UASA - Union obo Fouche v Commissioner for Conciliation, Meditation and Arbitration and Others (JR119/12) [2016] ZALCJHB 312 (19 August 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 119/12

In the matter between:

UASA – THE UNION obo THOMAS FOUCHE Applicant And THE COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION First Respondent ELELWANI HLUNGWANE N.O. Second Respondent IMPALA PLATINUM LTD Third Respondent

Heard: 7 July 2016

Delivered: 19 August 2016

JUDGMENT

MORGAN, AJ

Introduction:

[1] This is an application for review in terms of Section 145 of the Labour Relations Act[1] (“the LRA”). The Applicant (referred to as either “UASA” or “Fouche”) seeks the review and setting aside of an arbitration award (“the award”) issued by the Second Respondent (“the Commissioner”) on 7 December 2011. UASA further seeks a ruling that the dismissal of Fouche from the Third Respondent (“Impala”) be declared unfair and that he be reinstated.

The events leading up to Fouche’s dismissal:

[2] Fouche was employed by Impala as a Shift Supervisor.

[3] On 1 July 2011 a physical altercation took place between Fouche and an assistant to the mine overseer by the name of Lukas Mmabe (“Mmabe”). The source of this altercation was a pen!

[4] Precisely what took place is disputed however both alleged that they were grabbed around the neck by the other. Fouche sustained an injury to his face from a glass and was stabbed in the leg with a pen.

[5] Disciplinary hearings were convened for both Mmabe and Fouche. These hearings were held on the same day being 20 July 2011. Both hearings were chaired by the same person, Gert Coetzee (“Coetzee”) – an aspect to which I shall return later.

[6] The outcome of both disciplinary hearings was dismissal – in other words both Mmabe and Fouche were dismissed.

The evidence led at arbitration:

[7] A substantial transcript, running to some 311 pages, was delivered. Impala led the evidence of three witnesses. Fouche gave evidence

himself and led a further three witnesses.

[8] I do not intend repeating the evidence led, save to point out the salient issues testified to by the witnesses.

[9] The first witness for Impala was a Mr. David Senwedi (“Senwedi”). His evidence is of significance in that he testified that he observed Fouche strangling Mmabe[2].

[10] He testified further that he observed Fouche falling onto a glass and further that Mmabe and Fouche were pushing each other[3]. He then went to call the safety representative.

[11] Senwedi was cross examined at length however his version regarding the above was generally consistent. There appears to be some question as to who entered the room first, whether Senwedi or another employee. It was also put to him whether he had seen Mmabe stab Fouche in the leg with a pen, which he testified that he had not.

[12] The second witness for Impala was Mr. Cornelius Morake (“Morake”) who testified essentially on procedural issues.

[13] The third witness was Coetzee who testified as to how the two disciplinary hearings were conducted.

[14] Impala having closed its case UASA called its witnesses commencing with Mr. Noah Mabunda (“Mabunda”) who testified that he arrived at the scene shortly after the incident and found Fouche bleeding from his right cheek.

[15] He also testified that Mmabe had admitted to him that he had hit Fouche with a glass[4] and that Mmabe had acted aggressively in the past, having assaulted someone else a few weeks prior.

[16] There is a contradiction between the evidence of Mabunda and Senwedi in that Mabunda testified that he was the first person to enter the room, while Senwedi makes the same assertion.

[17] Following Mabunda’s testimony, Fouche himself gives evidence as to what transpired.

[18] Essentially he testified that, having been refused a pen by Mmabe (who then issued pens to other employees) he entered the office where Mmabe was dispensing such pens so as to obtain the required pens himself. He was pushed back by Mmabe who then grabbed him by the neck. He took his (Mmabe’s) hand and turned him around whereupon Mmabe stabbed him in the leg with a pen. He then released Mmabe’s hand at which point Mmabe hit him in the face with a glass[5].

[19] Crucially in his evidence Fouche denies having strangled Mmabe as testified to by Senwedi[6].

[20] When probed on this aspect as to whether he had perhaps strangled Mmabi in self defence, Fouche responds with a complete denial.

[21] The third witness for Fouche was Mr. Pieter du Plessis (“du Plessis”) whose evidence was essentially related to the earlier incident of alleged assault involving Mmabe as well as the fact that at the disciplinary hearing Coetzee had not given him the opportunity to testify, holding that his evidence was irrelevant. Additionally he testified that Mmabe had approached him in an attempt to secure the withdrawal of the disciplinary charges against him by Fouche.

[22] The final witness for Fouche was Mr. Ockert Duvenhage (“Duvenhage”) who testified further as to various alleged procedural irregularities as well as the attempt by Mmabe to have the charges withdrawn.

Substantive fairness:

[23] If regard is had to the award[7] it is apparent that the commissioner considered the evidence led by the various witnesses as well as the Code of Good Practice[8].

[24] In accepting that Fouche contravened the rule against assault the Commissioner assessed the evidence of Senwedi and Fouche. This is to be expected as, apart from Mmabe who did not testify, these were the only two witnesses who gave direct evidence as to the incident.

[25] The Commissioner correctly identifies the issue in that:

The issue is whether the applicant (being Fouche) assaulted Mr. Mmabe or not, ...

[26] The issue of whether or not Mmabe also assaulted Fouche (which incidentally I accept that he did) is largely irrelevant as Fouche

has claimed neither self defence nor provocation – his defence is an almost complete denial of the application of any force against Mmabe (save for testifying that he grabbed his hand to free himself).

