Tanker Repair Division (Pty) Ltd v Mphaphuli NO and Others (JR950/2012) [2014] ZALCJHB 292 (29 July 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA ,JOHANNESBURG

JUDGMENT

Reportable/Not reportable

Case number: JR950/2012

In the matter between:

TANKER REPAIR DIVISION (PTY) LIMITED Applicant

and

MPHAPHULI, J N.O. First

Respondent

METAL AND ENGINEERING INDUSTRIES

BARGAINING COUNCIL (MEIBC) Second

Respondent

SIKO, A Third

Respondent

Heard: 3 July 2014

Delivered: 29 July 2014

Summary:

SHORT, A.J.

Introduction

[1] This matter relates to an application which has been launched under Section 145, alternatively, Section 158(1)(g) of the Labour Relations Act No. 66 of 1995 (hereinafter referred to as “the LRA”), for the reviewing and setting aside of an arbitration award made by the First Respondent on 30 March 2012.

Background

[2] The Applicant manufactures Petrol Tankers.

[3] The Third Respondent was employed by the Applicant as a welder.

[4] The Applicant alleges that from 2004 up to and including 2011 the Third Respondent faced numerous disciplinary enquiries as a result of the poor quality of his work.

[5] On 22 August 2011, the Third Respondent was called to a disciplinary enquiry to answer to an allegation regarding his poor quality of work and particularly his welding.

[6] A disciplinary enquiry was held on 25 August 2011 the following allegations were investigated:

6.1 failure to follow standing orders and procedures, rendering a poor quality of work and/or not working to standard;

6.2 poor welding – a repeated offence; and

6.3 breaking the trust between the employer and employee.

[7] As at the disciplinary enquiry which was held on 25 August 2011, the Applicant alleges that the Third Respondent was subject to a final written warning for poor quality of work and more particularly, failure to maintain set standards of work in respect of his welding.

[8] The Third Respondent, however, contends that whilst he did attend a disciplinary enquiry where a final written warning was mooted by the Applicant, he protested against the period of the warning. The final written warning was then never served on him.

[9] Pursuant to the disciplinary enquiry which was held on 25 August 2011, the Third Respondent was summarily dismissed as a result of him being found guilty of all the charges which were preferred against him.

[10] The Third Respondent disputed the fairness of his dismissal.

[11] The issue pertaining to the fairness or not of the Third Respondent’s dismissal was arbitrated by the First Respondent which arbitration duly took place on 15 March 2012.

[12] The First Respondent found that the Third Respondent’s dismissal was not based on a fair reason. The First Respondent

ordered the Applicant to reinstate the Third Respondent with retrospective effect to the date of his dismissal.

[13] The First Respondent further ordered the Applicant to pay the Third Respondent back pay in the amount of R45,724.80. The reinstatement

was to be effected, and the back pay was to be paid to the Third Respondent by the Applicant on or before 15 April 2012.

[14] The Applicant launched its review application on 15 May 2012.

Grounds of review

[15] The Applicant raises numerous grounds of review in its founding affidavit and also amplified such grounds in its supplementary

affidavit.

[16] Briefly, the Applicant’s review grounds can be summarised as follows:

16.1 The First Respondent committed misconduct and/or a gross irregularity and acted unreasonably in that he relied on evidence led by the Third Respondent that he was never issued with the final written warning and failed to take into consideration all of the notices to attend hearings, written warnings and the final written warning which were furnished to him.

16.2 That the First Respondent committed misconduct and/or a gross irregularity and acted unreasonably in that he referred to the working condition of the welding machine used by the Third Respondent around August 2011 as being the cause of the Third Respondent’s unacceptable welding and ignored De Bruyn’s evidence that the welding machine used by the Third Respondent was in working order.

16.3 The Applicant further contends that the First Respondent overlooked the fact that the Third Respondent had produced unacceptable welding for some time and that the quality inspector had delivered a report stating that the Third Respondent was unable to hold the welding nozzle steady and that this had resulted in the poor quality of his welding.

16.4 The First Respondent committed misconduct and/or a gross irregularity and acted unreasonably in that he stated that the Third Respondent’s version was more credible and probable than that of the Applicant.

16.5 That in not assisting the Applicant’s representative to the same degree that he assisted the Third Respondent’s representative and by badgering the Applicant’s representative, this creates a reasonable apprehension of bias on the part of the First Respondent.

Evaluation/Analysis

[17] From a reading of the First Respondent’s award, it appears that he did not accept that the Third Respondent had been issued with a final written warning regarding the quality of his work prior to the disciplinary enquiry which took place on the 25 August 2011.Whilst De Bruyn could not give any information regarding the final written warning which the Applicant alleges was in place at the time the disciplinary enquiry took place on 25 August 2011, he did state that a disciplinary enquiry was held in respect of the Third Respondent in 2011 where he testified as a witness. This evidence seems to have been ignored by the First respondent as it is not recorded in his Award and did not feature in his analysis.

