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IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Reportable

CASE NO: JR 103/20

 

In the matter between:

 

GOODROCK CHEMWORKS (PTY) LTD                                     Applicant

 

and

 

COMMISSION FOR CONCILIATION MEDIATION AND             First Respondent

ARBITRATION

 

COMMISSIONER DAVID PIETERSEN N.O.                               Second Respondent

 

AMCU OBO ZWELETHEMBA MACALA                                    Third Respondent

 

Heard:                20/07/2022

Delivered:         03/08/2022

 

Summary:     Review application-whether the arbitrator’s decision not to allow the applicant to be legally represented was an error in law reviewable in terms of s 158(1)(g) of the LRA. Whether the arbitrator committed gross irregularities in relation to his duties. The arbitrator committed no gross irregularities. Held: (1) The review application is dismissed. (2) There is no order as to costs.

 

JUDGMENT

 

SETHENE AJ

 

Introduction

 

[1]          This review application is a classic case study of how an employer brazenly authored its own misfortunes. The best isiZulu description to be ascribed to the tale of the employer is that “uzigwaze ngowakhe umkhonto”[1]. Mr “Rooikoos”, an Afrikaaner farmer in the Free State, would characterise the employer’s plight by saying; “die aansoeker het sy eie steen aanstoots.”

 

[2]          Premised on ss 145 and 158(1)(g) of the Labour Relations Act 66 of 1995, (“the LRA”), as amended, Goodrock Chemworks (Pty) Ltd (“the Applicant”) seeks to review and set aside the arbitration award issued by Commissioner David Peterson (“the Commissioner/Arbitrator”), under the aegis of the Commission for Conciliation Mediation and Arbitration (“the First Respondent/Commission”).

 

[3]          The applicant’s basis for this review application is that the arbitrator’s refusal to allow it to be legally represented is bad in law. Added to that ground (legal representation), five other grounds are premised on alleged gross irregularities allegedly committed by the arbitrator. Accordingly, the applicant contends that the award stands to be reviewed and set aside. Alternatively, it must be remitted back to the First Respondent before another Commissioner. Both the First and Second Respondents have filed notice to abide.

 

[4]          The Third Respondent, Association of Mineworkers and Construction Union (AMCU) opposes this application on behalf of its member, Mr Zwelethemba Macala (Mr Macala). AMCU contends that the arbitrator committed no gross irregularities and was correct to dismiss the applicant’s application for legal representation and find that the applicant’s dismissal of Mr Macala was substantively unfair and reinstatement coupled with backpay were just and equitable remedies.

 

Salient background facts

 

[5]          The employment relationship between the applicant and Mr Macala commenced on or around 2005. In 2019, Mr Macala had been in the employ of the applicant for at least fifteen (15) years, with an unblemished disciplinary record.

 

[6]          The applicant is based in the Northern Cape and trades in processing manganese core which is mined by Assmang Black Rock Mine (“the Mine”). The applicant’s business depends entirely on the mine and employs only eighteen (18) employees. All its employees reside in the hostel owned by the mine. There is also a recreational facility (“the club”) which is used and frequented by the applicant’s and mine’s employees whenever the yearning for hedonism calls.

 

[7]          On the evening of 9 December 2017, Mr Macala’s yearning for hedonism led him to the club where he ordered seven (7) beers which were all opened and handed to him. Just before midnight, and presumably he was now not as sober as a judge, he insisted that that he be refunded for the three remaining beers he did not consume. The club’s staff refused to refund him. Mr Macala then went on a rampage by breaking all the three bottles of beers he did not consume. This violent conduct resulted in shattered bottles injuring club employees. One of the injured club employees had the bottles removed by her mother with “tweezers”. The mine security personnel prepared and submitted the incident report to the applicant and pleaded with the applicant to take corrective steps against Mr Macala. In turn, Mr Macala penned a letter to the applicant in which he tendered his apology for the incident of the evening of 9 December 2017. Mr Macala in his letter to the applicant, absolved himself from being responsible for any injuries sustained by club employees as a result of him breaking bottles of beers on the night in question. He insisted that whoever who sustained injuries at the club, it was as a result of an incident that is not associated to him. Despite the severity of the incident in issue, the applicant elected not to institute any consequence management measures against Mr Macala.

