IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA Case no: CCT
LAC case no: DA24/06 LC case no: D293/04
In the matter between:
BILLITON ALUMINIUM SA LTD
t/a HILLSIDE ALUMINIUM APPLICANT and
KHANYILE, N A FIRST RESPONDENT COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION SECOND RESPONDENT COMMISSIONER ZWANE, A,N.O. THIRD RESPONDENT ___________________________________________________________________
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FIRST RESPONDENT’S ANSWERING AFFIDAVIT
___________________________________________________________________
________
I, the undersigned, NTOKOZO ARCHIBALD KHANYILE, do hereby make oath and say:-
1.
I am the first respondent in this matter and the facts which are contained in this affidavit are within my own personal knowledge unless otherwise stated and they are, to the best of my knowledge and belief, true and correct.
2.
The applicant’s affidavit in support of its application for leave to appeal has been read and explained to me and I proceed to respond to the various allegations and contentions which are contained therein as set out hereinbelow.
3.
AD PARAGRAPHS 1 AND 2:-
I note the contents of these paragraphs.
4.
AD PARAGRAPHS 3-6:-
I admit the contents of these paragraphs.
5.
AD PARAGRAPHS 7-10:-
5.1 I note the contents of these pragraphs but I however wish to point out that the lengthy delay in the finalisation of the matter has been caused by the applicant itself which decided to take the arbitration awards in question on review under circumstances where there was no basis whatsoever for so doing.
5.2 Had the applicant complied with the arbitration award which was issued by the CCMA Commissioner in March 2002, the matter would have been finalised at that stage and there would therefore have been no need whatsoever for the applicant to pay the amount which it is now complaining about.
6.
AD PARAGRAPHS 11-13:-
6.1 I deny the allegations which are contained in these paragraphs and I submit that the Labour Court had no basis whatsoever for interfering with the Commissioner’s decision.
6.2 It is my submission that the very fact that the Commissioner decided that I should be reinstated clearly indicates that he must have applied his mind to that particular issue and that he had found that none of the exceptions which are referred to in section 193(2) of the Labour Relations Act were applicable.
6.3 I submit that the reasoning of the Labour Court was totally fallacious in that it came to the conclusion that the Commissioner had failed to apply his mind to the issue of reinstatement merely because it did not agree with his decision on that issue.
6.4 It is also my submission that the Labour Court’s finding that a continued employment relationship would be intolerable was totally unfounded because no evidence whatsoever had been led at the CCMA to support such a finding.
6.5 The Commissioner had in fact found that I had done nothing wrong by disclosing the information in question and the Labour Court had agreed with such a finding.
6.6 It is therefore my submission that it was totally incorrect and absurd for the Labour Court to turn around and say that I should not be reinstated because I had, at some stage, said I would persist in conducting myself in a manner which
the Labour Court itself had confirmed was not wrong.
6.7 It is my submission that the finding of the Labour Appeal Court was simply that the applicant’s conduct in challenging the decision of the Commissioner was not justified and that the applicant should therefore comply with the arbitration award in question.
6.8 I therefore submit that it is totally incorrect to say that the Labour Appeal Court ordered that I should be reinstated retrospectively to a date eight years earlier because the Labour Appeal Court had merely reinstated the Commissioner’s decision which had been erroneously set aside by the Labour court.
6.9 As stated hereinabove, the aforesaid decision was first made in March 2002 and it was as a result of the applicant’s conduct in unjustifiably challenging the same that the emplementation thereof was delayed for such a long period of time, thereby causing serious prejudice to myself and my family
6.10 It is therefore my submission that there was nothing which was unjust or inequitable about the decision of the Labour Appeal Court.
6.11 I also submit that there was no basis whatsoever upon which the Labour Appeal Court could have reduced the period for which the applicant was liable to compensate me by means of backpay and that, had it done so, it would have acted unjustly and inequitably towards me, especially in view of the fact that the applicant is a very large company which can easily afford to pay the backpay in question.
7.
AD PARAGRAPH 14:-
I note the contents of this paragraph.
8.
