances. It does not explain a finding that the dismissed employees were guilty of charge 1 whereas the other employees were not, in circumstances where the applicant led the same evidence and the chairperson found that the applicant did not prove intimidation in respect of the other employees.

[42] The chairperson's finding in respect of the dismissed employees does not help to clarify this issue because all he states is that:

"I have to consider, or take into consideration the submissions made by the complainant, and also take into consideration the documents which were presented as evidence. I would like to indicate that reading from the testimony before me, and the seriousness of their respective conducts, it is clear that Sasol Mining proved its case on a balance of probabilities. The court order was clear to the effect that intimidation and the carrying of dangerous weapons within certain parameters from the employer's premises, or the employer's place of business were prohibited. They elected to absent themselves from the hearing today. The evidence led by the employer stands and remains unchallenged. … ". (Own emphasis)

And further:

"One will note that the conduct by the employees, the AMCU members, they fell squarely within the two charges."

[43] The chairperson did not testify at the arbitration and thus did not provide an explanation for what seems to be two contradictory

findings on his part.

[44] Although I disagree with both the chairperson's and the commissioner's findings that there was no evidence of intimidation in circumstances

where striking employees are carrying sticks, knobkerries and sjamboks, among other objects, that may be used as weapons in the

picket, I cannot find that the commissioner reached an unreasonable conclusion and/or that the award was unreasonable or not one a reasonable commissioner could reach, in circumstances where the chairperson himself finds that the other employees were not guilty of intimidation based on the same set of facts and evidence, and the Applicant accepted the chairperson's finding in this regard.

[45] I therefore find that the commissioner's finding that the dismissals of the dismissed employees were substantively unfair falls within a band of reasonable decisions and thus does not fall to be reviewed and set aside.

[46] I would like to record that this judgment should not be viewed as authority for the proposition that striking employees who carry

sticks, knobkerries and sjamboks, among other objects, that may be used as weapons in a picket, are not guilty of misconduct or

intimidation. It is a serious concern that so many strikes in South Africa are marred by acts of violence and intimidation (including

carrying objects that could be used as weapons in a picket). This conduct undermines the purpose of a picket and of strike action, and constitutes gross misconduct. I am of the view that dismissal is an appropriate sanction for such misconduct.

[47] However, I am mindful of the fact that "a reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable".[6] This is a review application and not an appeal, and it is not for this Court to set aside an award because the court or, indeed,

another commissioner (as in the case of the dispute relating to the shop stewards) would have reached a different conclusion.

[48] In light of the finding that the commissioner's finding of substantive unfairness is not reviewable, the finding regarding procedural

unfairness is academic.

[49] In the premises, the following order is made:

Order

1. The application to review and set aside the award is dismissed.

2. There is no order as to costs.

R. Davey

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Danie Pretorius

Instructed by: Fluxman

INC

For the Respondent: Nicole Musiker

Instructed by: LDA

INC

[1] 2008 (2) SA 24 (CC) at para 79.

[2] (2013) 34 ILJ 2795 (SCA) at para 13.

[3] [2007] ZALC 66; [2014] 1 BLLR 20 (LAC) at para 14.

[4] [2015] 2 BLLR 105 (LAC) paras 12 and 13.

[5] (2008) 29 ILJ 964 (LAC) para 102.

[6] Kloof Gold Mine, supra fn 3, at para 16.