 

[8]          On Sunday 19 May 2018, Mr Macala, was on a twelve (12) hour shift with his colleagues. There is no canteen at the workplace and Mr Macala and other workers needed food and other provisions such as airtime. The only grocery store available and opened on Sunday was the OK store which is approximately five kilometers from the workplace. Mr Macala, without permission took the applicant’s vehicle during working hours and drove to the OK grocery shop to purchase food and airtime for himself and his colleagues.

 

[9]          To exit and enter the mine premises, Mr Macala used a gate remote control instead of biometric system. At OK store, he was seen by one of his senior colleagues, Mr Rossouw who immediately called another senior colleague the Plant Manager, Mr Blaauw asking him if Mr Macala was granted permission to attend to the OK store using the applicant’s vehicle. The answer given to Mr Rossouw was in the negative. It transpired that Mr Macala’s usage of the remote control to exit and enter the applicant’s plant on 19 May 2018, breached the applicant’s policies.

 

[10]       On 21 May 2018, the applicant suspended Mr Macala and proffered four charges of misconduct against him. In the main, charge 1 related to Mr Macala’s alleged unruly, disorderly and conduct unbecoming of person in his position in that at the club on 18 May 2018, he allegedly threatened mine security personnel and intimated to them that he would shut down the mine’s operations if they came near his house. Charge 2 related to an alleged threat to the mine’s security personnel that he would incite industrial action at the mine and he had influenced contractors to engage in a work stoppage at the mine. Charge 3 was an alleged gross insubordination towards the applicant’s director Mr Budhraja by calling him a racist. Charge 4 had to do with the incident of 19 May 2018, of attending to the OK store without permission by using the company’s car and breaching the exit and entrance policy.

 

[11]       The applicant secured the services of Counsel to preside over Mr Macala’s disciplinary hearing. In the disciplinary hearing, the applicant was represented by Mr Blaauw and Mr Macala was represented by AMCU’s shop steward, Mr Phoko. The hearing was set down to commence on 30-31 May 2018. The hearing was only held on 1-2 August 2019. The sole reason for fifteen (15) month delay was attributed to Mr Macala repeatedly furnishing the applicant with medical certificates which were duly accepted by the applicant.

 

[12]       Following the disciplinary hearing proceedings after fifteen (15) months, the chairperson acquitted Mr Macala on the first three charges and found him guilty on charge 4 and recommended his summary dismissal.

 

[13]       Aggrieved by the dismissal, Mr Macala, assisted by AMCU referred the dispute to the Commission for resolution. Conciliation failed to resolve the dispute. The Commissioner was then appointed to preside over the arbitration.

 

[14]       After affording the parties to present and adduce evidence in support of their respective cases, the Commissioner found that the dismissal was procedurally fair and substantively unfair and ordered Mr Macala’s reinstatement coupled with remuneration to the tune of R 90 369.40 (which is the equivalent of a three months’ salary). The Commissioner’s main reason for his award was that the applicant’s disciplinary code for the unauthorised use of the company’s vehicle prescribed a sanction short of dismissal, in particular for the first offence. It was Mr Macala’s first offence. The applicant is very aggrieved with the arbitration award resulting in launching the present application.

 

The award

 

[15]       According to the arbitrator’s reasoning and conclusion, nothing in the applicant’s disciplinary code and procedure is dismissal prescribed as a sanction for the first offender who used the company’s vehicle without any authority. Accordingly, the arbitrator found that the dismissal of Mr Macala was substantively unfair and ordered his retrospective reinstatement with remuneration.

