South African Broadcasting Corporation SOC Ltd v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (JR2218/12) [2014] ZALCJHB 520 (4 December 2014)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO: JR2218/12

DATE: 04 DECEMBER 2014

In the matter between:

SOUTH AFRICAN BROADCASTING CORPORATION SOC LTD...............Applicant

And

COMMISSION FOR CONCILIATION,

MEDIATION & ARBITRATION (“CCMA”).......................................First Respondent

GLEN CORMACK N.O......................................................................Second Respondent

HOSEA JIYANE.....................................................................................Third Respondent

EX TEMPORE JUDGMENT

STEENKAMP, J:

This is an application to have an arbitration award by Commissioner Glen Cormack, dated 29 July 2012, reviewed and set aside. It arises from the dismissal of the third respondent, Mr Hosea Jiyane, who was the Regional General Manager for Mpumalanga, based in Nelspruit, of the applicant, the SABC. His dismissal arose from four charges of misconduct. Charges 2 and 4 did not feature in the arbitration any further because the SABC’s main witness, Mr Hlaudi Motsoeneng, simply did not appear at the arbitration. The arbitrator was therefore called upon only to deal with charges 1 and 3. Those charges read as follows:

“1. Gross negligence, alternatively dereliction of duty:

In that you failed and/or neglected to exercise the requisite degree of care by ensuring that the SABC Nelspruit office building is maintained, safe and habitable to SABC employees, as well as the public.

3. Non-compliance with SABC’s collective agreement and/or practice:

It is alleged that you failed to seek permission from the General Manager: Group Employee Relations, which Department is the only channel through which communication with unions is permitted to allow the union access to the building and to address SABC staff.”

The arbitrator found that the employer had not discharged the onus to prove either of these instances of misconduct. He also ordered the SABC to reinstate the employee and to pay his costs on a party and party scale. The applicant, that is the SABC, initially sought to review the findings of the arbitrator with regards to charges 1 and 3, as well as the costs order. In his oral argument today, Mr Maserumule, who appears for the applicant, abandoned the attack on charge 3. I therefore need not deal with that any further.

The main attack is aimed at charge 1. In that regard, the arbitrator, having considered the evidence, noted that under cross-examination, the SABC’s manager for Occupational Health and Safety, Mr Louis Korkie, conceded that his report was only issued in mid-September and was not used in Jiyane’s disciplinary inquiry. However, he further stated that the building had not been in a general state of neglect when he inspected it. The offices were habitable and sufficiently safe and his repeat findings were largely concerning administrative issues. The Provincial Office was in the top four of all Provincial buildings.

There were external renovations taking place by the landlord during the audit. They were addressing issues that were “a long time coming,” including leaking roofs that needed to be addressed first before internal maintenance could take place. The Department of Labour had inspected the building and identified the lack of a scaffolding tunnel as a concern. I should add that it is common cause that the scaffolding tunnel was not the responsibility of Mr Jiyane but of the landlord.

The arbitrator further pointed out that during Korkie’s visit, there was no scaffolding in front of the building and it was safe. The scaffolding was the landlord’s responsibility as it was external. The arbitrator also noted that no disciplinary action had been instituted in any provinces other than Mpumalanga relating to health and safety standards in SABC buildings, even though some of the standards were lower than that of Mpumalanga. He also noted that Korkie agreed that in his view, nothing relating to his safety findings would have warranted dismissal. In the absence of previous progressive disciplinary outcomes, no buildings of the SABC had been closed as uninhabitable.

Against that background, the arbitrator then dealt with charge 1, and specifically the wording that the employee had failed to ensure that the office was “maintained, safe and habitable to SABC employees, as well as the public.” The arbitrator then noted that the SABC’s key witness in this regard was Korkie. “By his own evidence, he conceded that the building in question was maintained, safe and habitable. The levels of health and safety issues had actually improved from the previous audit conducted by 11% to 77% overall.”