AD PARAGRAPH 15
8.1 I admit the allegations which are contained in this paragraph but I however submit that the true and correct reason for any dismissal by the applicant was that I had given evidence against it at the arbitration proceedings in question.
8.2 It is therefore my submission that the alleged unauthorised disclosure of company information was merely used as a smokescreen in order to disguise what was essentially an act of intimidation and victimization on the part of the applicant.
9.
AD PARAGRAPH 16:-
9.1 I note the contents of this paragraph but I however wish to point out that the applicant had stated during the CCMA arbitration proceedings that, even if I had requested authorisation to disclose the information in question, I would have been refused permission to do so.
9.2 It is therefore my submission that the applicant’s intention in charging me was to prevent me from contuining to give evidence in support of my fellow employee’s case at the proceedings in question and that the reference to the company rules was merely used in order to justify the disciplinary action against me, which action was in fact intended to intimidate and victimize me.
10.
AD PARAGRAPH 17:-
10.1 Save for denying the contents of subparagraph 17.3, I admit the contents of this paragraph
10.2 Inasmuch as the applicant is trying to create the impression that the Commissioner should have done more than he did before deciding to reinstate me, it is my submission that, if the applicant wanted to avoid my reinstatment, the onus was upon it to adduce the necessary evidence during the arbitration proceedings and that there was no duty whatsoever upon the Commissioner to assist the applicant in this aregard, expecially in view of the fact that it was represented by an attorney at the proceedings in question.
10.3 In the absence of evidence proving the existence of any of the exceptions which are referred to in section 193(2) of the Labour Relations Act, the Commissioner had no alternative but to order that I should be reinstated.
10.4 In any event, the Commissioner had found that I was justified in disclosing the information in question and that I had therefore not done anything wrong by so doing.
11.
AD PARAGRAPH 18:-
11.1 I admit the contents of this paragraph but it is however my submission that the Labour Court erred in reviewing and setting aside the Commissioner’s decision because it had no legal basis whatsoever for so doing.
11.2 I wish to point out that my insistence that I would repeat my actions in similar circumstances occurred at the internal disciplinary hearing at a stage when my attitude was that, firstly, the information in question was not confidential and, secondly, that, even if the information was indeed confidential, I was justified in disclosing the same to the CCMA because the applicant had already disclosed similar information to the same forum in respect of the same proceedings and, thirdly, that the disclosure was protected in terms of the Protected Disclosures Act, no. 26 of 2000.
11.3 It is therefore my submission that I could not have testified otherwise at the disciplinary hearing without abandoning my defence to the charges in question and that there was no need whatsoever for me to show any remorse at that stage because I had not as yet been found guilty of any misconduct.
11.4 Moreover, I repeatedly stated at the CCMA arbitration proceedings that I had not been aware of the fact that the information in question was confidential and that I would not have disclosed the same had I been so aware.
11.5 When I was questioned at the CCMA proceeding regarding the aforesaid evidence, I explained that my insistance was based on the fact that I was under the impression that I was protected in terms of the Protected Disclosures Act and that I would therefore plead guilty for the information in question was indeed confidential and I was not so protected.
11.6 It is therefore my submission that, if the evidence which I gave at the disciplinary enquiry is understood in its proper context, it certainly does not mean that I would continue to deliberately flout the applicant’s rules but what it means is that, at that stage, I did not believe that I had breached any of the rules, and hence my insistence information, should the need to do so arise.
11.7 I also wish to point out that, at that stage, I verily believed that the charges which had been brought against me by the applicant were meant to intimidate me so that I could stop giving evidence at the proceedings in question and thereafter to victimize me for daring to give evidence against the applicant.
11.8 It is therefore my submission that the statement in question certainly does not support the Labour Court’s finding that a continued employment relationship between myself and the applicant would be intolerable, especially in view of the fact that the applicant will always be at liberty to institute disciplinary proceedings against me should I breach any of its rules in future.
11.9 Moreover, the applicant never gave any evidence to the effect that the trust relationship between itself and myself had broken down and it is therefore my submission that the Labour Court had no basis whatsover for making a finding against me in this ragard.
12.
