THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT

Transcription

1 REPUBLIC OF SOUTH AFRICA Not reportable Of interest to other judges THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT Case no: JR 903/13 In the matter between: L A CRUSHERS Applicant and CCMA B E RICKMAN HONE N.O. NUM obo COLLEN NYATHI First Respondent Second Respondent Third Respondent Heard: 24 August 2016 Delivered: 27 September 2016 Summary: Review misconduct failure to follow safety procedure arbitrator finding dismissal unfair -- award not so unreasonable as to be reviewable on Sidumo test application dismissed with costs. JUDGMENT

2 Page 2 STEENKAMP J Introduction [1] The applicant, L A Crushers, dismissed its employee, Collen Nyathi 1. He was a spotter and had allegedly failed to follow set work procedures to indicate to the driver of a tipper truck when it was safe to tip. The driver also injured his thumb when the employee closed the truck door and the driver s thumb got caught in it. [2] The company called the employee to a disciplinary hearing on allegations of misconduct, namely failing to follow set work procedures and attempting to assault a fellow employee in a work-related situation. He was dismissed and referred an unfair dismissal dispute to the CCMA. The arbitrator 2 found that the dismissal was substantively unfair and ordered the company to reinstate him. The company brought an application to have the arbitration award reviewed and set aside. Background facts [3] The company operates tipper trucks in a surface mining operation. The job of the spotter is to guide the truck to the correct tipping position. In order to do so, he must make contact with the truck driver or operator. [4] On the day of this incident, the employee could not make eye contact with the driver. The truck had stopped and was switched off when he approached it. He shouted but the driver did not respond. He got onto the truck on the driver s side and told the driver that he could tip his load. (These trucks are about three metres high). As the employee was getting off the truck, he closed the door while it was on the last step of the ladder. He was not aware that the driver had leaned over, also wanting to close the door. He inadvertently closed the door on the driver s thumb. The driver was booked off work for light duties. 1 The third respondent, represented by the National Union of Mineworkers. 2 The second respondent.

3 Page 3 The award [5] Having heard the evidence of the general manager: production, Mr Wickus Erasmus; the driver, Sydney Malatji; and the employee, Collen Nyathi, the arbitrator considered that evidence and the parties arguments on the fairness of the dismissal. Procedural fairness was not in dispute. [6] The first incident of alleged misconduct was that the employee had failed to follow set work procedures. That related to the fact that he had not made eye contact with the truck driver. The arbitrator accepted the employee s uncontested evidence that the truck had stopped and was switched off when he climbed up to the cab. He also accepted that the employee had to do that because he shouted to try and make contact with the driver but did not succeed. The arbitrator noted that he had no knowledge of what set work procedure applies when a spotter cannot communicate with a truck driver by eye contact. However, as the employee needed to tell the driver to tip his load, and as the truck was switched off, the arbitrator considered his actions to be reasonable. He found that the company had failed to prove that the employee had failed to follow set work procedures in these circumstances. [7] The second allegation was that the employee had attempted to assault a fellow employee in a work-related situation. The arbitrator accepted that there may have been an exchange of words between the two when the employee climbed up to the cab. He closed the door as he climbed down. At arbitration, the driver admitted that the employee was probably looking down as he closed the door. The driver s thumb was in the door as the employee closed it. The arbitrator found that there was no evidence to support a charge of attempted assault. It was clearly an accident. [8] The arbitrator concluded that the company had failed to prove the allegations of misconduct. [9] Having found that there was no fair reason for dismissal, the arbitrator took into account the provisions of s 193(2) of the LRA and ordered the company to reinstate the employee.

4 Page 4 Review grounds [10] Mr Geldenhuys argued that the award was reviewable on two grounds. Firstly, the CCMA did not have jurisdiction; and secondly, the arbitrator did not properly take into account all the evidence and came to an unreasonable conclusion. Jurisdiction [11] In his argument, for the first time, Mr Geldenhuys raised the issue of jurisdiction. He raised the fact that the employee had withdrawn an initial dispute referral in order to investigate a possible settlement. When that failed, the CCMA reinstated the dispute at his trade union s request. Mr Geldenhuys argued that the CCMA did not have the jurisdiction to do so. What the applicant should have done is to refer a fresh dispute together with an application for condonation. [12] The short answer, as Mr Qimba argued, is that this review ground was never raised in the application for review. Nor was it raised at arbitration. As Fourie JA pointed out in NUM obo Matlakaselo v Gildenhuys N.O. 3, to which Mr Qimba referred: The failure to properly plead facts, with reference to the award and review record, sufficient to justify the legal conclusion that the arbitration award should be set aside, is normally fatal to a review application. [13] He also referred to the comments of Gush J in Naidoo v National Bargaining Council for the Chemical Industry and Others 4 : In the heads of argument filed by the applicant s counsel, the applicant attempts to make out a case justifying the review and setting aside of the award and makes reference to the record and award. Heads of argument, however, do not constitute pleadings and the court is left with only the applicant s founding and replying affidavits to determine the reviewability or otherwise of the second respondent[ s] award. [14] The new ground of review that Mr Geldenhuys raised an argument did not feature in the pleadings. It is dismissed. 3 [2013] ZALCJHB 253 (10 October 2013) para [6]. 4 [2012] 9 BLLR 915 (LC) para [19].

5 Page 5 Merits [15] That leaves the attack on the arbitrator s finding on the merits. The main attack on the arbitrator s findings is his comment that he had no knowledge of what set work procedure applies when a spotter cannot communicate with a truck driver by eye contact. But if there is such a procedure, the company has only itself to blame that it did not bring it to the attention of the arbitrator. In these proceedings, Mr Geldenhuys referred to a document where it is stated under the heading control measures that: The operator must be able to see the spotter before raising the bin. The spotter to remain 5 m away at the side of the track and must be in eye contact with the operator. [16] But, as the arbitrator pointed out, the spotter in this case was unable to make eye contact with the driver. In those circumstances, the arbitrator found the actions of the spotter climbing up to the cab to get the driver s attention to be reasonable. That finding is not so unreasonable that no other arbitrator could have come to the same conclusion. [17] On both allegations of misconduct the arbitrator carefully considered the evidence before him. He came to reasonable findings on the probabilities. On the first allegation, he found the employee s conduct to have been reasonable. With regard to the second incident, he found that it was an accident. Neither finding is so unreasonable that no other arbitrator could have come to the same conclusion on the evidence before him. Conclusion [18] The award is not reviewable. Both parties asked for costs to follow the result. I see no reason in law or fairness to differ. Order The application for review is dismissed with costs. Steenkamp J

6 Page 6 APPEARANCES APPLICANT: C J Geldenhuys (attorney). THIRD RESPONDENT: Instructed by: Q M Dzimba Mothobi attorneys.