Mr Maserumule complained that the arbitrator took too technical a view of the wording of the charge. In my view, the language is clear. The definition of the term “habitable” is a simple one. In Afrikaans, it is translated as “bewoonbaar”. The Oxford English Dictionary defines it as follows: “Fit or suitable for habitation; that can be inhabited,” and it cites this example from EF Benson: “The house … is habitable again after a period of prolonged neglect.” In the context of an office building, the word “habitable” clearly means that it is fit for employees to work in. In the case before me, the Department of Labour issued a contravention notice on the 8 June 2011. That notice simply repeated the language of the Act and the regulations. On the same day, it put some more flesh to that notice by issuing a prohibition notice that said the following:

“In terms of the powers vested in me by section 30 of the [Occupational Health & Safety Act], I hereby prohibit you from continuing or commencing with the following:

1. Using the passage behind the public toilets until the following are done:

1.1. The door has been properly fixed and guarded;

1.2. There is light in that passage;

1.3 The drainage system is cleaned; and

1.4. The electrical distribution box is properly covered.”

It is quite clear from that notice that the only portion of the building that was uninhabitable was one passage behind the public toilets and that was only the case because a door had not been properly fixed and guarded and that it was not properly lighted. It certainly did not make the building, as a whole, unsafe or uninhabitable. It is also telling that neither the Department nor the SABC ever decided to evacuate the building or to tell the employees not to enter the building, which would have been the case had it been uninhabitable and unsafe.

The letters from UASA complaining about the state of the building that Mr Maserumule referred to, were written in hyperbolic fashion and bore scant resemblance to reality. The union said that:

“We have received an urgent notification of staff concerns for their safety at the Nelspruit SABC offices, where it is alleged that the building may collapse at any time.”

As is clear from the inspection of both the Department of Labour and Mr Korkie, that is far from the truth. The union further said on the 20th July 2011:

“We have again checked with our representatives at ground zero [sic] and the sentiments expressed indicated an unwavering resolve to de-risk their wellbeing by withdrawing from an unsafe environment.”

It is clear that the neither the Department of Labour, nor Mr Korkie, shared the view that the employees had to “withdraw” because the building was unsafe. In fact, Mr Korkie was asked in terms during cross-examination: “When you came to the offices on the 14 and 15 July, were the offices in such a state that it was not habitable, safe for work or for people to enter that building?,” and his answer was: “No, it was not in that state, it was habitable for people to work in.” His answer could hardly have been clearer. Mr Korkie is again asked with regard to his report: “It does not state in any way that the building is unsafe for the people inside the building?” and his answer is: “It does not say that.”

Confronted with that concession by the SABC’s own witness, the arbitrator, not surprisingly, came to the conclusion that the employer had not discharged the onus of showing that the employee had committed the misconduct complained of by not ensuring that the building is maintained, safe and habitable. It is in that light that the test for review must be considered. That test is by now trite. It is set out in Sidumo v Rustenburg Platinum Mines (2007) 28 ILJ 2405 (CC) and in Herholdt v Nedbank Ltd [2013] 11 BLLR 1074 (SCA), which overturned in very clear terms the Labour Appeal Court judgment that Mr Maserumule relied upon in his heads of argument.

The Labour Appeal Court subsequently in Goldfields Mining SA (Pty) Ltd v CCMA [2007] ZALC 66; [2014] 1 BLLR 20 (LAC) very usefully set out the relevant test in paragraph 20. I will consider the application for review against that test. The LAC said:

“The questions to ask are these:

1. In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute?

2. Did the arbitrator identify the dispute he or she was required to arbitrate?

3. Did the arbitrator understand the nature of the dispute he or she was required to arbitrate?

4. Did he or she deal with the substantial merits of the dispute?

5. Is the arbitrator’s decision one that another decision maker could reasonably have arrived at, based on the evidence?”

In the case before me, the arbitrator clearly gave the parties a full opportunity to have their say. The SABC did not bring all the witnesses it intended to, through no fault of the employee. The only criticism raised in regard to having both parties a say goes to the question of costs. As I have noted, the arbitrator awarded costs in favour of the employee in the following context. He says:

“The applicant party [i.e. the employee], has called for costs to be ordered in his favour given the unfairness of the dismissal. These costs are called on to include the two days set aside to hear the evidence of the respondent’s [i.e. SABC’s] witnesses, that did not avail themselves for the same [sic].