 

The Applicant’s case

 

[16]       The applicant assails the arbitration award on the following grounds, namely; (a) commissioner’s refusal to permit the applicant to be legally represented is bad in law; (b) commissioner committed gross irregularity in finding that the entry and exit procedure did not require an employee to use biometrics; (c) commissioner committed gross irregularity when he failed to appreciate the importance of entry and exit procedure and the consequence of the breach thereof; (d) commissioner committed gross irregularity in his assessment of the evidence in that he failed to appreciate the importance of the rule that company vehicles may only be used for private purposes by authorisation from management; (e) commissioner committed gross irregularity in applying his discretion to award backpay in that he failed to consider that Macala had been suspended on full pay for two months due to his repeated submission of medical certificates; and (f) commissioner committed gross irregularity in finding that there was no evidence to suggest that progressive discipline could not be applied to Mr Macala despite having admitted that he repeatedly exited the plant without using the biometrics prior to 19 May 2019. The applicant’s heads of argument[2] placed no reliance on any case law to support its grounds for review.

 

[17]       The applicant contends that the commissioner ought to have allowed it to be legally represented as the dispute was complex and in the public interest. Further, the applicant contends that AMCU’s shop steward was legally trained and very familiar and experienced in conducting arbitration proceedings. According to the applicant, by allowing it to be legally represented by Mr Kenneth Coster (Mr Coster), an experienced attorney from Webber Wentzel who specialises in labour law, Mr Coster would have presented evidence to the arbitrator including uncontested evidence that was ignored by the chairperson of the disciplinary hearing concerning charges Mr Macala was acquitted for. The applicant attributes the commissioner finding for Mr Macala as proof that Mr Blaauw was unable to properly present evidence at the arbitration proceedings as it was for the first time he was appearing in the said proceedings. For that reason, the applicant contends that the dispute must be remitted back to the Commission under a new commissioner.

 

[18]       It is worth a mention that, following the commissioner’s refusal to allow the applicant to be legally represented, Mr Coster was excused from the proceedings by the commissioner. However, on record, Mr Coster informed the commissioner that he would sit in the next room to enable Mr Blaauw to consult with him during the proceedings should the need arise. In essence, Mr Blaauw could at any time necessary ask for a short adjournment to consult Mr Coster on any legal point or submissions to advance.

 

[19]       In respect of the conduct of the commissioner, the applicant cites various alleged gross irregularities generally in how the arbitrator dealt with evidence presented to him.

 

[20]       The applicant asked for a costs order in the event of opposition.

 

Third Respondent’s case

 

[21]       AMCU’s contention on behalf of Mr Macala is that the commissioner was correct in law, particularly Rule 25(1)(c)(ii), not to allow the applicant to be legally represented as it was not legally represented as well. Further, AMCU submitted that its shop steward is not legally trained but received a requisite training to assist and represent its members in disciplinary and arbitration proceedings. AMCU also stated that the issue before the commissioner was neither complex nor in the public interest, let alone raising any points of law. According to AMCU, the commissioner was correct to find that nothing in the applicant’s disciplinary code is the sanction of dismissal prescribed for the first offence of unauthorised use of a company’s vehicle.

 

[22]       In the premise, AMCU submitted that this application be dismissed with costs.

 

Law, Evaluation and Analysis

 

[23]       The legal framework for review of arbitration awards is sourced from s 145(2) of the LRA which provides that an arbitration award may be reviewed if the Commissioner:

(a)       has committed misconduct in relation to the duties of the commissioner as an arbitrator;

(b)       committed a gross irregularity in the conduct of the arbitration proceedings; or

(c)       exceeded the commissioner’s powers.

 

[24]       It is prudent that I deal with the grounds for review in the context of the test and having regard to the provisions of s 145 (2) of the LRA set out in the preceding paragraph. The test set out in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[3] requires this court to establish whether the commissioner’s decision is the one that a reasonable decision maker could take.

 

[25]       In Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA[4], the Labour Appeal Court held that “a reviewing court must ascertain whether the commissioner considered the principal issue before him/her, evaluated the facts presented at the hearing and came to a reasonable conclusion.”