[27] The test as regards the Commissioner’s conduct is clearly that set out in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[9], Herholdt v Nedbank Ltd[10] as well as a number of decisions which are well known and need not be set out here.

[28] Even if this court is in disagreement with the decision reached by the commissioner, the question is whether the decision is one which a reasonable decision maker could reach on a proper consideration of all relevant evidence.

[29] I am satisfied that the Commissioner considered all relevant evidence before her, afforded such evidence the correct weight and that the conclusion she reached was one that a reasonable decision maker could reach.

[30] In preferring the version of Senwedi over Fouche she committed no reviewable irregularity nor did she, in my view, err in her assessment of the evidence.

[31] In short her finding on substantive fairness was reasonable and not tainted by any reviewable irregularity as contemplated by Section 145 of the LRA.

The procedural challenge:

[32] Fouche has raised a very specific procedural challenge in that Coetzee chaired Mmabe’s hearing before his own hearing and thus had knowledge of the incident beforehand.

[33] It is also apparent from the evidence led that Fouche did not have the opportunity of cross examining witnesses who gave evidence in Mmabe’s hearing – such as Senwedi.

[34] The Commissioner found that this did not amount to procedural unfairness – and of course the question on review is whether or not this was a reasonable conclusion.

[35] Much has been written over the years on the nature of a disciplinary hearing and it is useful to briefly deal with this aspect.

[36] Section 188 of the LRA provides simply that dismissals must be effected in accordance with a fair procedure. This is amplified by item 4(1) of the Code of Good Practice[11] which provides as follows:

Normally the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.

[37] In Avril Elizabeth Home for the Mentally Handicapped v the Commission for Conciliation, Mediation and Arbitration and Others[12] van Niekerk, AJ (as he then was) examined the appropriateness of the criminal justice model which is almost unquestioningly applied to disciplinary enquiries. In that matter the court found that this model is not appropriate to the workplace situation, holding that:

... there is clearly no place for formal disciplinary procedures that incorporate all of the accoutrements of a criminal trial, including the leading of witnesses, technical and complex ‘charge-sheets’, requests for particulars, the application of the rules of evidence, legal arguments, and the like.

[38] The court continued:

When the code refers to an opportunity that must be given by the employer to the employee to state a case in response to any allegations made against the employee, which need not be a formal enquiry, it means no more than that there should be dialogue and an opportunity for reflection before any decision is taken to dismiss.

[39] Despite the fact that a number of decisions[13] over the years have followed the approach endorsed in Avril Elizabeth, employers continue to implement, and employees continue to expect a criminal justice style of enquiry.

[40] More recently in BEMAWU and Others v SABC and Others[14] the court again had cause to examine the fascination with a criminal justice style of disciplinary enquiry.

[41] The court, per Steenkamp, J clearly aligned itself with Avril Elizabeth finding that a departure from the “normal” procedure in that instance would not lead to grave injustice.

[42] I concur fully with the reasoning expressed in Avril Elizabeth and the subsequent cases referred to above. A disciplinary enquiry is not, and was not intended to be, a criminal trial. This is not to say that fairness and justice are to be sacrificed for reasons of workplace expediency however the ultimate yardstick is fairness.

[43] Returning to the present matter the question is whether or not Coetzee having chaired Mmabe’s enquiry, should not have then chaired Fouche’s.

[44] While it may have been better under the circumstances to have held a joint enquiry I cannot find any evidence that unfairness resulted from Coetzee’s approach.

[45] In determining the procedural challenge the Commissioner considered all relevant evidence, assessed the evidence correctly, considered and applied the law and came to a conclusion which a reasonable decision maker could arrive at.

[46] It is my view that the finding of procedural fairness is not reviewable.

Conclusion:

[47] In light of the above it is inevitable that the review must fail and the application be dismissed.

[48] Having found that the Commissioner committed no reviewable irregularities the only outstanding question is that of costs.

[49] Specifically as far as the findings of procedural unfairness made by the Commissioner are concerned, I do not believe that UASA acted unreasonably in bringing the present application.

[50] I accordingly do not believe that they or Fouche should be saddled with a costs order.

Order:

I. The application is dismissed;

II. There is no order as to costs.

__________________

Morgan, AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

On behalf of the Applicant: Mr. George Manganyi (Union Official)

On behalf of the Respondent: Mr. Fritz Malan (Edward Nathan Sonnenbergs Inc)

[1] Act 66 of 1995 as amended

[2] Mmabe is referred to in the evidence of Senwedi as “Moost” however it was clarified that the witness was talking about Mmabe

[3] Transcript page 9, line 14 to page 10, line 11

[4] Transcript page 152, lines 12 to 16

[5] Transcript page 167 line 17 to page 168 line 14

[6] Transcript page 191 lines 1 to 13

[7] Paragraphs 7 to 27

[8] Schedule 8 to the Labour Relations Act 66 of 1995

[9] [2007] 12 BLLR 1097 (CC)

[10] [2013] 11 BLLR 1074 (SCA)

[11] Schedule 8 to the LRA

[12] (2006) 27 ILJ 1644 (LC)

[13] See for example Munnik Basson Dagama Attorneys v Commission for Conciliation, Mediation and Arbitration (2011) 32 ILJ 1169; Nitrophoska v Commission for Conciliation, Mediation and Arbitration and Others (2011) 32 ILJ 1981 (LC)

[14] Unreported judgment of the Labour Court (J2239/15, 2 March 2016)