Even in the absence of a finding of procedural unfairness, the arrogance showed by the respondent by having proceeded with its defence of this matter in the absence of evidence of breach of the rules or standards with which the applicant was charged speaks to a total disregard for the rights of employees to fair labour practices. This disregard is extreme when the 29 years of service by the applicant to the respondent is taken into regard.

The prayer for costs is successful and the respondent is to pay costs to the applicant on a party to party basis, including the two days of the arbitration set down for the respondent’s witnesses that failed to avail themselves.”

In this case, the parties agreed to submit argument by way of written heads of argument rather than oral argument at the end of the arbitration. It is in that context that the employee’s representative asked for costs and in which the arbitrator considered it. The employer complains that it did not have an opportunity to address that issue. Although it may have been preferable for the arbitrator to draw the employer’s attention to the fact that the employee had asked for costs, that in itself is not a reviewable irregularity.

An arbitrator in the CCMA is enjoined to deal with a case with the minimum of legal formalities. In this case, both parties agreed that they would submit written heads of argument. It was open to either party or both parties to address the issue of costs in those arguments. The CCMA does have the discretion to order costs and that is spelled out in section 138(10) of the Labour Relations Act, No 66 of 1995, which reads:

“The Commissioner may make an order for the payment of costs according to the requirements of law and fairness in accordance with rules made by the Commission in terms of section 115(2)(A(j) and having regard to –

(a) any relevant code of good practice issued by NEDLAC in terms of section 203;

(b) any relevant guideline issued by the Commission.”

Unfortunately, when the rules of the CCMA were promulgated, it did not deal with the question of costs. All that the Act enjoins the arbitrator to do, then, is to exercise his discretion according to the requirements of law and fairness, the same as this Court does in terms of section 162 of the Act. That is exactly what the arbitrator did. That is not a reviewable irregularity.

To carry on, then, with the attack on charge 1 at the hand of the Goldfields test, the arbitrator clearly identified the dispute he or she was required to arbitrate, that is whether the employer had discharged the onus of showing that the employee’s dismissal was fair based on the charge that the employer drafted and which the employee had to answer.

The arbitrator clearly understood the nature of the dispute he was required to arbitrate and he dealt with the substantial merits of the dispute in some detail. The only remaining question is whether his decision was one that another decision maker could reasonably have arrived at based on the evidence. Confronted with the concession of the SABC’s own witness that the building was indeed safe and habitable, it was not unreasonable of the arbitrator to find that the employer had not discharged the onus of proving the contrary.

The award is not open to review. With regard to costs of this application, I take into account that the employee has had to incur significant further legal costs after a reasonable award had been granted in his favour. He should not have had to incur those costs.

ORDER

The application for review is dismissed with costs.

STEENKAMP J

APPEARANCES

APPLICANT: Puke Maserumule

THIRD RESPONDENT: Hein Gerber

Instructed by Welman attorneys.

CERTIFICATE OF VERACITY

I, the undersigned, hereby certify that, in as far as it is audible, the aforegoing is a VERBATIM transcription of the proceedings as was ordered to be transcribed by iAfrica Transcriptions and which had been recorded by Digital Court Recording Services by means of a digital recorder.

In the matter between :

SABC SOC LTD Applicant

HOSEA JIYANE Respondent

CASE NO: JR2218/12

RECORDED AT: JOHANNESBURG Court: Labour Court

Court Nr: Stenographer:

DATE OF HEARING: 4 DECEMBER 2014

ORDER TO TRANSCRIBE: Transcribe soundtrack as ordered

RECEIVED BY TRANSCRIBER ON: 12 JANUARY 2015

COMPLETED BY TRANSCRIBER ON: 13 JANUARY 2015

TRANSCRIBER: A G VAN STADEN

NUMBER OF PAGES: 12

Number of CDs: Sound via Internet: Yes

PLEASE NOTE

1. Court stenographer’s annotations incomplete.

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