Coetzee v Lebea NO and Another (J250/98) [1998] ZALAC 26 (11 September 1998)

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[1998] ZALAC 26
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Coetzee v Lebea NO and Another (J250/98) [1998] ZALAC 26 (11 September 1998)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case Number: J250/98
In the matter of:
JOHANNES
LOWEWIK COETZEE
Applicant
and
JUSTICE
LEBEA, N.O.
First Respondent
SANTAM
LTD
Second Respondent
JUDGEMENT
CHEADLE,
AJ:
[1] This is a review of an arbitration award
made by the first respondent, a commissioner appointed by the
Commission of Conciliation,
Mediation and Arbitration in terms of
section 117 (2) of the Labour Relations Act, 66 of 1995 (the ‘LRA’).
The application to
review was brought under
section 145
of the
Labour Relations Act, 66 of 1995
, which provides for the limits and
the procedure for the review of arbitration awards made under the
auspices of the Commission.
The application was not defended by
either the first respondent or the employer, cited as the second
respondent. The first respondent
did not file supplementary reasons.
The facts giving rise to this review
2. The facts that gave rise to the review are
as follows:
(a) On 17 March 1997, the applicant assaulted a
fellow employee, a Mr Khumalo.
(b) The incident was
reported to their branch manager, a Mr Jacobsohn.
(c) The branch manager
did not follow the company’s disciplinary procedure but sought to
‘settle’ the dispute in an informal
manner. The applicant and
the branch manager believed that the complaint was satisfactorily
resolved by this informal intervention.
(d) Approximately two
months later, the assistant general manager for the southern Gauteng
region, a Mr Cornelius learnt of the incident
and immediately
instituted the company’s disciplinary procedures against the
applicant.
(e) After the
disciplinary hearing, the applicant was dismissed.
(f) The applicant
disputed the fairness of the dismissal and referred the dispute to
the Commission in terms of
section 191(1)(b)
of the LRA for
conciliation.
(g) Conciliation proved
to be unsuccessful and the applicant referred the unresolved dispute
to arbitration in terms of
section 191(5)(a).
(h) The first
respondent conducted the arbitration and an award was made to the
effect that the dismissal of the applicant was both
procedurally and
substantively fair. It is that award that is the subject of this
application for review.
Grounds of review
[3] The review is based on the first
respondent’s alleged gross misconduct (paragraph 22 of the
affidavit). Under that head, the
applicant claimed that the first
respondent had (a) failed to apply his mind; (b) ‘entertained
irrelevant and improper considerations’;
(c) and filed to act in ‘a
judicial and proper manner’ (paragraphs 23 and 24 of the
affidavit).
[4] there is not a jot
of evidence that the first respondent did not act judicially or that
he had acted improperly. To accuse the
first respondent, a
commissioner appointed by the Commission of Conciliation, Mediation
and Arbitration, of not applying his mind
is one thing, but to accuse
him of impropriety without substantiating that accusation borders on
contempt. There is not a jot of
evidence that he took irrelevant or
improper considerations into account. Indeed, the applicant himself
testifies that he has no
knowledge of the nature of these
considerations in paragraph 23 of his affidavit. It does a great
disservice to our public institutions
to weigh in with
unsubstantiated claims of impropriety.
[5] That leaves the
charge that the first respondent failed to apply his mind in making
the award. In paragraph 25 of his affidavit,
the applicant details
the grounds upon which that charge is based. That paragraph reads as
follows:
‘Had the First Respondent properly applied
his mind:
(a) he would have realised that convening of my
disciplinary hearing was outside the Second Respondent’s powers and
as such a nullity.
(b) he would have
realised that convening of my disciplinary hearing was in direct
violation of the Second Respondent’s disciplinary
code and as such
a nullity.
(c) he would have
realised that any evidence heard at such disciplinary hearing was
invalid and any finding and as such a nullity;
(d) he would have
reached the decision that the hearing held by the second respondent
was plagued with procedural irregularities,
as conceded in Cornelius
evidence above.
