lLIBERTY GROUP
LIMITED
Appellant
and
M. M.
Respondent
Heard:
21 September 2016
Delivered:
07 March 2017
Summary:
Claim of unfair discrimination
under s 60 of the Employment Equity Act 55 of 1998 (EEA) against
employer arising from employee’s sexual harassment by manager. Labour Court found appellant liable
under s 60 with sexual harassment proved. On appeal: employer found to have failed to consult all
relevant parties and take the necessary steps to eliminate the conduct under s
60(2). In addition, employer failed to do all that was reasonably practicable,
as required by s 60(4), to ensure no act in contravention of EEA
occurred. Appeal against
judgment of Labour Court dismissed with costs.
LONMIN PLATINUM
LTD
Appellant
and
NATIONAL UNION OF MINEWORKERS
First Respondent
COMMISSION FOR CONCILATION,
MEDIATION AND ARBITRATION
Second Respondent
ROB MACGREGOR N.O.
Third Respondent
Heard:
19 May 2016
Delivered:
28 February 2017
Summary: Point in limine raised that dispute referred to CCMA
already adjudicated by the Labour Court – Labour Court ordered cancellation
of union organisational rights upon failure by union to prove representativity
by certain date – employer cancelling union organisational right on the basis
that the resolutive condition in the court order had been met – Union referring
a collective
agreement dispute to CCMA
which upheld employer’s contention – commissioner approaching the matter in the
wrong footing – commissioner not bound by parties description of the nature of
the dispute – commissioner
must determine the true issue in dispute in light of the facts of the case
- issue in dispute
is a factual one about whether in terms of the court order and within the time
stipulated therein union objectively proves that it had not lost its majority. Commissioner failing to
determine the true issue in dispute – Labour Court’s judgment upheld –
appeal dismissed.
IDWU OBO CYRIL
LINDA AND 4 OTHERS
Appellants
and
SUPER GROUP
First Respondent
W M RAFELETA
N.O.
Second Respondent
NATIONAL BARGAINING
COUNCIL
FOR THE FREIGHT
INDUSTRY
Third Respondent
Heard:
22 March 2016
Delivered:
28 February 2017
Coram:
Tlaletsi DJP, Davis and Sutherland JJA
JUDGMENT (Writer’s own summary)
·
The appeal is
brought on behalf of employees who had initially been found by an arbitrator to
have been unfairly dismissed by the first respondent (the employer),[1] but which award to that effect had
been set aside on review.
·
Two questions arise
for decision. First, the state
of a reconstructed record provokes a need to consider whether it is
appropriate to hear the appeal at all. Second, on the premise that it is
appropriate to do so, whether the award holding the dismissals unfair, fails to
pass muster as one to which no
reasonable arbitrator could have come.
·
A transcribed
record of an arbitration has not been made available to litigants. The parties in this matter have
made reasonable efforts to recompose one. What is before this Court has
been agreed to be the best that can be done.
·
Reconstruction of a
record of an arbitration taken on review has recently enjoyed the attention of
the Constitutional Court.
In Toyota Motors (Pty) Ltd v CCMA [2016] 3 BLLR 217 (CC)[2] and in Baloyi v MEC, Health
& Social Development, Limpopo (2016) 37 ILJ 549 (CC),[3] the dilemma which faces a
review court when presented with an inadequate record was addressed. What emerges from the various
dicta of that Court is that where the interests of justice demand it, a
pragmatic approach is appropriate, despite the inadequacies of the record.
·
Once a proper
effort to reconstruct a record has been made, the review court should tackle
the task, provided the record is adequate to enable the relevant controversy to
be decided. At the two extremes
there could, on the one hand, be an issue that either does not or hardly
turns on the facts, and on the other hand, the issue may be one in respect of
which, close examination of the content of the ipisima verba of
witnesses is critical. The former may safely be heard, despite a rudimentary
record, the latter, perhaps, not at all. Many cases will fall in between these poles. A measure of
judgment is called for to assess the feasibility of a proper adjudication in a
given case.
·
In certain cases,
the record may be rather poor for the relevant purpose, although not completely
useless. The preferable
option may be to set aside the whole proceedings and allow the dispute to be
adjudicated afresh. However, that option, although from a purely
forensic standpoint may be
attractive, the implications of a remittal may work undue hardship on one or both parties.
Typically, that unhappy predicament results from the long elapse of time
since the dispute arose.
·
A long delay ought
not to be exacerbated by a remittal.
·
The arbitrator
preferred the employees’ version. On review, shorn of the wordiness of the
abundant case-law,[4] the straightforward question to be
asked is whether the body of evidence that was put before the arbitrator could
not have justified a reasonable arbitrator in preferring the employees’
version.
·
Such was the material before the arbitrator upon
which to make findings on credibility and on the probabilities. Could a
reasonable arbitrator conceivably prefer the employees’ version? The onus rests
on the employer, so if there is doubt as to which version to prefer, the
employees’ version must be preferred.
