Xulu v Metal And Engineering Industries Bargaining Council and Others (JR691/2005) [2007] ZALCJHB 34 (8 June 2007)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NUMBER: JR691/2005

In the matter between:

XULU, MBUYISENI

Applicant

and

METAL AND ENGINEERING INDUSTRIES

BARGAINING COUNCIL First

Respondent

STEMMET J, N.O

Second

Respondent

HIGH DUTY CASTING CC

Third

Respondent

JUDGEMENT

NGALWANA AJ

Introduction

[1] This is a review application for the setting aside of the second respondent’s decision sitting as arbitrator under the first respondent’s auspices.

[2] On 16 February 2005 the second respondent made an award in which he found that the applicant had resigned voluntarily from the third respondent’s employ and thus that he was not entitled to the relief he sought, namely, re-instatement and payment of salary retrospectively to date of alleged unfair dismissal. He made this finding based on his understanding of the evidence led at the arbitration hearing. I deal with the basis for the finding later.

[3] The applicant had referred an unfair dismissal dispute against the third respondent under section 191(5) of the Labour Relations Act, 66 of 1995 (“the Act”) to the first respondent following failure of attempts at conciliation. The allegation was that the third respondent had on 25 June 2004 procedurally and substantively unfairly dismissed him verbally for a cause unknown to him.

Factual background

[4] The relevant factual background is apparent from the papers and the transcribed record of arbitration proceedings and can be summarised thus. The applicant started working for the third respondent in January 1996. He alleges that he was dismissed on 25 June 2004 after eight years’ service. At the beginning of his employment he used to earn R300 per week. By June 2004 he says he was earning a fluctuating weekly salary of between R400 and R500. In other words, during some weeks he was paid R400 and in others R500. The UIF certificate, however, indicates that his weekly remuneration was R584,40.

[5] He says the whole thing started some time in May 2004 when an old white foreman insulted him but was first to report him to Mr Pienaar (employer and member of the third respondent close corporation) as having been the one insulted by the applicant. The applicant was then summoned to Pienaar’s office and read the riot act to the effect that if he continued insulting the white man he would be suspended for two weeks. His protestations that he had done nothing wrong appear to have fallen on deaf ears because on 19 May 2004 he was given a sanction of a written warning for “gross insubordination to foreman”, “adopting an insolent attitude towards your superior”, [engaging in] any action detrimental to the interest of the employer” and “keeping the co-worker out of work”.

[6] Two days later, on 21 May 2004, the applicant was summoned to a disciplinary enquiry scheduled for 27 May 2004 on charges of “gross insubordination” and “swearing at fellow workers and supervisors” said to have been committed on 19 May 2004. On the day of the enquiry, he was found guilty on all charges preferred against him and suspended for a week without pay from 31 May 2004 to 7 June 2004, both days inclusive.

[7] On 1 June 2004 a Notice of Appeal against the suspension was prepared on the applicant’s behalf and apparently transmitted through to the third respondent’s offices by facsimile on 4 June 2004. In his evidence at the arbitration hearing he says he went to the third respondent’s premises with a view to serving this notice on Pienaar. Pienaar refused to accept service saying the fax had already been received and was being dealt with by the third respondent’s lawyers, SEESA (Small Enterprise Employers of South Africa). At some stage during that visit, and apparently at the gates of the third respondent, an altercation ensued between the applicant and Pienaar following which the applicant laid a charge of assault with the local police against Pienaar. This must have incensed Pienaar because on 15 June 2004 he summoned the applicant to a disciplinary enquiry scheduled for the morning of 25 June 2004 on charges of “making a false statement … on 4/6/2004”, “swearing at employer … on 4/6/2004” and “desertion since 8/6/2004”.

[8] On the date scheduled for the disciplinary enquiry, he says he was dismissed. The third respondent’s version is that the applicant signed a resignation form on 22 June 2004 thus rendering it unnecessary for the disciplinary enquiry to proceed. On 19 July 2004, an appeal against the applicant’s alleged dismissal was noted with the third respondent suggesting 27 July 2004 for a hearing of the appeal. The third respondent referred the appeal notice to SEESA which in its letter of 26 July 2004 to the applicant’s representatives said it had no record of such an appeal. From there the matter went through the first respondent’s processes culminating in this court.