[18] The final written warning in respect of which the controversy reigns appears at page 143 of the indexed papers. This warning was, according to the Applicant’s representative, Mr Venter put before the First Respondent. A reading of this final written warning indicates that it was not signed by the employee but was signed by a witness on 19 October 2010. There was no viva voce evidence led by the Applicant proving that a copy of the final written warning was handed to the Third Respondent.

[19] It further appears from a reading of the transcript that there was no dispute during the arbitration proceedings that the Third Respondent was called to a disciplinary enquiry on 15 October 2010 prior to being advised that the Applicant had issued him with a final written warning. It would appear that the First Respondent simply glossed over the evidence that there was an enquiry regarding the Third Respondents unacceptable work quality prior to the disciplinary enquiry on 25 August 2011.

[20] The First respondent does not seem to have properly applied his mind to the Third Respondent’s evidence that he believed that the period of the warning would be reduced to six (6) months. It would therefore appear that the Third Respondent was aware of the existence of the final written warning albeit that he believed it was only valid for six (6) months.

[21] From the transcript it appears that De Bruyn did give evidence that the welding machine used by the Third Respondent was in working order. More particularly, De Bruyn testified that other employees of the Applicant had also used the welding machine used by the Third Respondent and they had produced welding of an acceptable standard. The First Respondent rejects De Bruyn’s evidence and finds that the Applicant failed to prove that the welding machine used by the Third Respondent was in proper working condition, because it did not produce the service logs in respect of the welding machines. In my view there is no rational or reasonable basis for the First Respondent rejecting De Bruyn’s evidence because it was not corroborated by documentary evidence.

[22] It appears from page 31 of the transcript that De Bruyn gave evidence that the Applicant’s poor welding had to be back chipped, ground and re-worked by a certain Letando and that this took two days. It does not appear that this was challenged in the cross examination of De Bruyn by the Applicant’s representative. The First Respondent, however, rejects this evidence and finds that the Applicant failed to prove that there was any down time occasioned by another employee having to re-work the Third Respondent’s welding. This finding is at odds with the evidence and is irrational.

[23] In his award the First Respondent finds that the Third Respondent’s version was more credible and probable than that of De Bruyn. The First Respondent goes on to state that the Third Respondent’s version had the backing of a charge hand a certain Mr Mathebula who gave evidence in support of the Third Respondent’s version. From a reading of the transcript Mathebula testified that he was not sure whether the welding machine used by the Third Respondent was in good condition but merely stated that the Third Respondent had at some stage advised him that the welding machine was “giving him problems”, so he reported it to Mr Jerome Conner but never received any feedback.

[24] What is further apparent from the transcript and more particularly, page 60, is that the First Respondent questioned Mathebula,

specifically with regard to whether he knew that the welding machine had been repaired. Mathebula then stated that he was not sure.

Furthermore, from what I glean from the transcript, Mathebula gave absolutely no evidence regarding the issuing or not of a final

written warning to the Third Respondent in October 2010. In light of the aforegoing, I am of the view that Mathebula’s testimony did not corroborate the version of the Third Respondent on the material issues and there is therefore no rational basis for the First Respondent’s finding that the Third Respondent’s version was corroborated by Mathebula.

[25] In deciding whether the Applicant had proved that the dismissal of the Third Respondent was fair, I tend to agree with Mr Venter that the First Respondent appears to have gravitated towards the test applicable in criminal matters, namely, beyond reasonable doubt rather than applying the test of a balance of probability which is the test applicable in labour disputes. I say this as he appears to have rejected the evidence of De Bruyn regarding the condition of the welding machine because it was not corroborated by documentary evidence.

[26] In Herholdt v Nedbank Ltd [1] the Supreme Court of Appeal explained the test for dialectical unreasonableness as follows:

‘…For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by Section 145(2) (9)(11) the arbitrator

must have misconceived the nature of the enquiry or arrived at 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 to be attached to particular facts, are not in and of themselves sufficient for an

award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable’.

[27] In the matter Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA[2] the Labour Appeal Court held:

‘[20] The questions to ask are these:

(i) 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?

(ii) Did the arbitrator identify the dispute he [or she] was required to arbitrate? (this may in certain cases only become clear after both parties have led their evidence)

(iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate?

(iv) Did he or she deal with the substantial merits of the dispute? and

(v) Is the arbitrator’s decision one that another decision maker could reasonably have arrived at based on the evidence?

