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[2014] ZAGPJHC 439
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Ross Poultry Breeders (Pty) Ltd v SABAWU obo Dlamini and Others (R1889/2009) [2014] ZAGPJHC 439 (17 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case No: R1889/2009
In
the matter between:
ROSS
POULTRY BREEDERS (PTY)
LTD
...........................................................................
Applicant
and
SABAWO
obo AMOS
DLAMINI
...............................................................................
First
Respondent
COMMISSIONER
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
......................................................................
Second
Respondent
COMMISSIONER
PRINCE KEKANA
N.O
..........................................................
Third Respondent
Heard:
16 January 2014
Delivered:
17 June 2014
Summary:
Test on review re-stated. Application for review succeeded on the
basis that the Third Respondent failed to appreciate
the nature and
meaning of the evidence before him and reached a conclusion that was
outside the band of reasonable decisions which
could be supported by
the evidence.
JUDGMENT
SNIDER,
AJ
[1]
Before I consider the merits of this
matter, there are two interlocutory applications before me.
[2]
The first such application is an
application for the rescission of the order of Gush J made on 19
October 2012 when this matter
was last on the roll in terms of which
the matter was dismissed due to the non-appearance of the Applicant.
[3]
The second interlocutory application is an
application by the First Respondent for condonation for the late
service and filing of
his answering affidavit.
[4]
I do not think that it is necessary to deal
with the detail of these applications as, in my view, to a large
extent their success
or failure depends on the merits of the matter.
[5]
I have considered the merits of the matter
from both the Applicant’s and the First Respondent’s
perspective and have
come to the conclusion that both parties have a
case to be adjudicated on the merits; and it is therefore the best
course of action
for me to grant the interlocutory applications,
which I hereby do, and deal with the substantive merits of the
matter.
[6]
What
is then before me is a review application in terms of which the
Applicant seeks to set aside an award made by the Third Respondent
(“the Commissioner”) in terms of which the Commissioner
found that the employee’s dismissal was procedurally
fair but
substantively unfair and made an award reinstating him into the
employment of the Applicant on terms and conditions no
less
favourable to him than those which governed the employment
relationship prior to his dismissal and such reinstatement to operate
retrospectively from 13 October 2008
[1]
.
[7]
The award was made on 25 June 2009.
[8]
Briefly, the facts of this matter are that
the employee worked for the Applicant, prior to his dismissal, as a
supervisor at one
of its chicken farms known as Schickfontein.
[9]
Part
of the process of farming chickens is to ensure that the nest boxes
in which the chickens are kept are clinically clean so
as to avoid
diseases. To this end, the Applicant uses formaldehyde “prills”
to disinfect the shavings in the nest boxes
to prevent contamination
of the eggs.
[2]
[10]
Prills are fine granules that form a powder
when broken down. The prills will cause sever irritation if they come
in contact with
the eyes.
[11]
On the relevant day, being 19 August 2008,
a senior manager of the Applicant, Marius Gericke (“Gericke”)
and two other
managers Russell Marriot and Ahmed Engar attended at
the place of work of the employee apparently to do an inspection of
sorts.
[12]
Part of the inspection to assist with the
control of prills is by utilising a check sheet recording the amount
of prills used by
weight. This amount is recorded and deducted from
an opening stock figure. The stock of prills is then weighed and
checked against
the total of prills on the check sheet.
[13]
Gericke was unhappy when it emerged that
there was a discrepancy in the weight and then decided to weigh the
contents of the measuring
cup that was used to put the prills into
the nest box.
[14]
Clearly, on both parties’ versions,
Gericke was significantly aggravated with the discrepancy that he had
found and when he
perceived the employee to be interfering in the
weighing process, he took the cup of prills from him and threw it
down on a table.
[15]
The employee alleges that the act of
throwing down the prills caused some prills to go into his eyes and
caused them to become red
and inflamed.
[16]
The precise details of this incident and
whether it was prills from this particular incident that caused the
irritation to the employee’s
eyes are not factual findings
which need to be made for the purposes of this judgment.