AD PARAGARAPH 19:-
I admit the contents of this pargraph but it is however my submission that the Labour Court had no legal basis whatsoever for interfering with Commissioner’s decision and that it therefore erred in reviewing and setting aside the decision .
13.
AD PARAGRAPH 20:-
I admit the contents of this paragraph but I however submit that the Labour Court
erred in refusing my application for condonation for the reasons which I have stated hereinabove and that the Labour Appeal Court was therefore correct in granting me leave to appeal and in subsequently upholding the appeal.
14.
AD PARGRAPH 21-25:-
I admit the contents of these paragraphs .
15.
AD PARAGRAPH 26:-
15.1 It is my submision that, if an employer wants to rely on any of the exceptions which are referred to in section 193(2) fo the Labour Relations
Act, the onus is upon it to adduce the necessary evidence at the arbitraton proceedings since the arbitrator cannot speculate on the existence or otherwise of any such exception.
15.2 It is therfore my submission that, where the employer does not lead any evidence in order to prove the existence of any othe the exceptions, especially when the employer is legally represented at the arbitration proceedings, the Commissioner is entitled to assume that the employer does not wish to rely on any of the exceptions and to therefore proceed accordingly.
15.3 In this case, the applicant never contended at the arbitration proceedings that my reinstatement would be intolerable and it did not lead any evidence to support such a finding despite the fact that it was represented by an attorney.
15.4 I therefore submit that, on the evidence before him, there was no basis whatsoever upon which the Commissioner could have found that any of the exceptions in question had been proved.
15.5 It is my submission that, reinstatment was in fact the correct remedy in this matter because failure to reinstate me would have enabled the applicant to achieve its objective of victimizing me for giving evidence against it at the proceedings in question.
16.
AD PARAGRAPH 27:-
I admit the contents of this paragraph
17.
AD PARAGRAPH 28:-
17.1 I deny the allegation that the decision of the Labour Appeal Court was wrong and I insist that the same was in fact correct.
17.2 I submit that, since the Commissioner made the decision that I should be
reinstated, he must have applied his mind to that particular issue and that the Labour Court’s decision that he had failed to apply his mind thereto was merely based on the fact that the learned Judge did not agree with the decision in question and on nothing else.
18.
AD PARAGRAPH 29:-
I deny the allegations which are contained in this paragraph and I submit that the Commissioner had in fact applied his mind to the issue in question.
19.
AD PARAGRAPH 30:-
I admit the contents of this paragraph but I however submit that the Commissioner did apply his mind to the issue in question and that he had found that none of the exceptions which are referred to in section 193(2) of the Labour Relations Act had been proved by the applicant, especially in view of the fact that it was never the contention of the applicant that any of the exceptions existed.
20.
AD PARAGRAPH 31:-
I deny the allegations which are contaied in this paragraph and I insist that the decision of the Labour Appeal Court was correct.
21.
AD PARAGRAPH 32:-
21.1 I deny the allegation that this case is about the proper interpretation and application of the Labour Relations Act and that it therefore raises a constitutional issue.
21.2 My submission is that the issue in this matter is a factual one, that is, it is whether the applicant had proved the existence of any of the exceptions which are referred to in section 193(2) of the Labour Relations Act at the arbitration proceedings in question because the contention that the Commissioner had failed to apply his mind to the issue of reinstatement presupposes that the applicant had proved at least one of the exceptions and the Commissioner had ignored the evidence in question.
21.3 I also deny the allegation that the issues raised in this case concern the approach of the Labour Courts to the review of CCMA decisions and I insist that the issue is in fact a factual one as stated hereinabove.
22.
AD PARAGRAPH 33:-
22.1 I deny the allegation that the Labour Appeal Court had ordered that I should be
reinstated for seven years and I submit that what the Labour Appeal Court in fact did was to simply reinstate the arbitration award which was made the Commissioner on the 20th April 2004 and which had been erroneously set aside by the Labour Court at the instance of the applicant.
22.2 It is therefore my submission that there was nothing whatsoever which was unjust or inequitable regarding the decision of the Labour Appeal Court.
23.