 

[26]       In Herholdt v Nedbank Ltd[5] (Congress of SA Trade Unions as amicus curiae) the SCA made it clear that the review of an arbitration award is permissible if the defect in the proceedings falls within one of the grounds in Section 145(2)(a) of the LRA. The following was stated:

 

“For a defect in the conduct of the proceedings to have amounted to a gross irregularity as contemplated by s 145 (2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all 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.”

 

            Legal representation by applicant

 

[27]       It was startling that the applicant raised the issue of legal representation and contended that the commissioner erred in refusing it to be legally represented in the arbitration proceedings. The issue of legal representation was settled by the SCA in CCMA and Others v Law Society of Northern Provinces[6] in 2013. In November 2014, the Constitutional Court confirmed the decision of the SCA and dismissed with costs the appeal lodged by the Law Society of Northern provinces (Law Society). In sum, the Law Society challenged the constitutionality of Rule 25(1)(c) of the Rules of the conduct of proceedings before the CCMA on the basis that it is violates ss 9(3)[7], 22[8], 33[9] and 34[10] of the Constitution of the Republic, 1996. The Law Society succeeded in the court a quo. The CCMA appealed to the SCA. The SCA found that Rule 25(1)(c) of the Rules of the CCMA is constitutionally compliant and replaced the order of the court a quo with the dismissal of the application with costs including the costs of two counsel. At para 12 of its judgment the SCA held as follows:

 

“The commissioner must, if satisfied that it is appropriate to do so, also determine dispute about legal representation if one of the parties objects or if he or she suspects that the representative does not qualify in terms of the rule. In addition, in terms of s 191(6) of the LRA the Director of the CCMA must on request by a party refer a dispute about fairness of dismissal or unfair labour practice to the Labour Court after considering the reasons for dismissal, the questions of law raised, the complexity of the dispute, any conflicting arbitration awards and the public interest.

 

[28]       Rule 25 (1) (c) of the CCMA Rules, in clear terms, limits the right to legal representation at arbitrations. In particular, legal representation is not permitted if a dispute concerns a dismissal where the reason for the dismissal is either misconduct or capacity. Although parties do not have an automatic right to legal representation in these circumstances, Rule 25 (1) (c) allows a party to make a formal application for legal representation or parties may, provided that the commissioner consents, agree to legal representation. 

 

[29]       Having read the record of the arbitration proceedings, and how Mr Blaauw was able to lead his witnesses and cross examine both Mr Macala and Mr Kgoloko Piet Maseng, it cannot be said that Mr Blaauw was in anyway incompetent to conduct arbitration proceedings. The commissioner was correct to dismiss[11] the applicant’s application on legal representation. In making submissions on behalf of the applicant, Ms Tolmay made a concession that the point on legal representation in her view was incompetent in law. However, as a creature of instructions, she has been instructed to advance the said point.

 

Various gross irregularities

 

[30]       Second and third grounds for review relate to the entry and exit procedure. The commissioner correctly found that there is nothing in the applicant’s policy that specifically make it an obligation for employees to use biometrics. In its founding affidavit, the deponent to the applicant, Mr Blaauw concedes that material fact in the following terms:

 

“Although the Entry and Exit Procedure is not written in totally unambiguous terms it clearly provides that employees must use the biometrics system on entering and exiting the plant.”

 

[31]       One of the applicant’s witnesses, Mr Fernando conceded that Mr Macala, as a shift controller on 19 May 2018, could use a remote control as an alternative to the entry and exit at the workplace[12]. Nothing in the applicant’s policy made any mention that the remote control could only be used in cases of emergencies. Accordingly, the commissioner was correct in his evaluation and the weight he attached to this aspect.