·
This court found that employees’ version is so
vitiated by improbability that it is unreasonable to prefer it. [26] Unless a finding could be made that the
e-mails and Hearing were indeed fabrications, that evidence was an insuperable
obstacle to believing the employees.
·
Body of evidence cannot sustain the result rendered
by the arbitrator. The appropriate set of facts to be found proven was that
advanced in support of the employer’s case. This is not simply because
this court takes that view and, ergo, the arbitrator was unreasonable.
·
Sanction: An enquiry into an appropriate
sanction on the proper facts was not undertaken.
·
Facts on this record, it is not apparent why the
personal circumstances of the employees did not enjoy greater consideration.
·
A sanction warrants conscious consideration.
·
The common labourer is not to be treated as a mere
unit of labour. He is also a human being. No more than a modicum of empathy ought to have propelled the chairman
of the disciplinary enquiry to probe the implications of their predicament and
weigh that factor in determining the degree of blameworthiness to attach to their actions
·
Sanction of dismissal was inappropriate. Allowing
due weight to the effect of their misconduct on the business credibility of the
employer, a final written warning would be proportionate to their delinquency. If there had been no other opportunity to be
placed, as appears to be the case, the employees would have faced retrenchment
o The appeal upheld, in part, and dismissed in part.
o The Judgment of the court a quo is
set aside.
o The award of the arbitrator is reviewed and set
aside
o The employees are declared to have been guilty of
desertion.
o The sanction of dismissal is declared to have been
inappropriate and unfair
o Compensation is awarded to each employee-appellant
in the sum of R 2400.
o No order as to costs.
SAFPU
First Appellant
HU
TOROMBA
Second Appellant
LM
MALEK
Third Appellant
BS
SENOKOANE
Fourth Appellant
and
FREE
STATE STARS FOOTBALL CLUB (PTY) LTD
Respondent
Heard:
30 November 2016
Delivered:
21 February 2017
Summary:
Employees entering into
fixed terms contracts which provide for a dispute resolution mechanism –
employees dismissed for operational requirements referred their dispute
to the Labour Court instead to the dispute resolution forum – Labour Court holding
considerations which arose from the contractual obligation were not relevant -
staying employees’ matter and directing that they refer their dispute to
arbitration in the dispute resolution forum in terms of their contract of
employment. Exceptional circumstances must exist to exempt the employees from
complying with agreement to refer their matter to the dispute resolution forum
- Labour Court exercising such discretion and appeal court may only interfere if the exercise of the
discretion is irrational, capricious or unreasonable – dispute
resolution forum onerous for employee who must pay fees unlike in the Labour
and Labour Appeal Court –
moreover employees would have the benefit of speedy resolution mechanisms of the
LRA – matter requiring little evidence as impermissible to retrench fixed term employees - Labour Court more suitable than
forum to hear the dispute - such circumstances exceptional so as to warrant
interference in the exercise of the discretion by the Labour Court – Appeal upheld and employees
directed to proceed with their dispute in the Labour Court.
CHARLOTTE
C MHLONGO
Appellant
and
SOUTH
AFRICAN REVENUE
SERVICE
Respondent
Heard:
29 November 2016
Delivered:
16 February 2017
Summary:
Claim for specific performance
for breach of contract in the form of reinstatement – employee alleging that
employer suspending and then dismissing her without affording her an
opportunity to make representation in terms of the disciplinary code – no need for an employer to hold
a disciplinary hearing when employer’s repeated attempts to contact employee
unsuccessful. Moreover, employee’s relief academic because employee
suspension overtaken by her dismissal. On dismissal no case made out on papers
of a breach of contract. No
purpose remitting matter to the Labour Court in light of its misdirection that
it lacks jurisdiction to entertain employee’s dispute.
NATIONAL UNION OF
METAL WORKERS OF
SOUTH AFRICA
(NUMSA) OBO ABRAM MOTLOBA
Appellant
and
JOHNSON CONTROLS AUTOMOTIVE SA (PTY) LTD
First Respondent
MOTOR INDUSTRY BARGANING
COUNCIL
Second Respondent
RIAAN DE LANGE
Third Respondent
Heard: 15
September 2016
Delivered: 03 February 2017
Summary: The appellant employee - dismissed on account
of misconduct: physical and verbal assault of the manager; serious disrespect,
impudence and/or insolence; and/or threatening and/or intimidating behaviour
towards the manager.
The arbitrator-
assessing the misconduct on the basis of the decision of the Industrial Court
in FAWU v Harvestime Corporation (Pty) Ltd (1989) 10 ILJ 497
(IC) as authority for the proposition that a shop steward when he approaches or
negotiates with a senior official or management does so on virtually an equal
level with the official or management and the ordinary rules applicable to the
normal employer-employee relationship are then somewhat relaxed. The Arbitrator
- finding that the appellant’s dismissal was procedurally fair but
substantively unfair.