[17]
The charge that was levelled against the
Applicant was that he had been dishonest in making a false statement
specifically:
‘
It
is hereby alleged that you were dishonest on or about Tuesday, 19
August 2008 in that you proceeded to in a deliberate manner
make
false statements against Mr Marius Gericke, which false statements
were of an extremely serious and derogatory nature and
specifically
aimed at not only jeopardising Mr Gerickes position with the company
as Chief Operating Officer but to further jeopardise
the good
standing and overall image of Mr Gericke as an upstanding and well
respected colleague of yours.’
[18]
It does not appear to be in dispute that
there was a rule of the Applicant to the effect that false statements
of this nature constituted
misconduct and could lead to dismissal.
[19]
It appears that the “false
statements” were constituted by the employee approaching the
South African Police Services
(“SAPS”) to make a
complaint against Gericke. Again, it is common cause that such an
approach was made by the employee.
[20]
The crisp question for determination by the
arbitrator was then whether the statement made by the employee to the
SAPS was false.
[21]
The Applicant’s grounds of review are
essentially twofold:
21.1.
that the Arbitrator conducted himself in a
manner that indicated bias on his part and which prevented the
Applicant from having
a proper opportunity to ventilate its case and
have a meaningful hearing of its case; and
21.2.
the Arbitrator disregarded the full
conspectus of the evidence in relation to the statement made by the
Employee to the SAPS.
[22]
These two factors, in the Applicant’s
submission, render the Commissioners award reviewable.
[23]
With
respect to the conduct of the Commissioner although it clearly
appears, from the record that he was robust and unforgiving
in his
attitude towards Frederick Snyman (“Snyman”), the
deponent to the Applicant’s founding affidavit and the
individual who both gave evidence for and ran the matter on the
Applicant’s behalf at the arbitration, it does not seem that
Snyman was the only victim of the Commissioner’s barbed tongue.
For example, on one occasion, he says to the employee “shut
up
and listen”.
[3]
There are
other parts of the record where the Commissioner appears to, if
anything, assist the Applicant.
[4]
I am, therefore, not inclined to review the award on the basis of the
Commissioner’s conduct.
[24]
To the extent that Snyman ceased
cross-examining the employee due to an altercation with the
Commissioner, this was Snyman’s
doing and he should have
adopted a more robust approach.
[25]
In any event, the evidence was sufficiently
fully ventilated to enable the arbitrator to make a decision.
Similarly, I am able,
on the strength of the record, able to assess
the reasonableness of the arbitrators finding.
[26]
The question then becomes whether, on the
evidence before the Commissioner, a Commissioner acting reasonably
could come to the same
conclusion that the Commissioner came to.
[27]
There are perhaps three central questions
which the Commissioner was bound to have regard to in his assessment
of precisely what
statement was made by the employee when he
approached the SAPS:
27.1.
why the SAPS would have investigated the
matter to the extent of sending officers to the Applicant’s
premises and seeking
to interview Gericke, both of which events seem
to be common cause, if no charge of assault had been laid, which the
employee alleged
in his evidence, that is to say that he stated to
the police that there was no intention on the part of Gericke to harm
him;
27.2.
why the employee would go to the SAPS and
make a complaint which, amounted, on his version at the arbitration,
to nothing more than
the negligent slamming down of a cup of prills
on a table which act was not intended to harm him; and
27.3.
Why there was a discrepancy, on the
evidence of Snyman and various other admissions (which I will deal
with below) that a charge
of assault had been made.
[28]
If regard is had to the evidence of Snyman
in relation to what was said by the employee at the disciplinary
enquiry it is clear
that a criminal complaint was made by the
employee and was not simple a matter of, as per the Applicant’s
evidence, conceding
to the SAPS officers present when he made the
statement that it was simply a matter of negligence on the part of
Gericke and that
Gericke had no intention to harm the employee. The
Commissioner had no basis upon which to disbelieve Snyman in this
regard given
that his version was corroborated by other evidence to
this effect.
[29]
The following corroborative evidence was
before the Commissioner. Snyman gave evidence which was not
challenged by the employee
or his representative that the employee
confirmed during the disciplinary enquiry that he has approached the
SAPS to lay a criminal
charge against Gericke.
[30]
The submissions made on behalf of the
Applicant in respect of Snyman’s version of what transpired at
the disciplinary enquiry
not being challenged are, of course,
correct. It is trite that if it is to be argued that a witness is not
to be believed the version
upon which it will be relied to make that
argument must have been put to the witness.