[21] Where the arbitrator fails to have regard to the material facts it is likely that he or she will fail to arrive at a reasonable decision. Where the arbitrator fails to follow proper process he or she may produce an unreasonable outcome (see Minister of Health and Another v New Clicks SA (Pty) Ltd and Others 2006 (2) SA 311 (CC)). But again, this is considered on the totality of the evidence not on a fragmented piecemeal analysis. As soon as it is done in a piecemeal fashion, the evaluation of the decision arrived at by the arbitrator assumes the form of an appeal. A fragmented analysis rather than a broad based evaluation of the totality of the evidence defeats review as a process. It follows that the argument that the failure to have regard to material facts may potentially result in a wrong decision has no place in review applications. Failure to have regard to material facts must actually defeat the constitutional imperative that the award must be rational and reasonable – there is no room for conjecture and guesswork’.

[28] With regard to the issue concerning the duty on a Commissioner to lend a helping hand to lay litigants, the legal position is as set out hereunder.

[29] In Bafokeng Rasminone Platinum Mine v Commissioner for Conciliation, Mediation and Arbitration and Others[3] the court held that:

‘In conclusion, it needs to be stated that there is a duty on arbitrators to provide guidance and assistance to lay litigants, the question of whether such duty arose and whether failure to carry it out is an irregularity rendering an award reviewable is a matter to be decided with reference to the particular circumstances of each case. Care should be taken not to straddle the fine line between legitimate intervention by an arbitrator and assistance amounting to advancing one party’s case at the expense of the other. Otherwise we would be opening the flood gates allowing every lay representative who has bungled his/her case to seek its reopening by shifting the blame to the arbitrator. At the end of the day, the cardinal question is whether the merits of the dispute have been adequately dealt with and fairly so in compliance with the provisions of s 138 of the Labour Relation Act. That question can best be answered by considering the conduct of the arbitration proceedings as a whole rather than nitpicking through every shrapnel of evidence that was considered or not considered’.

[30] In Anglo Operations Ltd (Kriel Colliery) v Commissioner for Condiliation, Mediation and Arbitration and Others[4] it was held that:

‘The question of when an arbitrator ought to lend a hand to a party in the course of arbitration proceedings, will generally be decided on a number of considerations and the respective weight attached to each consideration will vary according to the factual circumstances of each case

[31] In the present matter, Mr Venter argued that the Third Respondent should have prevailed upon Mr Wheeler, the Applicant’s

representative at the arbitration, that he believed it important for him to have produced evidence relating to the service log of the welding machines alternatively he should have called for the service log. From a reading of the record it does appear that Wheeler was not experienced in appearing at arbitrations. One of the indicators pointing to Wheeler’s inexperience with conducting an arbitration was that he took Mathebula with him to the arbitration when Mathebula was not his witness, and was not requested by the Third Respondent to be present at the arbitation Wheeler believed that all the persons who gave evidence at the enquiry had to be at the Arbitration. Having said this I, however, do not believe that there was a duty on the First Respondent to insist that Wheeler place before him the maintenance log in respect of the welding machines. The Third Respondent’s representative questioned De Bruyn regarding the working condition of the welding machine used by the Third Respondent at length. It must have been clear to Wheeler who is a manager what the Third Respondent’s version was and it appears that he chose not to call for the maintenance log when he could have done so. I however do not believe that the presentation of the maintenance log would have taken the matter any further.

[32] As a result of his flawed reasoning and irregular handling of the evidence, the First Respondent cannot be said to have properly

weighed the evidence and has made credibility Findings which are irrational. The aforementioned amounts to a gross irregularity.

[33] On a conspectus of the totality of the evidence, I do not believe that the First Respondent has adequately or properly dealt with the substantive merits of the dispute. The aforementioned conduct has the effect that the Award made by the First Respondent is not one which a reasonable Arbitrator could have reached.

[34] Whilst I have considered all the grounds of review as well as the supplementary heads of argument filed by both parties. I do not believe they take the matter any further, in light of the approach, I have adopted.

Order

[35] I do not believe that it is appropriate to award costs against the Third Respondent where the First Respondent has committed a gross irregularity. I therefore make the following order:

35.1 The award made by the First Respondent on 30 March 2012 is hereby reviewed and set aside.

35.2 The issue of the Third Respondent’s alleged unfair dismissal is remitted back to the Second Respondent for hearing De Novo by a Commissioner other than the First Respondent.

35.3 There is no order as to costs.

____________________________

SHORT,AJ.

Acting Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: Adv F. Venter

Instructed by:

Johannes De Beer Attorneys

For the Respondent: Mr. M Ngqeleni (National Union of Mineworkers)

[1] [2013] 11 BLLR 1074 (SCA) at para 25.

[2] [2014] 35 ILJ 943 (LAC) paras 20 and 21.

[3] (2006) 27 ILJ 1499 (LC) at para 17..

[4] (2014) 35 ILJ 1520 (LC) at at para 11.