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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR2225/12

In the matter between:

CONTINENTAL CONVEYORS AND SYSTEMS (PTY) LTD                                      Applicant

and

NUMSA obo MALAZA ELIAS AND

YINGWANE PHINEAS                                                                                  First Respondent

METAL AND ENGINEERING INDUSTRIES

BARGAINING COUNCIL                                                                         Second Respondent

COMMISSIONER RONNIE BRACK N.O.                                                    Third Respondent

Heard:           4 April 2016

Delivered:     14 October 2016

Summary:    Review of arbitration award in terms of Section 145 of the LRA. The Arbitrator’s finding of substantively unfair dismissal reviewed and set aside. Dismissal fair. Misconduct perpetrated during protected strike action.  Arbitrator failing to have proper regard to the evidence tendered and the balance of probabilities. Intimidation and assault of non-striking employees. Fact that misconduct perpetrated in the heat of the moment during tense strike situation no excuse for unacceptable conduct. 

JUDGMENT

BEKKER AJ

Introduction

[1] This is a review application brought by the Applicant employer in terms of Section 145 of the Labour Relations Act[1] ("the LRA"), seeking to review and set aside an arbitration award issued by the Third Respondent Commissioner. The Commissioner held that the two First Respondent employees' dismissal was substantively unfair and reinstated them into the employment of the Applicant with effect from 17 September 2012, together with back-payment in the amount of R55 141.68 for Mr Malaza and R43 095.62 for Mr Yingwane.

[2] The monetary amounts awarded were equivalent to three months’ salary for each of the individual employees.

[3] The review application is opposed.

Background

[4] A disciplinary hearing was held for the two Employees on 10 August 2011 for alleged misconduct perpetrated during a protected strike action at the Applicant’s premises. 

[5] Mr Malaza was charged as follows:

‘Threatening behaviour in that you intimidated/threatened your colleagues on the 5^th day of July 2011.’

[6] Mr Yingwane was charged with the following disciplinary offence:

‘Gross misconduct.  Physically and/or verbally assaulting the workshop manager on the 5^th July 2011.’

[7] Despite both Employees’ not pleading guilty at the disciplinary hearing, both were found guilty and dismissed by the disciplinary hearing chairperson. 

[8] It was the Applicant’s case that Mr Malaza requested Mr Rautenbach (the Workshop Manager of the Applicant) on 5 July 2011 to permit him (Mr Malaza) to inspect the workshop. The purpose of the inspection was to establish the identity of non-striking employees.

[9] Mr Rautenbach allowed this inspection (at a time when the striking workforce was on the other side of the Applicant’s factory’s boundary fence). There were then two altercations between Mr Malaza and Messrs Allan and Denysschen.Messrs Allen and Denysschen were both non-striking employees of the Applicant, busy conducting their daily tasks in the workshop.

[10] What exactly transpired between Mr Malaza and Messrs Allan and Denysschen appears to be the bone of contention in casu.

[11] With regards to Mr Yingwane, the Applicant alleges that Mr Yingwane physically assaulted Mr Rautenbach on 5 July 2011.

[12] The Applicant takes issue with the Commissioner and the Employees’ interpretation of the events that ensued on the day between Mr Yingwane and Mr Rautenbach.

The Commissioner’s findings and award

[13] The Commissioner held that the dismissal of Mr Malaza was substantively unfair since Messrs Allan and Denysschen were only given warnings for their participation in the misconduct, rendering the dismissal of Mr Malaza inconsistent by referring to the Code of Good Practice: Dismissal.[2]

[14] According to the Commissioner, Mr Malaza’s dismissal was substantively unfair since the Applicant failed to present any evidence to justify the substantive fairness of the dismissal, specifically referring to the alleged inconsistency in meting out disciplinary action.

[15] The Commissioner further held (as the rationale for his finding that Messrs Allan and Denysschen were not acting in response to a threat as alleged by the Applicant at the arbitration hearing) that there was no evidence to “… show that there was a threat”.

[16] The Commissioner interprets the evidence presented at the arbitration hearing as the Employees clearly showing that it was Allan and Denysschen who provoked the Applicant employees.