(e) basic fundamental
rules of procedure such as prosecuting together with presiding over
the hearing and not giving me an opportunity
to hear evidence was
blatantly ignored;
(f) he should have
realised that summary dismissal by its very nature is immediate and
having regard to the length of time that had
passed was totally
inappropriate.
(g) that the
relationship between the employees and the employee-employer
relationship had not been irreparably harmed and a continuous
working
relationship was possible.
(h) he would have
realised the Second Respondent’s disciplinary hearing was a farce
with a predetermined conclusion.
(i) he would have
realised [that] while the nature of the offence may warrant dismissal
the facts of this incident did not.
(j) he failed to apply
accepted legal principles as laid out in our case law.
(k) he prevented me
from exercising my constitutional right to legal representation.’
[6] These grounds often
cover the same ground and accordingly it is more convenient to
categorise them.
(a) there is an attack based on the so-called
‘nullity’ of the disciplinary hearing (subparagraphs (a), (b) and
(c));
(b) there is an attack
based on the employer’s conduct of the hearing (subparagraphs (d),
(e) and (h));
(c) there is an attack
on the appropriateness of the sanction of dismissal (subparagraphs
(f), (g) and (i));
(d) there is an attack
based on the first respondent’s failure to apply accepted legal
principles;
(e) there is an attack
based on the first respondent’s decision not to permit the
applicant legal representation at the hearing.
[7] Let me at once deal
with the attacks referred to in the above paragraphs (d) and (e). No
evidence as to what legal principles
the first respondent failed to
apply (other than those contained in the applicant’s attack on the
legal procedural irregularities),
was proffered. The arbitrator’s
exclusion of legal representation was not pursued. No constitutional
right of legal representation
was identified led alone advanced.
The ‘nullity’ of the disciplinary
hearing
[8] The nub of this ground of review seems to
be that the first respondent failed to take into account that-
(a) the company could not institute
disciplinary proceedings against the applicant because the matter was
settled;
(b) the institution of
disciplinary proceedings 3 months after the complaint was in
violation of the company’s disciplinary procedures;
[9] It is not
altogether clear what the applicant intended by stating that the
holding of the disciplinary hearing amounted to a nullity.
But one
must assume that if the matter had been settled as alleged, there was
no need for a dismissal let alone a disciplinary hearing.
[10] Before assessing whether the first
respondent applied his mind to these considerations if is important
to briefly reiterate the
obvious: a review is different from an
appeal. A review concerns itself with the manner in which the
tribunal comes to its conclusion
rather than with its result. An
appeal, on the other hand, is concerned with the correctness of the
result. The two remedies for
challenging the decision of a tribunal
may, on occasion, be co-extensive, particularly if it is the very
process of reasoning that
is the subject of the review. But this
should never constitute a basis for blurring the essential
differences between the two.
The fact that a reviewing court may
have come to a different result if the matter had been brought on
appeal can never be, on its
own, a basis for attacking the process of
reasoning. If it did, then the distinction between appeal and review
would be obliterated.
And whatever effect the constitutional
entrenchment of the right to administrative justice may have on our
common law, it does not
mandate a destruction of the distinction
between these two remedies. What then distinguishes the two remedies
when it comes to applying
them to the reasoning process employed by a
tribunal? It seems to me that the seeds of the distinction lie in
the phrase so commonly
used to describe a process failure in the
reasoning phase of a tribunal’s proceedings - ‘the failure to
apply one’s mind’.
That test is different from the one that
applies to an appeal - namely, whether another court could come to a
different conclusion.
Accordingly, once a reviewing court is
satisfied that the tribunal has applied its mind, it will not
interfere with the result even
if it would have come to a different
conclusion. The best demonstration of applying one’s mind is
whether the outcome
can
be sustained by the facts found and the law applied. The emphasis is
on the range of reasonable outcomes not on the correct one.
