ARBITRATION AWARD. Arbitrator: Diale Ntsoane Case No.: MPCHEM /12 Date of Award: 10 June In the ARBITRATION between:

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1 ARBITRATION AWARD Arbitrator: Diale Ntsoane Case No.: MPCHEM /12 Date of Award: 10 June 2013 In the ARBITRATION between: CEPPWAWU obo Mokwena (Union / Applicant) And Sasol Nitro (Respondent) Union/Applicant s representative: Mr. J.J Seloane Union/Applicant s address: P.O. Box 444 Evander 2280 Telephone: /7 Telefax: Respondent s representative: Ms J. Rheeder Respondent s address: P.O. Box 1000 Secunda Telephone: Telefax: Page 1

2 DETAILS OF HEARING AND REPRESENTATION [1] The matter was set down for Arbitration on 16 October 2012 and was concluded on 16 May 2013 at Lilian Ngoyi Centre in Secunda. Mr. J.J Seloane, an official of the trade union, CEPPWAWU, represented the applicant whilst Ms J. Rheeder, a legal practitioner, represented the respondent. The proceedings were recorded manually and mechanically. BACKGROUND FACTS. [2] The applicant commenced working for the respondent as an artisan on 01 November 2008 and was earning R He was dismissed on 06 June 2012 pursuant to a disciplinary hearing. ISSUE TO BE DECIDED [3] Whether or not the dismissal of the applicant was fair. Both substantive and procedural fairness are in dispute. SURVEY OF EVIDENCE AND ARGUMENT The respondent s case Charles Allan Kemp s testimony was that: [4] He worked for the Polygraph Institute of South Africa as a polygraph examiner. An assessment was done on Eben Van Rooyen on 26 April 2012 and thereafter he wrote the report which is on page 23 of bundle A. The purpose of the assessment was to validate Van Rooyen s statement regarding the incident. The two workers implicated were also requested to undergo polygraph test but they refused. They were called in for a briefing session but they said they did not understand the operation. They asked for a meeting with their representatives and later they refused to take the test. All polygraph tests were voluntarily conducted. He explained the consequences of undergoing the test to Van Rooyen. He used Limestone Computerised Polygraph on Van Rooyen. He concluded that Van Rooyen was truthful when he answered all four questions put to him. Guduveni Maseko s testimony was that: [5] He was a human resources manager. After the incident was reported to the management a decision was taken that the applicant be suspended with pay. It later came to his attention that the form that was filled was incorrect. The applicant was issued with a form of suspension without pay which was usually issued after the sanction had been pronounced. Page 2 of 10

3 Jaco Van Straten s testimony was that: [6] He was a divisional manager of production. The applicant was not reporting to his structure. He chaired the disciplinary hearing of the applicant. He strongly denied the allegations that he was biased. He listened to both parties and, on the balance of probabilities, made his decision. Van Rooyen s shirt had hand marks on the shoulder which was consistent with his evidence. Eben Van Rooyen s testimony was that: [7] He was a supervisor / group leader in the pump division with three years experience. The applicant was reporting to him. He had an open vacancy in his workshop and conducted interviews. The applicant was assigned to work with Harmse but later asked to come and work with him, and he agreed. On 20 March 2012 about 14h15 he walked into the workshop and saw some guys sitting on the top. He had his drink and left. While in his office he could hear they were still there and called them. When they did not come, he went out and asked them to come down and they did. [8] He asked them what they were doing there. The applicant said: Don t ask me, ask others and turned. He asked Solomon what they were doing up there. He asked Solomon again when he did not answer but at that point the applicant hit him on the shoulder and then positioned himself to hit him with fists. He moved out of the applicant s way, took out his cellular phone and phoned his manager. [9] He previously had problems with the applicant. At some point the applicant pointed a spanner at him. The applicant once kicked a bucket and when he reprimanded him he got angry and said it was not him. At another time the applicant had to go and repair a pump but returned saying he could not work there. He (the witness) ended up sending another artisan who did it without any problem. The applicant caused a lot of friction and did not work well with other artisan. He once sent the applicant to repair a pump with Solomon, and when they returned Solomon said he did not want to work with him (the applicant) anymore. The applicant refused to take instructions from artisans. [10] The applicant called him racist in the past. He also called other people in the department names. There was a lot of conflict, and an agreement was later reached that the past be forgotten page 21 of bundle A. After the agreement he had no reason to dismiss the applicant. Page 3 of 10