AD PARAGRAPH 34:-
Whilst I admit the provisions of the section in question, I deny the allegation that the Labour Appeal Court was dealing with a constitutional matter and I insist that the issue in this matter is factual as stated hereinabove.
24.
AD PARAGRAPH 35:-
I deny the allegation that the the Labour Appeal Court was dealing with a
constitutional matter and I also deny the allegation that the issue raised concerns the interpretation and application of the Labour Relations Act for the reason which I have stated hereinabove.
25.
AD PARAGRAPH 36 AND 37:-
As stated hereabove, I deny the allgation that the Labour Appeal Court was dealing with a constitutional matter and I therefore submit that it had no power
whatsoever to invoke the provisions of section 172(1)(b) of the Constitution.
26.
AD PARAGRAPHS 38-39
26.1 Whilst I admit that the applicant is indeed liable to pay a substantial amount to me in respect of backpay, the fact of the matter is that neither the Labour Court nor the Labour Appeal Court had any basis whatsoever for interfering with the Commissioner’s arbitration award and that what the Labour Appeal Court did was to simply hold that the award should be reinstated.
26.2 It is therefore my submission that the decision of the Labour Appeal Court was correct in all respects and that there was nothing which was unjust or inequitable therein.
27.
AD PARAGRAPH 40:-
27.1 It is my submision that, as stated hereinabove, the only objective which the
applicant wanted to achieve by bringing the charges in question against me was to intimidate and victimize me for daring to give evidence against it at the arbtiration proceedings in question and that it has therefore acted with an ulterior motive all along.
27.2 Even after the arbitration awards had been made against it by two different CCMA Commissioners, the applicant still persisted in taking the matter on review despite the fact that it knew very well that the charges which it had brought against me were trumped up.
27.3 I therefore submit that the applicant has laways been acting in bad faith in respect of this matter and that it should therefore bear the consequences of its conduct.
27.4 As submitted hereinabove, the Labour Appeal Court merely reinstated the arbitration award which had been made by the Commissioner and it had no legal basis whatsoever for interfering therewith.
27.5 It is my submission that it would have been inappropriate and unfair for the Labour Appeal Court to reduce the amount of compensation which was payable to me, especially in view of the fact that it had found that the applicant’s conduct in challenging the arbitration awards in question was not justified.
27.6 I also submit that there is nothing impractical about the reinstatement because, as stated hereinabove, the applicant is a very large company which can easily reinstate me with backpay as ordered by the CCMA.
27.7 In any event, whatever difficulty that the applicant might experience in complying with the arbitration award is of its own making because it persisted in persuing a matter which it should not have started in the first place.
28.
AD PARAGRAPH 42:-
I deny the allegation that the issues in question are constitutional issues and I insist that the issue which arise in this matter has always been a factual one.
29.
AD PARAGRAPH 43:-
I deny the allegations which are contained in this paragraph and I submit that the applicant has no prospects of success whatever in this matter and that it is in fact deliberately seeking merely to delay the inevitable.
30.
AD PARAGRAPH 44:-
30. It is my submission that it is in fact not in the interest of justice for leave to appeal to be granted in respect of this matter because, firstly, there are constitutional issues which are raised therein and, secondly, the applicant does not enjoy any prospects of success whatsoever on the merits of the matter on appeal because it in fact dismissed me for giving evidence against it at the CCMA as stated hereinabove.
30.2 I also submit that, in view of the fact that the applicant is a very large international company, the amount that it is liable to pay to me in terms of the arbitration award in question is totally insignificant and it will therefore not at all be negatively affected thereby.
30.3 It is my submission that this matter does not raise any new principle of law nor does it involve any constitutional isues and that the same therefore does not deserve the attention of the above Honourable Court.
31.
AD PARAGRAPH 45-48
I note the contents of these paragraphs.
WHEREFORE, I pray that the applicant’s application for leave to appeal should be dismissed with costs.
D E P O N E N T I HEREBY CERTIFY THAT THE Deponent has acknowledged that he/she knows and understands the contents of this affidavit which was sworn to and signed before me at DURBAN on this day of 2006, the regulations contained in GNR 1258 dated 21st July 1972 having been complied with.