[11] Did the first
respondent then apply his mind to the settlement of the dispute and
the lateness of the disciplinary hearing?
It is obvious from the
reasons given in support of the award that the arbitrator considered
both these issues in some detail and
that he advanced justifiable
reasons for holding as he did, namely that the respondent ‘acted
reasonably in instituting disciplinary
proceedings’ against the
applicant. In the passage headed ‘Procedural Fairness’, he
spells out his reasons. A summary of
which is:
(a) he finds that the second respondent acted
with reasonable speed and diligence in instituting disciplinary
proceedings once it
learnt of the assault, any delay in the
institution of those proceedings arose because of the branch
manager’s action in dealing
with the matter informally and not in
accordance with the second respondent’s disciplinary procedures.
It would seem that the
first respondent accepted the second
respondent’s version that this informal procedure was a ‘cover
up’ and there is certainly
enough uncontested evidence recorded
elsewhere in the award that that was a reasonable conclusion to make.
(b) he finds that there was no ‘settlement’.
He says that this is so ‘especially
also
in the light of the concession made by Mr. Jacobsohn that the manner
in which he dealt with the incident involving Mr. Coetzee was
not in
accordance with the company’s disciplinary procedure and did not
constitute disciplinary action’ (the emphasis in mine).
On the
reason, alone, the first respondent has applied his mind and
concluded that because the procedure was by-passed, no procedurally
recognized outcome (ie settlement in so far as the second respondent
was concerned) could flow from it. But it is clear that this
reason,
though a special one for him, is not be only reason for the finding.
That must be the force of the word ‘also’ emphasized
by me in the
quoted text. Although it would be better not to have to determine
these questions by inference, it must follow that
once having found
that there was a cover up, the first respondent must have relied on
the evidence of Mr. Khumalo to the effect that
he ‘was not happy’
if the matter was not taken any further, a piece of evidence
confirmed by the applicant in his founding affidavit
in paragraph
15.2.
(c) he finds that given the seriousness of the
incident and its implications for those employees that witnessed the
assault, the respondent
could not be seen to condone assaults by
whites on black employees. Accordingly the institution of
disciplinary proceedings although
late was reasonable and therefor
not unfair.
The employer’s conduct at the disciplinary
hearing
[12] Other than the irregularity concerning the
late institution of disciplinary proceedings, the applicant alleges
that the following
irregularities were committed by the company in
the conduct of the disciplinary proceedings namely that the chairman
of the enquiry-
(a) also performed a prosecutorial role in the
proceedings (para 25(e) of the applicant’s founding affidavit);
(b) failed to give the
applicant the opportunity to hear evidence (para 25(e));
(c) Spoke to a material
witness in the absence of the applicant (para 13.10);
(d) failed to disclose
that fact to the applicant (para 13.11);
(e) took the advice of
his superior at head office before dismissing the applicant, which
advice was that the applicant should be
dismissed.
[13] It is evident from
the testimony summarised by the first respondent that Mr Cornelius
both investigated the charges against the
applicant and presided over
the hearing. Although I am not of the view that that is necessarily
an irregularity, it is not for me
to decide. The LRA has left that
decision to the commissioners. It is for the commissioners to decide
what amounts to procedural
unfairness in disciplinary hearings.
There is no evidence proffered in respect of the allegation that the
applicant was not given
the opportunity of hearing all the evidence
against him, unless the allegation is a repetition of the allegation
concerning Mr Cornelius’s
conversation with Mr Khumalo. As to the
other allegations, the applicant alleges in the founding affidavit
that Mr. Cornelius, a
witness for the second respondent, gave the
following evidence at the arbitration hearing. I quote from the
affidavit:
‘13.10 He, while presiding over the hearing,
spoke to Khumalo in my absence to find out why he did not want to
testify.
13.11 He never informed
me that he had spoken to Khumalo.