On review and cross-review to the Labour Court- The Court finding that the
arbitrator failed to apply his mind to the evidence and to assess the
credibility and reliability of witnesses, including the probabilities.
Further finding- that the arbitrator applied the incorrect “anything goes”
approach enunciated in Harvestime Corporation. The Court -
concluding that the award was incapable of being sustained and stood to be
reviewed and set aside
On appeal to the Labour Appeal Court - The Court
reaffirming the principle formulated in the considerable body of authority that
a shop steward should
fearlessly pursue the interest his/her constituency and ought to be protected
against any form of victimisation for doing so. However, this was no licence to
resort to defiance and needless confrontation. Assaults and threats
thereof were not conducive to harmony or to productive negotiation. It was unacceptable to hold that when
one acts in a representative capacity “anything goes”.
Finding - that the
incident complained of did not arise during the course of the negotiations or
within the context of the collective bargaining process. Further finding- that
the arbitrator misconceived the nature of the enquiry he was enjoined to
undertake in holding that the incident was in relation to an issue of relevance
to industrial relations. Further finding- that reliance by arbitrator on Harvestime
Corporation was plainly wrong and had correctly been found by the
Court a quo as amounting to a gross irregularity - the gross
irregularities committed had a distorting effect on the outcome of the
arbitration and vitiated the award.
MEC
FOR EDUCATION (NORTH WEST PROVINCIAL Appellant
GOVERNMENT)
and
J
M K MAKUBALO
Respondent
Heard:
23 November 2016
Delivered:
3 February 2017
Summary:
Respondent, a school principal, dismissed for the sexual assault of fellow teacher and financial
mismanagement of school. At first arbitration hearing respondent’s dismissal
found substantively unfair and respondent retrospectively reinstated into his
employment with the appellant. On review Labour Court set aside arbitration
award and remitted matter to Education Labour Relations Council for hearing de novo before another arbitrator. Following
second arbitration hearing, respondent’s dismissal found substantively fair.
Respondent sought review of the second arbitration award. On review - Labour
Court set aside arbitration award and substituted it with a finding that his
dismissal was substantively unfair with respondent’s retrospective
reinstatement ordered. On appeal - appeal upheld. Orders of Labour Court set aside and substituted
with order that review application dismissed with no order as to costs.
CONSOL
GLASS
First Appellant
and
THE
NATIONAL BARGAINING COUNCIL FOR
THE
CHEMICAL
INDUSTRIES
First Respondent
COMMISSIONER
M.S. RAFFEE
N.O
Second Respondent
SUCCESS
NZIANA
Third Respondent
Heard:
30 August 2016
Delivered:
03 February 2017
The
Bargaining Council – finding the dismissal of the third respondent by the
appellant on account of misconduct - gross insolence and gross dereliction of
duty - to have been substantively
fair.
On
review to the Labour Court - the third respondent contending, inter alia, that the
commissioner had failed to determine the real issue in dispute between the
parties and had curtailed his right to cross-examine the appellant’s witness.
The
Labour Court – refusing to condone the late filing of the appellant’s answering
affidavit in that no explanation had been proffered for the delay. Finding that
the evidence adduced at the arbitration centred on the third respondent’s poor
work performance as opposed to his misconduct –further finding that even if the
commissioner had considered the matter on the basis of the third respondent’s
poor work performance the outcome
would remain one which a reasonable commissioner could have reached. On
the question of failure by
the commissioner to afford the third respondent his right to cross-examine the
witness- finding that this resulted in failure of justice. The award -
reviewed and set aside and the matter remitted to Bargaining Council for the arbitration de novo.
On Appeal and Cross-appeal: the Labour Appeal Court - finding that the approach by the Court a quo in not considering the prospects of
success when refusing the application for condonation of the late lodging of
the appellant’s answering affidavit was wrong. In considering the applications for
condonation the Court has a discretion to be exercised judicially upon a
consideration of all the facts which included the appellant’s prospects of
success.
Finding
- that the commissioner
displayed a level of intolerance when the third respondent was testifying
- whilst the commissioners
are enjoined to conduct the arbitrations in a manner they consider appropriate
in order to determine the dispute fairly and quickly they must guard
against exhibiting petulance to any of the parties. Judicial temperament, which
is inherent in their duties, is an important element to the realisation of
justice for all.
Finding-
that the denial of a right
to cross-examine a witness goes to the root of a fair hearing and the resultant
award stood to be reviewed and set aside. The normal remedy would be to
refer the matter to the Bargaining Council for the arbitration de novo before a
commissioner other than the second respondent. Finding - on the facts of the
case, it served no purpose to do so because the appellant had failed to prove
the fairness of the dismissal.
The
appeal dismissed, the
cross-appeal upheld, the order of the Court a quo substituted with an order upholding
the review application.
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