[17] With regards to the dismissal of Mr Yingwane, the Commissioner found that, on the evidence presented, Mr Yingwane entered the Applicant’s premises after he witnessed Mr Malaza being attacked (ostensibly by Mr Allan). The Commissioner held further that Mr Yingwane was prevented from entering the workshop by Mr Rautenbach, who blocked the entrance of the workshop.

[18] The following was stated by the Commissioner in justifying his award of substantive unfairness pertaining to Mr Yingwane:

’When all the evidence is considered Yingwane attempted to enter the workshop and Rautenbach blocked him in all likelihood a scuffle might have occurred.  One can therefore not label this as assault, especially since the undisputed evidence was that Allan was attacking Malaza while Rautenbach did nothing about it.  In fact Rautenbach’s own evidence was that he did not see what happened between Malaza and Allan as he was concentrating on keeping Yingwane out. 

For this reason I have not been convinced but that Yingwane intentionally assaulted or verbally abused Rautenbach, as all of this happened in the heat of the moment.  Further, one also has to bear in mind that all of this was happening under strike conditions and the mood under these conditions is normally very tense unlike normal working conditions.’

[19] The Commissioner then proceeded to find that since he was of the view that the dismissal of the Respondent employees was substantively unfair, he needed not to pronounce on the procedural fairness of the dismissal.

Grounds for review

[20] The Applicant advances the following grounds for review:

20.1    That the Commissioner committed a latent gross irregularity and/or misconducted himself in that he behaved irrationally by concluding that Yingwane's assault and verbal abuse of Rautenbach was not intentional;

20.2    That the Commissioner committed a latent gross irregularity and/or misconducted himself in that he failed to properly consider the severity of Malaza's conduct;

20.3    That the Commissioner committed a latent gross irregularity and/or misconducted himself in that he placed unwarranted weight on the fact that Allan and Denysschen were not subject to disciplinary hearings;

20.4    That the Commissioner committed a latent gross irregularity and/or misconducted himself in that he reached conclusions which were not supported by the evidence placed before him;

20.5    That the Commissioner reached a decision that no reasonable decision-maker in his position could have reached;

20.6    That the Commissioner committed a latent gross irregularity and/or misconducted himself in that he failed to undertake a balanced assessment of the credibility, reliability and probabilities associated with all the evidence before him;

20.7    That the Commissioner committed a latent gross irregularity and/or misconducted himself in that he behaved irrationally by reaching at least two conclusions that were not supported by the evidence placed before him; and

20.8    That the Commissioner committed a latent gross irregularity and/or misconducted himself in that he improperly considered the Applicant's settlement offer when assessing the merits of the Applicant's case.

[21] When the matter was argued in court, counsel for the Applicant submitted that the inconsistent application of discipline was the only issue that the Commissioner raised in finding that the dismissal of Mr Malaza was unfair and that the question of inconsistency should not even come to the fore since Mr Malazi was charged at the disciplinary hearing with intimidation and not assault. It was indeed Mr Yingwane that was charged with an allegation of assault.

[22] The Commissioner reasoned that it was Messrs Denysschen and Allan who provoked the Respondent employees when holding that Mr Denysschen was observed holding Mr Malaza's sjambok in his hand (with Mr Malaza lying on the ground). This is notwithstanding the earlier contention by the Commissioner that there was no clear evidence as to what transpired between Messrs Malaza and Denysschen.

[23] The Applicant advanced argument that the record of the arbitration process indicates otherwise and that there is direct evidence as to what exactly transpired between Mr Malaza and Messrs Allan and Denysschen on the day.

[24] According to the Applicant, the Commissioner failed to take into account the fact that the Employees' testimonies were often vague and inconsistent and that, at one stage, Mr Yingwane even directly contradicted the evidence of Mr Malaza.

[25] The Commissioner (according to the Applicant) also lost sight of the evidence adduced by the Applicant that Messrs Allan and Denysschen were given warnings for any part they may have played in the misconduct.

[26] The Applicant further argued that any inference drawn by the Commissioner of alleged inconsistency in applying discipline as against Messrs Allan and Denysschen is misplaced based on the severity of Mr Malaza's conduct on the day, the appropriate sanction for such conduct and the grounds for exonerating Messrs Allan and Denysschen. The Commissioner should have given proper regard to the fact that Mr Malaza was the aggressor, engaging in intimidation, and that Messrs Allan and Denysschen were compelled to defend themselves or risk physical harm. The actions of Messrs Allan and Denysschen's reactions were reasonable and necessary given the circumstances.