 

[32]       In respect of the usage of the car without permission, the applicant alleges that the commissioner failed to appreciate the importance of the rule that the company’s car could only be used for private purposes by authorisation. Contrary to the applicant’s contention, the commissioner states the following at paras 45 and 46:

 

“45.   Even though it is probable that the applicant never needed to seek permission to use company vehicles privately since he became a foreman, I am of the opinion that the vehicle is that of the respondent and that the respondent has every right to demand that its permission be sought before its vehicle can be utilized for private purposes.

 

46.    It is accordingly my finding that the applicant was correctly found guilty of unauthorised use of company vehicle on 19 May 2019.[13]”

 

[33]       If regard is had to the preceding paragraph, it is clear that the commissioner committed no irregularity by any measure. The applicant either misread or misconstrued the arbitration award.

 

[34]       In respect of the issue of backpay, the applicant alleges that Mr Macala was suspended with full pay. The Commissioner did not award Mr Macala to be compensated for the time he was on suspension. Mr Macala’s dismissal was effective from September 2019. In ordering Mr Macala’s reinstatement, the commissioner complied with s 193(1) of the LRA and ordered reinstatement from the date of dismissal up to the dated of the award, being December 2019. It was therefore correct for the commissioner to have awarded Mr Macala compensation effective from September, October to November 2019, which is approximately three months’ salary.

 

[35]       In respect of the progressive discipline, the commissioner correctly found that for contravention Mr Macala was found guilty of, as the first offender, the applicant’s disciplinary code does not prescribe dismissal as an appropriate sanction. Further, the said code, does not place Mr Macala’s contravention as a serious misconduct that warrants dismissal. According to the record, the applicant advanced no exceptional circumstances to the commissioner to deviate from the sanction prescribed in the applicant’s disciplinary code. In the circumstances, it would be illogical for the commissioner to pronounce a sanction that is not sourced in the employer’s disciplinary code[14] and procedure.

 

[36]       In the conspectus of what is set out above, I find that the commissioner conducted himself consistent with his duties and he committed no gross irregularities as alleged by the applicant.

 

[37]       In the circumstances, and as enjoined by s 145(4) of the LRA, the decision of the arbitrator is one that a reasonable decision maker could have reached having properly considered the evidence presented to him. The arbitration award stands. The application is dismissed and Mr Macala’s dismissal was substantively unfair. There is no compelling reason to remit this dispute back to the First Respondent.

 

[38]       In as much as the applicant and AMCU sought costs against each other, in the end, both Ms Tolmay and Mr Cook were in concert with me that I should align myself with the principles enunciated in Zungu v Premier of KwaZulu Natal and Others[15] and mulct no party with costs.

 

Conclusion

 

[39]       For reasons adverted above, the application for review fails. The applicant has itself to blame for not charging Mr Macala for the incident of the evening of 9 December 2017. Acceptance of Mr Macala’s apology for the beer incident was the applicant’s decision and it has to live by it.

 

[40]       Startling to say the least, is the fact that the applicant for fifteen (15) months entertained and accepted Mr Macala’s medical certificates when our law states that medical certificates constitute hearsay evidence[16] if the medical practitioner consulted by an employee was not called to give evidence or depose to the affidavit regarding the employee’s state of health. That is a spectacular own goal for the employer.

 

[41]       The applicant is the drafter and custodian of its policies can blame no one but itself. It is Mr Blaauw[17] who drafted and approved the policy of entry and exit. It is him who under oath stated that it is not written in unambiguous terms. To blame the commissioner is far-fetched as the applicant is the author of its own misfortunes.

 

[42]       The applicant’s application was meritless from the onset. It should have taken notice of the inherent defects in its policies.

 

[43]       In the result the following order is made:

 

Order

1.         The review application is dismissed; and

 

2.         There is no order as to costs.

 

SMANGA SETHENE

Acting Judge of the Labour Court of South Africa

 

Appearances:

 

For the Applicant:                      Adv E Tolmay

Instructed by:                            Webber Wentzel Attorneys

 

For the Respondent:                Adv AL Cook

Instructed by:                           LDA Inc

 

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