The applicant’s case

[9] The applicant avers that he never had any intention of resigning. He says he is an illiterate man and that Johnny Fontuin and Dumisane Mngomezulu who are employees of the third respondent “took [his] hand and forced [him] to sign” the resignation form dated 22 June 2004 which reads in salient parts, “I Mbuyiseni is leaving my job because Mr Pienaar is abusing me. He hit me and that is the reason I’m leaving”.

[10] He seeks the review of the second respondent’s award and a remittal of the matter to the first respondent for a de novo hearing before another commissioner. He also seeks further and/or alternative relief. At the arbitration proceedings he insisted that “all I want is my moneys, all my dues that are due to me … . I cannot be in a position to work with him again, because he assaults me”. The person he is referring to is Pienaar. It is thus clear that re-instatement or re-employment is not what he is after. No order as to costs is being sought.

The third respondent’s case

[11] The third respondent insists that the applicant resigned voluntarily. It denies that he was assaulted by Pienaar or that he was forced to sign the resignation form. In the result it prays that the review application be dismissed with costs.

The court’s finding

[12] Section 145 of the Act on which the applicant relies for this review application requires the applicant to prove one of four grounds of review. These are misconduct on the arbitrator’s part in relation to his duties as an arbitrator; gross irregularity in the conduct of arbitration proceedings; ultra vires conduct by the arbitrator in the exercise of his powers and an improper obtaining of the award. On a conspectus of all the cases, however, it seems to me the permissible grounds of review are wider than those set out in section 145 of the Act and can perhaps be reduced to this: for the applicant to succeed the decision must be shown to be irrational (in the sense that it does not accord with the reasoning on which it is premised or the reasoning is so flawed as to elicit a sense of incredulity) and unjustifiable in relation to the reasons given for it (Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp NO (2002) 23 ILJ 863 (LAC) at paragraph [19]; Shoprite Checkers (Pty) Ltd v Ramdaw NO and Others (2001) 22 ILJ 1603 (LAC) at paragraph [26]; Carephone (Pty) Ltd v Marcus NO and Others (1998) 19 ILJ 1425 (LAC) at paragraph [37]; Pharmaceutical Manufacturers’ Association of SA and Others: In re Ex Parte Application of the President of the RSA and Others [2000] ZACC 1; 2000 (3) BCLR 241 (CC)). It is not the reviewing court’s task to consider whether or not the decision is correct in law as that would be an appeal (Minister of Justice and Another v Bosch NO and Others (2006) 27 ILJ 166 (LC) at paragraph [29]).

[13] On this test, I am satisfied that the second respondent’s award is susceptible to review and setting aside. First, his acceptance of the third respondent’s evidence that the applicant “wanted to resign” merely because that evidence is corroborated by three other persons who are in the third respondent’s employ loses sight of at least three things. The one is that one of the three (Sefala) nowhere testified that the applicant “wanted to resign”. In fact, his evidence-in-chief was that he was not there when Dumisane Mngomezulu wrote the words “I Mbuyiseni is leaving my job because Mr Pienaar is abusing me. He hit me and that is the reason I’m leaving”, allegedly on the applicant’s prompting. The other is that the evidence of the other two is to be treated with caution since they are both beholden to Pienaar, the employer, for their daily bread, and one of them (Fontuin) is a supervisor who may well have been one of the people in respect of whom the applicant had earlier been charged with insubordination, insolence and swearing at. The third is that it is quite clear from the applicant’s evidence at the arbitration hearing that he is an illiterate man who would not be able to verify whether Mngomezulu had indeed written what he had told him to write in Zulu, much less an English translation.