[27] To find that Mr Yingwane did not "intentionally" assault Mr Rautenbach is not based on the facts presented by the parties at the arbitration process.

[28] Mr Cartwright (for the Respondent employees) submitted that it was indeed Mr Allan who brandished a "gwala" and who shouted at Mr Malaza that he would not allow Mr Malaza to kill his son (who is also an employee of the Applicant) and that he would in turn kill Mr Malaza first.

[29] There was also an allegation that Mr Allan voiced his intention to "… shoot Malaza in his private parts".

[30] According to the Employees, Mr Malaza was holding a sjambok in his hands as he approached Mr Denysschen. He was holding it in front of him and gestured with the sjambok that Mr Denysschen should give way as the walkway was too narrow. 

[31] In the Employees' Heads of Argument, it was reiterated that it is and remains the Employees' case that Mr Denysschen refused to give way. When Mr Malaza came up to him, Mr Denysschen grabbed the sjambok and at the same time pushed Mr Malaza, causing him to fall to the floor. There was thus (according to the Employees) no threat (or assault for that matter) meted out to Mr Denysschen, as alleged.

[32] The Employees are of the view that the Applicant essentially relied on hearsay evidence to incriminate Messrs Malaza and Yingwane in acts of assault and the evidence was rightfully disregarded by the Commissioner.

[33] It appears that the Employees have accepted that it is common cause between the parties that Mr Rautenbach was pushed by Mr Yingwane at the door of the warehouse.

Analysis of evidence and award

[34] The crisp issue before me is whether the conclusion reached by the Commissioner in his award (that the Employees should not have been dismissed) was a reasonable one if proper regard is had to all the evidence adduced at the arbitration hearing.

[35] If one assesses the evidence and the analysis of the evidence, it does not support the Commissioner's ultimate finding that the dismissal of the Employees was unfair.

[36] The Commissioner held that the dismissal of Mr Malaza was unfair due to inconsistent application of discipline since Messrs Allan and Denysschen were not subjected to disciplinary hearings, although the misconduct perpetrated by them were equal if not more serious than that of Mr Malaza.

[37] The evidence, however, repaints a different picture. When Mr Malaza entered the workshop, he met with Mr Allan and admitted in the arbitration hearing that mention was made of Mr Allan's son. Mr Allan had a piece of steel in his hand which he either tossed towards Mr Malaza (but missing him), or threw onto a table.

[38] It was the Applicant's case that Mr Allan was severely provoked by Mr Malaza. The undisputed evidence adduced was that Mr Malaza indeed indicated to Mr Allan that he should cease working and go outside, otherwise his son will be killed. 

[39] Mr Denysschen specifically testified that Mr Allan was not observed by him throwing the gwala towards Mr Malaza, but that he had it in his hand and threw it on a table.

[40] Even if the evidence pertaining to the incident between Mr Malaza and Mr Allan was accurately captured and assessed by the Commissioner in his award (which it patently was not), the Commissioner failed to have proper regard pertaining to the evidence of the incident between Mr Malaza and Mr Denysschen.  Mr Denysschen testified that he was approached by Mr Malaza in the factory and was hit by Mr Malaza on the neck whilst Mr Malaza told Mr Denysschen to get out of the factory.

[41] Mr Denysschen then grabbed the sjambok and told him as follows:

‘You do not hit me, I will moer you – with all due respect’.

[42] Mr Denysschen then requested Mr Malaza to apologise to him before he would hand back his sjambok, whereafter Mr Malaza apologised and was handed his sjambok by Mr Denysschen. Mr Denysschen denied that he ever assaulted Mr Malaza or threw him to the floor, as alleged.

[43] In his evidence, Mr Malaza advanced the version that Mr Denysschen, without any reason, grabbed his sjambok and pushed him to the ground.

[44] Mr Malaza testified that he was merely holding his sjambok and gestured to Mr Denysschen "… that he must get out from the way".