30.1.
In
Smal
v Smith
[5]
where his Lordship Mr Justice Claasen said:
‘
it
is, in my opinion, elementary and standard practice for party to put
to each opposing witness so much of his own case or defence
as
concerns that witness, and if need be, to inform him, if he has not
been given notice thereof, that other witnesses will contradict
him,
so as to give him fair warning and an opportunity of explaining the
contradiction and defending his own character. It is grossly
unfair
and improper to let a witnesses evidence go unchallenged in cross
examination and afterwards argue that he must be disbelieved.’
30.2.
This
decision was cited with approval by his Lordship Mr Justice Francis
in the matter of
Masilela
v Leonard Dingla (Pty) Limited
.
[6]
30.3.
The
judgment in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[7]
is similarly relevant in this regard:
‘
[61]
The institution of cross examination not only constitutes a right, it
also imposes certain obligations. As a general rule it
is essential
when it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct the witnesses
attention to the
fact by question put in cross examination showing that the imputation
is intended to be made and to afford the
witness an opportunity,
while still in the witness box, of giving any explanation open to the
witness and of defending his or her
character. If a point in
dispute is left unchallenged in cross examination, the party calling
the witness is entitled to
assume that the unchallenged witnesses
testimony is accepted as correct. This rule was enunciated by
the House of Lords in
Browne v Dunn
(1893) (6) R 67 (HL) and
has been adopted and consistently followed by our courts.”
[62]
The rule in
Browne v Dunn
is not merely one of professional
practice but is essential to fair play and fair dealings of
witnesses. It is still current in
England and has been adopted and
followed in substantially the same form in the commonwealth
jurisdictions.
[63]
The precise nature of the imputation should be made clear to the
witness so that it can be met and destroyed, particularly
where the
imputation relies upon inferences to be drawn from other evidence in
the proceedings. It should be made clear not only
that the evidence
is
to be challenged
but also
how it is to be challenged
.
This is so because the witness must be given an opportunity to deny
the challenge, to call corroborative evidence, to qualify
the
evidence given by the witness or others and to explain contradictions
on which reliance is to be placed.
30.4.
The
President
of the Republic of South Africa
decision (
supra
)
was referred to with approval by His Lordship Mr Justice of Appeal
Nicholson in the matter of
General
Food Industries Limited v Food and Allied Workers Union.
[8]
[31]
It simply does not make sense that in a
situation where the employee appears to believe, in terms of his
testimony that the action
of Gericke which caused prills to get into
the employee’s eyes was not deliberate or intended to harm him
that he would under
those circumstances report the matter to the
police.
[32]
At best for the employee, he would lodge a
grievance and take the matter up internally.
[33]
It is, by the same token, clear to me that
Gericke acted in a manner which was less than satisfactory given his
position as a senior
manager of the Applicant and that a grievance
could have legitimately have been laid against him. A criminal
complaint could not
have been.
[34]
Similarly, it is highly improbable that the
SAPS would choose to investigate such a matter where the complainant
himself acknowledges
that the conduct of the person against whom the
complaint is made was not intentional.
[35]
In my view, the irresistible conclusion
which these facts lead me to come to is that the employee went much
further, when he approached
the SAPS, than make a complaint about an
unintentional act on the part of Gericke which resulted in him having
prills in his eyes
and his eyes becoming red and bloodshot.
[36]
In all likelihood, he did indeed make a
complaint that he had been assaulted which, if regard is had to the
circumstances and the
charge, was not honest.
[37]
The Commissioner did certainly make some
rather odd findings. He seems to have formed a view that the
statement must have been a
written one and could not seem to see past
the failure of the Applicant to produce same.
[38]
The
Commissioner deals with the central issue in the matter really in
only one part of his award.
[9]
It is worth repeating this paragraph for the purposes of analysis:
‘
The
Employee testified before me and at the disciplinary hearing that he
reported to the Police that he had prills in his eyes because
Mr
Gericke spilt the prills out of anger. He has never said anywhere
that he was assaulted or that the prills were thrown at him.
His
version is probable because the police informed him that if it was
not intentional it is not assault. The Employee (sic) version
is made
more probable by the Employers version that the Prosecutor decided
not to prosecute.’