4 [11] He kept the shirt he was wearing as evidence because it still had the marks. The respondent s rule with regard to assault was that it was unacceptable. He said he underwent the polygraph test and passed it. The applicant in the beginning agreed to go for the test but later refused. [12] A recommendation was made that the applicant should attend ICAS. They processed everything and ICAS said they would phone him, so since then he did not know what happened. He said Solomon did not assault him. The applicant s case. Joseph Mokwena s testimony was that: [13] Tuesday March was his first day from three weeks vacation leave. Everyday at 14H00 they did housekeeping. He was busy with a vertical pump and stopped at 14H00 without finishing because of housekeeping. It was a norm in that workshop that their white counterparts would stand chatting and watching blacks doing housekeeping. He realized that he was the only one doing the housekeeping, and decided to go and sit in the change room on the top floor until his black colleagues came to him to discuss that thing of housekeeping only being done by blacks. [14] As they were chatting, the foreman, whose office was directly at the bottom floor (down-stairs), called them. His colleague was the first to go downstairs, and he followed him. Upon their arrival, the foreman, Eben Van Rooyen, asked them what they were doing up there. As his colleague was trying to explain, he just walked past them heading for the door. Eben said: Joseph, I am also talking to you. He responded by saying they could not discuss housekeeping every day, and that blacks and whites used to be paired together and then it was no longer the case but only blacks were doing it. He said he told him that he was not going to do it alone while his white colleagues were standing outside chatting. He then left and went to the toilet. [15] When he returned he found only Solomon in the workshop. Eben came back with the area manager, Hennie Marx, who ordered him to go to the human resources offices. He went to the change room to change into his own clothes, checked out and then went to the human resources offices where he was joined by Eban, Marx and HR officer. Marx then told him that he was suspending him with immediate effect and started completing a form which he asked him to sign. When he asked Marx why he was suspending him he said it was management s decision and that he would be contacted soon. He refused to sign it. In the workshop where they claim the assault took place, it was only him, Eben and Solomon. Marx came in as a second witness in the hearing even though he was not there when the Page 4 of 10

5 alleged incident took place but when he raised it, the chairperson of the disciplinary hearing said he was not going to consider his evidence. The chairperson said he called Marx to testify about what Eben told him. The chairperson then said he would call a lie detector, which he (the applicant) thought the chairperson wanted more evidence against him. His representative told the chairperson of the hearing that the taking of a lie detector was voluntary and that he should not be surprised if they did not participate. They attended it and the tester explained how it worked. He and Solomon did not go for the test and he was not sure if Eben did go or not but the appeal chairperson used the test results of Eben as the reason to confirm the dismissal. [16] He met a shop-steward outside and when he showed him the suspension letter, he brought it to his attention that it was wrong, and then took it to act on it. The following week on 26 March he was called and given another suspension letter which he signed because words like suspension without pay which were on the first suspension letter were removed. He was charged with assault and a date was set for the hearing. He only heard in the hearing that he hit the foreman with an open hand and stood in front of him as if he wanted to box him. He pleaded innocent because it did not happen. [17] He was never accepted in his company ever since he joined it. Somebody was put in his position while he was waiting for verification of his papers and medical check-ups. After signing the acceptance letter, the HR dispatched him to the workshop where he met the acting foreman, Judas Mpokgo, who told him that there was no space, but he should wait for the foreman. The acting foreman told him that they put Dean, an operator, in his position. When the foreman came back he took him to another workshop where he was not doing the work he was interviewed for. Eddie Harmse, the foreman of the workshop he was taken to, told him that he did not interview him and that he did not need him there, and for that reason he did not order a toolbox for him. [18] He went back to the human resources officer, Makena, who then called his manager, Tumi. Tumi said the only way to solve the matter was for him (the applicant) to go back to the workshop he would call the relevant people. After a week or so a compromise was reached with Eddie Harmse that he would order PPE for him, but not a toolbox. He brought his own toolbox and continued working with Eddie Harmse, who reiterated that he was not his person. He continued working there even though he knew he was not wanted. [19] One guy resigned from Eben s workshop and Eben under pressure from Harmse took him. When he got there Eben told him that he did not want him there. He said he should either resign or he was going to fire him. He told Eben that he was not going to resign, to which Eben said he was going to dismiss Page 5 of 10