[14] The second reason why the second respondent’s award falls to be reviewed and set aside is that his conclusion that the applicant “wanted to resign” on the basis of “a notice of resignation signed by the applicant” flies in the face of the train of events that preceded this alleged eagerness to resign. Firstly, the applicant had worked for the third respondent for eight years. Why would he suddenly want to resign over an altercation with his boss? Secondly, he appealed against his week-long suspension at the beginning of June 2004. Why would he want to resign only two weeks later and throw away eight years’ uninterrupted service record in an environment where the unemployment prospects of even literate professionals in South Africa to find employment are increasingly withering away? Thirdly, he appealed against his dismissal on 19 July 2004. Why would he persist in that challenge if he wanted so desperately to resign?

[15] Third, the finding that the applicant “asked Fontuin to write out a note confirming his resignation” is simply not what transpired at all according to evidence. Fontuin ran upstairs to fetch the resignation form of his own volition. When asked under cross-examination whether the applicant had asked him to do so he was evasive and the third respondent’s representative was quick to object to the line of questioning – improperly – until the second respondent himself interjected and set the record straight in these words, “As I understood it he [that is, Fontuin] has already answered that question. He said … that Mr Xulu … didn’t tell him to go and collect the forms”.

[16] Fourth, the observation that both Mngomezulu and Fontuin had “confirmed that the applicant had signed the note”, loses sight of the applicant’s illiteracy which he pleaded almost throughout the arbitration proceedings, in circumstances where not once had the second respondent questioned the applicant’s illiteracy. It also does not take account of the fact that every other document to which reference was made at the arbitration hearing requiring the applicant’s signature bears his thumb-print and/or an “X”, clearly indicating that he cannot write or sign his name. His 31 May 2004 notice of appeal against his week-long suspension without pay displays his thumb-print as his signature; so does his unfair dismissal dispute referral of 20 July 2004 to the first respondent. On the attendance register of 18 November 2004 at the arbitration hearing before the second respondent, the applicant’s attendance is indicated with an “X” where other attendees had appended their signatures next to their names. The applicant’s undisputed illiteracy and the fact that nowhere had he demonstrated

that he could write his name should have triggered a warning signal in the second respondent’s mind. Instead he took the

“signature” on a resignation form attributed to the applicant by persons with a clear and demonstrable interest in

massaging evidence to suit their employer’s case at face value.

[17] Fifth, the conclusion that “there was no reason why [Mngomezulu and Fontuin] would force [the applicant] to resign or to sign any document against his will” beggars belief in the circumstances of this case.

[18] Sixth, the observation that the applicant resigned because he “probably did not want to go ahead with the [disciplinary] hearing [scheduled for 25 June 2004]” simply has no basis whatsoever in the light of the evidence before the second respondent. The second respondent offers no basis for this speculative statement. The applicant’s lodging of an appeal against his suspension as a conceivable answer to the second respondent’s speculation is dismissed out of hand simply by “he probably decided not to proceed with the matter”. This is simply irrational in my view and flies in the face of clear and undisputed evidence.

[19] Seventh, the second respondent’s finding that “[t]here is no indication that the applicant had expressed any objection to signing the resignation form or that he had an objection to the contents” again ignores the applicant’s uncontested evidence that he is an illiterate man who had a thumb-print for a signature. How was he supposed to object to contents of a document he had no idea what they were? This finding also demonstrates the second respondent’s ready acceptance of the third respondent’s version without question even in the face of contrary and uncontested evidence by the applicant.

[20] On the whole, the second respondent’s conclusions are simply not justifiable and rational in relation to the evidence led at the arbitration hearing and thus the award falls to be reviewed and set aside.

[21] The applicant sought no order as to costs and so no such order will be made.

[22] The order of this court is thus as follows:

[a] The award of the second respondent dated 16 February 2005 is hereby reviewed and set aside;

[b] The matter is referred back to the first respondent for a de novo consideration before a different commissioner;

[c] No order is made as to costs.

____________________

Ngalwana AJ

Appearances

For the applicant: Mr E Luthuli

Instructed by: United People’s Union of South Africa

For the third respondent: Ms C Prinsloo

Instructed by: Fred Vogel Attorneys

Date of hearing: 05 June 2007

Date of judgment: 08 June 2007