13.12 He spoke to Head
Office and Mr. Bester concerning what finding he should be made
13.13 Mr. Bester advised him that he should be
dismissed.’
[14] All that is said
in the award concerning allegations is a summary of Mr Cornelius’
testimony, which reads as follows:
‘Mr. Cornelius further testified that he
chaired the disciplinary hearing involving Mr. Coetzee. Mr Khumalo
was not present during
the first session of the disciplinary hearing
but only attended the second session. Cornelius gained the
impression on the disciplinary
hearing that Mr. Khumalo was
intimidated by the surrounding of the disciplinary hearing and seemed
to think that he was there only
as a witness. For this he decided to
discontinue with the meeting and asked Mr. Khumalo to make a written
statement about the incident.’
[15] I have before me
the three bald allegations by the applicant and a little context in
the award. There is no record before me.
The applicant did not even
attach the disciplinary code or the agreed minute of the disciplinary
hearing to its application, both
of which appear to have been before
the first respondent. These charges of procedural irregularity are
not mentioned at all in the
first respondent’s award, let alone
dealt with by him. He did not supplement his reasons nor did he
respond to the application.
I do not know whether these allegations
were ever raised in the arbitration hearing, or whether raised, not
pressed. The only inference
that I can draw from what is before me
is that the first respondent did not apply his mind to these attack
on the procedural fairness
of the dismissal. These three allegations
are relevant to any enquiry into the procedural fairness of a
dismissal. Whatever their
eventual weight may be, the applicant has
a right to a reasoned judgment on these issues, particularly when it
is the subject of
a review - that is why the rules provide the
facility for decision makers to supplement their reasons. I
accordingly regard the
first respondent’s failure to apply his mind
to these allegation of procedural unfairness to constitute a gross
irregularity justifying
the setting aside of the award.
Appropriateness of the sanction
[16] The next ground of attack was based on the
first respondent’s failure to take into account the
inappropriateness of the sanction.
This attack boils down to the
first respondent’s failure to take into account the applicant’s
length of service, his clean disciplinary
record, and the fact that
he maintained a good working relationship after the assault. It is
quite evident from the award that the
first respondent applied his
mind to the question of mitigation. He might have not mentioned the
fact of the good working relationship
explicitly in his assessment.
But it is quite clear that he regarded the assault as very serious
misconduct justifying dismissal,
which even 12 years of employment
without fault could not mitigate. A commissioner is obliged only to
give brief reasons in terms
of
section 138(7)(a)
of the LRA. It is
not necessary that the arbitrator give full reasons. But if
challenged on review, an arbitrator ought to expand
on the reasons,
if the application for review calls out for the commissioner to do
so, which this one did. It is important for a
commissioner to
respect both the reviewing party’s right to have an award reviewed
and this court’s role in reviewing awards
by ensuring that the
court has full reasons and the record, or what there is of it, before
it when hearing the review application.
Costs
[17] The applicant seeks costs against both
respondents. Although costs normally follows the result, I do not
think that it is fair
to order the respondents’ to pay the
applicant’s costs for the following reasons:
(a) the applicant made unsubstantiated and
gratuitous allegations against the first respondent;
(b) the applicant
failed to attach the record of the disciplinary hearing, which may
well have had a bearing on the allegations of
procedural irregularity
in respect of which the applicant has succeeded in this application;
and
(c) the narrow basis no
which the applicant finally succeeded in its application to review
the award made by the first respondent.
Conclusion
[18] The award is set aside and remitted back
to the first respondent for a fresh decision. The only issues in
respect of which there
must be fresh consideration before a new award
is made are the allegations of procedural unfairness contained in
paragraphs 13.10
to 13.13 and 25(e) of the applicant’s founding
affidavit dated 19 January 1998 in this application.
[19] There is no order
as to costs
Acting Judge Halton Cheadle
11 September 1998
REPRESENTATIVES
Counsel for
Applicant :
Counsel for First
Respondent :
Counsel for Second
Respondent :
Amicus Curiae :