6 him. Since then Eben started charging him and most of the time the HR would just dismiss the charges. Charging him for no reason was a way of frustrating him so that he could resign. At some stage Eben charged him even though he was absent from work on the date he referred to in the charge sheet. [20] Some other time he was sent to a course but he attended a wrong course by mistake because it was not explained to him where the venue was. When he came back he was accused of having absconded and was locked out for the whole week. He was advised by HR to go and get the attendance register for the course he attended, which he did and was allowed in. [21] Grievances were lodged against Eben for the way he treated him. Some grievances were attended to like the one on page 3 of bundle B, but others were not. As per the outcome of the grievance on page 3 of bundle B Eben apologized, but it did not take a week before he started victimizing him again. Solomon Mncedisi s testimony was that: [22] It was on Tuesday March at about 11H00 when he asked to be released to go and arrange accommodation in Secunda. The foreman instructed him to come back before 13H00 but he came back after 14H00. When he returned he found Eben, Howard, Mokwena and Uri outside the workshop. Mokwena and one Elias were sitting down. He went inside upstairs to change into work clothes. When he came down Eben was already in his office. He called him and asked him why he came back late to which he explained that he delayed because he was looking for a place to stay. Eben instructed him, Elias and Mokwena to clean the workshop. He could not tell Elias and Mokwena to clean the workshop because they were no longer where he passed them when he went into the workshop. [23] He contacted Mokwena on the radio and he said he was in the change room. He had Mokwena s certificate that was given to him when Mokwena was on leave, so he wanted to give it to him. When he got upstairs Mokwena told him that Eben had already told him to clean the workshop. He gave his certificate and realized that he still had his work permit with him and then decide to take it to the security. When he returned Elias had finished cleaning the workshop. While he was discussing with Mokwena the issue of Eben always asking blacks to clean the workshop, they heard him calling out their names but they kept quite. [24] When he called again they went downstairs and he (the witness) was in front. Eben asked them what they were doing upstairs, and he (the witness) asked him (Eben) why he always asked them (blacks) to clean the workshop. Before he (the witness) could answer, Mokwena (the applicant) came down and Page 6 of 10

7 Eben asked him why he was not cleaning the workshop and he kept quite. Eben asked him again and the applicant said he did not want to speak about that issue again, and then left. When Eben followed him outside to the wash bay, he (the witness) went to Eben s office to fill in a job card. Eben came back to the workshop and started talking on the cellular phone. The applicant also returned and then Marx entered the workshop and called the applicant saying they were going to the human resource. Before they could leave the applicant went up to change into his civil clothes. When he knocked off, he heard that the applicant had been suspended. [25] When Eben followed the applicant he looked upset and angry. What he (the witness) could pick up when Eben was talking on the phone was that he was talking to Marx. When the applicant came back he was not in a fighting mood but they were all cross about the housekeeping thing. When Eben was asking them why they did not clean, Howard and Uri were at the smoking area but he did not ask them why they did not clean the workshop. [26] He said when he joined Sasol, Eben told him that everybody should clean the workshop, but the white employees would disappear and only blacks would clean it. They had more than two meetings with Marx where they complained about the issue. It was not only the applicant who had a problem with Eben. He also had problems with Eben and had reported them to management but they did nothing. What he noticed was that the management had soft spot for whites. [27] He said the applicant did not hit Eben with an open hand in front of him and he never stood in front of him (Eben). He did not see any valid reason why the applicant was dismissed except that they were complaining about the right thing. ANALYSIS OF EVIDENCE AND ARGUMENT. [28] It is common cause that the applicant was working for the respondent. It is further common cause that he was dismissed for (allegedly) assaulting Eben his foreman. It is further common cause that the alleged assault took place after the applicant refused to clean the workshop. It is further common cause that a disciplinary hearing took place prior to the applicant s dismissal. It is further common cause that the disciplinary hearing was stopped after both parties had testified for a polygraphist to be conducted. It is further common cause that it was the chairperson who ordered the test to be conducted. It is further common cause that the applicant and Solomon refused to undergo the polygraph test. Page 7 of 10

