Transport and Allied Workers Union of South Africa v Commission for Conciliation Mediation and Arbitration and Another (JR 937/2012) [2013] ZALCJHB 233 (30 July 2013)

5

Not reportable

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

case no: JR 937/2012

In the matter between:

TRANSPORT AND ALLIED WORKERS UNION

OF SOUTH AFRICA .........................................................................................Applicant

AND

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION ...........................................................................First Respondent

TREVOR WILKENS N.O ...............................................................Second Respondent

Heard : 30 July 2013

Order : 30 July 2013

Summary: Application for review dismissed, principles restated.

JUDGMENT –REASONS FOR ORDER

AC BASSON J

[1] This was an unopposed review of an arbitration award in terms of which the arbitrator ordered the reinstatement of Mr Aphane after a finding that the dismissal was both substantively and procedurally fair. In brief the arbitrator held that because no evidence was led regarding the fact whether the employment relationship has been rendered intolerable, reinstatement was an appropriate remedy.

[2] Mr Aphane (the third respondent) was employed by the Applicant (the Transport and Allied Workers’ Union of South Africa – hereinafter referred to as “TAWUSA”) as an organiser.

[3] The applicant charged the respondent with acts of misconduct. The chairperson of the disciplinary hearing was Mr Dlamini who is also the president of the TAWUSA. He admitted in his evidence that there was no initiator at the hearing. He chaired the hearing and only informed Aphane verbally of the outcome of the disciplinary hearing.

[4] Aphane testified that he attended a shop stewards council meeting and that he had been handed several documents which related to the rumour that members employed by a company THT had asked to be clarified. The documents consisted of several letters from the Department of Labour to TAWUSA regarding the possible deregistration of the union.

[5] Aphane arranged a meeting with the employees at THT and gave them some of the documents that were handed to him. He requested the employees to read the documents themselves.

[6] Regarding his disciplinary hearing Aphane testified that he had been handed a letter informing him of the charge. He was only informed by way of an sms of the hearing. He testified that he did not have time to arrange a representative nor did he have time to prepare.

[7] Mr Ditira testified on behalf of Aphane and testified that he was the chairman of the shopstewards’ council and confirmed that he handed to Aphane and the other shopstewards the correspondence relating to the status of TAWUSA. He then asked them to disseminate the correspondence to its members and to answer questions regarding the status of TAWUSA.

[8] In essence it was the evidence of Aphane that he was not guilty of misconduct and that it was in the interest of the members of TAWUSA to be informed about the status of the union.

[9] In respect of procedural fairness the arbitrator accepted that Aphane did not receive a proper and fair hearing. The arbitrator also held that the charges were not properly formulated. The arbitrator concluded that the chairman of the hearing was not independent and that the record of the disciplinary hearing contains no reference to mitigating or aggravating circumstances. The arbitrator concluded that it was unlikely that the chairperson had considered that.

[10] In respect of the substantive fairness of the dismissal the arbitrator concluded that what is clear from the charge is the fact that Aphane was charged with fraud in that he “fraudulently advised Transport and Allied Workers Union of South Africa’s members that the name of TAWUSA has changed to Tirisano and it required of them to change”.

[11] The arbitrator found that Aphane’s evidence and that of his witness was frank and credible and that he could find no reason to conclude that the evidence was insincere. The arbitrator rejected the evidence of the witness on behalf of TAWUSA and found that the evidence was, contradictory, evasive, vague and not forthcoming”. In particular the arbitrator found that the explanation as to why Aphane was not entitled to give the letters from the Department of Labour to the individual members was particularly evasive.

[12] The arbitrator further held that it was common cause that the Department of Labour had written to TAWUSA and that it had placed TAWUSA on terms to comply with the requirements of the Labour Relations Act1 and that it had published an intention to cancel TAWUSA in the Government Gazette.

[13] The arbitrator concluded that the dismissal was unfair.

[14] The applicant raised various grounds for review in paragraph 7 of the founding affidavit. In essence it is submitted that the arbitrator did not properly evaluate the evidence before him and that it had failed to afford the applicant a proper hearing.

[15] I have considered the award against the record. I am of the view that the conclusion reached that the dismissal was substantively and procedurally unfair is reasonable. The arbitrator applied his mind to the facts and had assessed the evidence properly. The arbitrator took into account that it was common cause that TAWUSA was placed on terms by the Department of Labour and that the explanation tendered on behalf of TAWUSA as to why Aphane was not entitled to divulge the information to be unsatisfactory.

[16] In respect of the submission that Aphane was not interested in reinstatement I did request the representative on behalf of TAWUSA to direct me to the evidence and show the Court the portion of the record where Aphane had said this. He was not able to direct me to the relevant portion. In fact, the Court had the impression that the representative on behalf of the applicant did not even read the record in preparation for the hearing.

[17] Lastly, the arbitrator’s reasons for refusing the postponement are sound and I can find no reason to interfere with the decision.

[18] In the event I make the following order.

18.1 The application to review is dismissed.

18.2 There is no order as to costs.

_______________________

AC BASSON, J

Judge of the Labour Court

08 August 2013

1Act 66 of 1995.