[45] Initially, Mr Malaza denied that a sjambok was a "dangerous thing" and alleged that it is only a "small thing". It was denied by Mr Malaza in cross-examination at the arbitration hearing that a sjambok is a weapon.

[46] Mr Malaza, in direct contradiction of his initial view, acknowledged during cross-examination that he has been hit with a sjambok before and that it hurts and that it is not nice to be hit with a sjambok and that it may indeed be viewed as a weapon.

[47] The Commissioner for some or other reason totally disregarded the evidence by Mr Malaza where he was asked that when a person walks up to you with a sjambok in his hands, what does he (Mr Malaza) think that person is going to do? Mr Malaza answered that "he will hit me with the sjambok". When Mr Yingwane testified, he stated that when a certain Daniels (a non-striking employee) came out of the factory he thought that they (the striking employees outside the factory) "were going to sjambok him". This lends credence to the evidence that the bearing of a sjambok by a person during especially strike conditions (in a factory where non-striking employees are conducting their daily business) may be viewed by the reasonable non-striking employee as a threatening gesture. This inference is certainly supported by the actual assault perpetrated by Mr Malaza on Mr Denysschen (although Mr Malaza was not charged with assault, but only with intimidation). 

[48] The Employees adduced inconsistent evidence and advanced questionable answers to questions posed during cross-examination by the Applicant. 

[49] An example of Mr Yingwane's tainted evidence was when he initially acknowledged that he was of the view that Mr Daniels will be sjambokked by the striking employees outside the factory, but then all of a sudden he could not say whether it is likely that a person may be assaulted with a sjambok during a strike and then again thereafter acknowledging that he has seen it happen before. The obvious answer to the question was in the positive. Mr Yingwane also made it clear that "… the agreement with people still outside chanting" was that Mr Daniels (if he leaves the factory) must not be punished and that the striking employees must not hit him.  "Actually he will come back and carry the flag, instead of getting sjambokked".

[50] It is apparent that the striking employees (and Mr Malaza) may have carried sjamboks also for the purpose of dealing with anyone not joining in the strike action. 

[51] There appears to be no basis for the Commissioner's rejection of Mr Denysschen's evidence that he felt intimidated by Mr Malaza brandishing a sjambok, waving it in his face and eventually hitting him with it on the neck. The same applies to the incident with Mr Allan where Mr Malaza entered the factory carrying a sjambok and approached Mr Allan in this fashion.

[52] It is so that Mr Allan should not have sworn at Mr Malaza and should not have thrown the gwala on the table and/or towards Mr Malaza. I, however, accept that this happened as a direct response to the intimidatory conduct that Mr Malaza brought about by the brandishing of a sjambok and the discussion about Mr Allan's son not joining the striking employees.

[53] The Commissioner's conclusion that the dismissal was unfair since no disciplinary hearings were held for Messrs Allan and Denysschen is also misconceived. Mr Rautenbach testified that action was taken against Mr Allan after he was called in to explain what happened. He received a verbal warning for abusive language.

[54] Although it appears that formal disciplinary hearings were not conducted for Messrs Denysschen and Allan, it should have been clear to the Commissioner that Mr Malaza's conduct was far more serious than either Mr Allan’s or Mr Denysschen's conduct on the day. It is unthinkable how the Commissioner could come to the conclusion that Mr Denysschen should also have been dismissed as a result of him defending himself against the intimidatory conduct meted out by Mr Malaza.

[55] The Commissioner furthermore made the statement that the Applicant's case (that Messrs Denysschen and Allan were acting in response to threats) was without basis as there was no evidence presented to show that there was a threat, without laying a factual basis for that conclusion.

[56] The Commissioner further (justifiably so) appears to have accepted that there was indeed an assault by Mr Yingwane on Mr Rautenbach. Since this happened in the heat of the moment (according to the Commissioner), the assault was not intentional. This conclusion makes little, if any sense. You are either assaulted or not. An incident of assault is intentional, otherwise it is not an assault. The fact that it happened under "strike conditions" and that the mood under strike conditions "is normally very tense" is no excuse for assaulting a fellow-employee (and in this case a manager).