8 [29] The respondent contended that the dismissal was both procedurally and substantively fair. The respondent argued that evidence presented before the chairperson proved that the applicant assaulted Eben with an open hand. The applicant on the other hand contended that the dismissal was both procedurally and substantively unfair. The applicant argued that the charge against him was not proven and that the procedure was also not fair. Substantive (un)fairness. [30] Eben testified that the assault took place in the workshop and in the presence of Solomon. However, Solomon denied seeing the applicant assaulting him. It was also the applicant s testimony that no such incident took place. The incident is alleged to have taken place in the presence of three people and two of them say it never took place while the victim insists that it did take place. No other evidence was presented except the polygraph test result which I shall discuss later [see 35 infra]. The applicant s testimony was corroborated by Solomon. Even Jaco Van Straten conceded under cross-examination that the applicant and Solomon said the same thing. Saying the same thing is corroboration in terms of the law of evidence. Jaco Van Straten testified that Eben s evidenced was backed by polygraph test. It should be borne in mind that Eben is the only person who took the test. Solomon and the applicant refused to take it. Having refused to go for the test does not mean one has failed it, and as a result Eben s testimony remains uncorroborated. [31] The chairperson of the disciplinary, Jaco Van Straten, testified that Eben s shirt, which he said he had seen, had hand marks on the shoulder. There is no telling that the marks belonged to the applicant unless forensic tests were conducted. In this case no forensic experts were called to determine whether the marks belonged to the applicant or not. There is no telling if the victim himself made the mark or not especially in light of the fact that the chairperson only saw the marks in the disciplinary hearing some 15 days after the incident. If the marks on the shirt were evidence, Eben could have showed it to Marx whom he called immediately after the alleged incident. There is nowhere in his testimony where he mentioned telling Marx about the marks and yet he kept it for 15 days to show it to the chairperson of the disciplinary hearing. [32] The alleged incident took place on 20 March 2012 but Eben only gave a handwritten statement to the security on 22 March two days after the alleged incident pages of bundle A. The applicant and Solomon were not asked to give statements. If statements were important to this case why were applicant and Solomon not asked to give statements? And if the statement was not an important element of this case, why Eben was asked to write it? The fact that only Eben was asked to Page 8 of 10

9 write a statement about the incident is an indication that from the beginning the respondent took sides in the matter. [33] When the applicant and Solomon were asked why Eben would lie about the incident they both painted a picture of their ill-treatment of Eben and the human resources department that failed to come to their rescue. The applicant pointed to the document on page 21 of bundle A and explained that it was after Eben pressed false charges against him and that the disciplinary hearing culminated in a peace agreement being signed between the union and management. The applicant testified that after he went through an interview process, which Eben was part of, he appointed someone else (an operator) in his position. The human resources department failed to act and he was ultimately accommodated in Harmse s section. If the applicant was interviewed and appointed by the human resources department why was his position filled by a person who did not go through the same process? It did not end there. Why did the human resources go all out to find a place for the applicant to squat in another section when the position he was appointed to was occupied by a person who was not interviewed and appointed. Anyone who finds himself without a position after they were appointed would feel unwanted, but being told so to your face would be like adding salt to the wound. Eben made it clear to the applicant from day one that he did not want him, so it is not surprising that he would fabricate stories to get him out of the respondent company (Sasol Nitro). [34] It is my view that the respondent failed to discharge the burden of proof. The respondent failed to prove that the dismissal of the applicant was substantively fair. Therefore, the dismissal of the applicant was substantively unfair. Procedural (un)fairness. [35] The chairperson of the disciplinary hearing, Jaco Van Straten, testified under cross-examination that after he heard the testimony of both parties and when the applicant and Solomon said the same thing, he stopped the proceedings and ordered that polygraph test be conducted. If I understand the role of the chairperson is to listen to the evidence presented to him, analyse it and make a finding. It is unheard of the chairperson to stop the proceedings - in the absence of any application or request by the parties and order the parties to obtain certain evidence. [36] At the point he ordered the test to be conducted, both parties had finished giving evidence and all what was left was for him to make a finding. When he realized that the respondent had failed to prove the allegations against the applicant, he ordered the test to strengthen the respondent s case. When the Page 9 of 10

10 respondent s evidence fell short of arriving at a guilty verdict, the chairperson advised it to conduct polygraph test. [37] The chairperson has no role in what evidence to present and how to present it. It is only a chairperson who is impartial, who has an interest in the matter and who is biased towards another party who can stand the proceedings down and advise a party to procure certain evidence. Van Straten did not only advise the respondent to conduct polygraph test, he even briefed the tester on why he was called. Charles Allan Kemp, the tester, testified under cross-examination that after Jaco Van Straten had briefed him on why he was called, then the examinees were called in. This indicates that Jaco and Kemp were alone in a room when the briefing took place. Can the chairperson and a witness really be alone in a room to discuss matters relating to the case? Jaco Van Straten s actions failed the test of independence. The dismissal of the applicant was procedurally unfair. [38] Having found the dismissal of the applicant unfair, I am required to order a relief. The applicant asked for reinstatement which I think will be a fair relief considering that the charges against him were not proved. AWARD [38] The following award will be just and equitable: The respondent, Sasol Nitro, is ordered to reinstate the applicant, Joseph Mokwena, to the position he held prior to his dismissal with the same terms and conditions that prevailed before his dismissal with effect from the 01 st July The said reinstatement must be preceded by payment for loss of earning from the date of dismissal (06 June 2012) to 28 May 2013 calculated as follows: R x 12 months salary = R The said amount must be paid on or before the 28 th of June I make no cost order. Arbitrator:Diale Ntsoane Sector:Chemical Industry Page 10 of 10