[39]
Apart from incorrectly recording the
evidence, the Commissioner demonstrates a level of lack of
reasonableness when he states that
the version is probable because
the police informed him that ‘if it was not intentional it is
not assault’. What this
in fact implies is either that the
employee reported an assault or that the entire version is, and this
is the more probable scenario,
a fabrication.
[40]
I am, accordingly, of the view that no
reasonable Commissioner, on the evidence before the Commissioner,
could come to the same
conclusion which the Commissioner came to.
[41]
There
have been two significant recent decisions in regard to the test on
review in circumstances such as this which, in essence,
endorse the
approach taken by the Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others.
[10]
The decisions I refer to are those in
Herholdt
v Nedbank Limited (
Congress
of South African Trade Unions as Amicus Curiae)
[11]
and
Goldfields
Mining (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation,
Mediation and Arbitration and Others
.
[12]
[42]
The
following is, with respect, a useful exposition of the test from the
judgment of Waglay JP in the Kloof decision
[13]
‘
Sidumo
does not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that evaluation,
determination of the reasonableness of the decision arrived at by the
arbitrator. The court in
Sidumo
was at pains to state that arbitration awards made under the Labour
Relations Act (“the LRA”) continued to be determined
in
terms of section 145 of the LRA but that the constitutional standard
of reasonableness is “suffused” in the application
of
section 145 of the LRA. This implies that the application for review
sought on the grounds of misconduct, gross irregularity
in the
conduct of the arbitration proceedings, and/or excess of powers will
not lead automatically to setting aside of the award
if any of the
above grounds are found to be present. In other words, in the case
such as the present where a gross irregularity
in the proceedings is
alleged, enquiry is not confined to whether the arbitrator
misconceived the nature of the proceedings, but
extends to whether
the result was unreasonable, or put another way, whether the decision
that the arbitrator arrived at is one
that falls in a band of
decisions to which a reasonable decision maker could come on the
available material.’
[43]
It is simply not reasonable bearing in mind
the undisputed evidence of Snyman and the actions of the employee and
the SAPS to come
to the conclusion that the employee approached the
SAPS to report what may have been ugly, but was certainly not
criminal, conduct
on the part of Gericke. What the Applicant did was
indeed mischievous and intended to do harm to Gericke in an
unwarranted manner.
[44]
In light of my findings above, I have
considered the appropriate order. Given that I have found that no
other Commissioner could
reasonably come to the same conclusion as
the Commissioner came to and the fact that there is a comprehensive
record before me,
I make the following order:
44.1.
the award of the Commissioner, save for his
finding in respect of procedural fairness, dated 25 June 2009 under
case number GAJB32267-08
is reviewed and set aside;
44.2.
the award is substituted with the following
finding –
44.2.1.
the dismissal of the Second Respondent was
substantively fair;
44.2.2.there
is no order as to costs.
__________________________
SNIDER A J
Acting Judge of the
Labour Court
Appearances
For
the Applicant: Advocate M Aggenbach
Instructed
by: Attorney Grant Marinus of Werksmans Attorneys
For
the First Respondent: S Nyawuza – A Union Official
[1]
The award appears at page 26 of the paginated papers and the relief
granted appears on page 31 at para 32.
[2]
Applicant’s founding affidavit page 11 of the paginated papers
at para 8.2.7.
[3]
Page 399 of the record, line 7.
[4]
Page 413 and 414 of the transcript; page 417 of the transcript where
the Commissioner is unequivocal and direct with the Employee
when he
says “you can’t answer the question with a question. As
a witness you have only one duty, to answer questions.”
Further examples appear at pages 421 and 424 where the Commissioner
attempts to extract the very numb of the evidence in relation
to
whether a charge of assault was laid or not.
[5]
1954 (3) 434 (SWA) at 438.
[6]
2004 (25)
ILJ
544 (LC) at para 29.
[7]
2000 (1) SA 1
(CC) at paras 61 to 63.
[8]
(2004) 24 ILLJ 1260 (LAC).
[9]
At page 30 of the pleadings bundle at para 25.
[10]
[2007] 12 BLLR 1097 (CC).
[11]
(2012) 33
ILJ
1789 (LAC).
[12]
2014 35
ILJ
943 (LAC).
[13]
Kloof
(supra) at para 14.