[57] The explanation employed by Mr Yingwane that he wanted access to the premises in order to intervene in a situation where Mr Allan was allegedly assaulting Mr Malaza holds no water. The alleged incident of assault of Mr Allan on Mr Malaza was not established. The only established allegation was that Mr Allan threw a gwala towards Mr Malaza (or on a table), but only after Mr Malaza indicated to Mr Allan that he will kill his son.

[58] This alleged assault did not deter Mr Malaza from proceeding from the scene of the alleged assault towards the changing rooms of the factory, on the way threatening Mr Denysschen with his sjambok. Why must Mr Denysschen "get out of the way"? Why was it necessary for Mr Malaza to wave a sjambok in Mr Denysschen’s face and to hit him on the neck without any provocation?

[59] This type of action is totally unacceptable. For far too long, striking employees (whether participating in protected or unprotected strikes) have used the existence of strike conditions as a ticket to perpetrate the most despicable types of misconduct. There is simply no excuse for this type of behaviour.

[60] It has become a practice that employers would overlook misconduct perpetrated during strike conditions when the strike action comes to an end. More often than not where employees are charged with misconduct perpetrated during strike action, this results in more (normally unprotected) industrial action with the demand that labour will be withheld up and until such a stage where all disciplinary charges have been withdrawn against the alleged perpetrators of misconduct.

[61] There is in actual fact a greater responsibility on striking employees and their unions to behave in a proper and peaceful manner during strike action. The effect on the employer and the employees is tangible. The employer loses revenue since its business is being disrupted and the employees are deprived of earning any remuneration during the currency of the industrial action.

[62] The power-play between striking employees and their unions on the one hand and the employer on the other hand should not be unfairly and unjustly be tilted by unlawful acts or employing unlawful tactics. The same holds true where employers, for instance, would proceed to continue to lock out striking employees that embarked on protected strike action where those employees have abandoned their demands that resulted in the strike action in the first place. 

[63] For the Commissioner to employ the reasoning that the assault on Mr Rautenbach should be excused since it was perpetrated in the heat of the moment and under strike conditions, is unreasonable and not a decision that a reasonable decision-maker could reach.

[64] In National Union of Mine Workers and Another v CCMA and Others,[3] it was held that a conclusion reached by a Commissioner would not be reasonable if proper regard was not made to all the evidence adduced at the arbitration hearing. The Commissioner in the current matter failed to appreciate the significance of the common cause evidence and the fact that the Employees' evidence was full of obvious contradictions and omissions. 

[65] In Minister of Safety and Security and Another v Madikane and Others,[4] the Labour Appeal Court held that because of the test for reviews (which is different to that of appeals), a failure to weigh all the evidence and probabilities in deciding whether to draw inferences was reasonable, was not the correct approach. A failure to weigh all of the relevant evidence and probabilities in order to draw inferences and make findings cannot be said to be reasonable. The court further confirmed that it is not only wrong not to take into account all of the relevant evidence, but it is also unreasonable and clearly what a reasonable decision-maker would not do. 

[66] In the current matte,r the dismissal of Messrs Malaza and Yingwane was substantively fair. The issue pertaining to procedural fairness was not canvassed by any of the parties. This Court has the power to finally determine this matter and I am thus inclined to substitute the award with an appropriate order. I am privy to a full record of the arbitration process and see no reason why the award should not be substituted instead of remitting the matter back to the CCMA to be heard de novo.

[67] Although both parties requested that costs be awarded in favour of the successful party, this is not a matter where costs should follow the result. The First Respondent employees possessed an award in their favour and there was certainly no malice in opposing the review application brought by the Applicant.

Order:

[68] In the circumstances, I make the following order:

1.      The arbitration award issued by Commissioner Ronnie Bracks of the Metal and Engineering Industries Bargaining Council under case number MEGA34015 is reviewed and set aside.

2.      The arbitration award is substituted with an order that the dismissal of Messrs Elias Malaza and Phineas Yingwane was substantively fair.

3.      There is no order as to costs.

______________

Wilhelm Bekker

Acting Judge of the Labour Court of South Africa

APPEARANCES:

FOR THE APPLICANT:                                           Ms Lauren Salt of Baker McKenzie Attorneys

FOR THE FIRST RESPONDENT:                          Mr D Cartwright of David Cartwright Attorneys

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