County Fair Foods (Pty) Limited v Commissioner for Conciliation Mediation and Arbitration and Others (CA12/1/2001) [2002] ZALAC 31; (2003) 24 ILJ 355 (LAC); [2003] 2 BLLR 134 (LAC) (11 December 2002)

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[2002] ZALAC 31
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County Fair Foods (Pty) Limited v Commissioner for Conciliation Mediation and Arbitration and Others (CA12/1/2001) [2002] ZALAC 31; (2003) 24 ILJ 355 (LAC); [2003] 2 BLLR 134 (LAC) (11 December 2002)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN.
Case
No. CA 12/2001
In
the matter between:
COUNTY
FAIR FOODS (PTY) LIMITED
Appellant
And
COMMISSIONER
FOR CONCILIATION, MEDIATION First Respondent
AND ARBITRATION
U BULBRING N.O.

Second Respondent
OIL, CHEMICAL,
GENERAL AND ALLIED
WORKERS’ UNION obo
J ALEXANDER Third Respondent
JUDGMENT.
DAVIS
AJA
INTRODUCTION.
[1] On 15 September 2000 second respondent
found that Joseph Alexander’s (‘Alexander’) dismissal by the
appellant had been procedurally
unfair. The appellant was ordered to
pay Alexander 10 months and 8 days salary as compensation.
[2] Appellant sought to review the second
respondent’s award. The application for review was dismissed by
Waglay J
on
28 September 2000.
FACTUAL BACKGROUND
[3]. The substantive issue which gave rise to
this dispute concerned the dismissal of Alexander by first appellant
on 30 September
1999 for an assault on a fellow employee, one Bianca
Koopman, on 22 September 1999. A disciplinary enquiry which was
conducted by
Mr Kemp, plant manager of appellant, found Alexander
guilty of assaulting Koopman. Mitigating factors were then presented
to the
enquiry by Alexander as a result of which Kemp imposed a
sanction of twelve months final written warning and a five day unpaid
suspension.
[4] Two days later
Alexander was advised that, following consultation with its senior
management, appellant was of the view that Kemp’s
penalty was
‘contradictory to the principle and precedent [of] the company’.
[5] Mr Godwin Midgley,
general manager, primary processing, then altered the sanction to one
of dismissal. Alexander appealed on
3 October 1999. The minutes of
the appeal held on 14 October 1999 reflect that the sole ground of
appeal was procedural unfairness
– the argument being that the
first sanction must stand. The chairman of this enquiry, Mr
Potgieter, found that the company had
a strong policy in favour of
dismissal in these kind of cases and that insufficient mitigatory
factors existed for the sanction,
as amended, not to be applied.
[6] This decision gave rise to a dispute, which
eventually occasioned an arbitration before second respondent, who
found the dismissal
to be procedurally unfair and ordered appellant
to pay Alexander R22 539,80 within fourteen days of the date of the
award. An application
for the review of this decision was
unsuccessful before the Court
a quo.
[7] Mr Kahanovitz, who appeared on behalf of
appellant, raised two essential attacks against the judgment of the
Court
a quo
,
being the right of third respondent to represent Alexander and the
conclusion on the merits which he submitted was unjustified.
THE RIGHT OF THIRD RESPONDENT TO REPRESENT
ALEXANDER.
[8] The dispute was initially referred to first
respondent. The referring party was cited as being The Farm, Food
and Rural Workers’
Support Association (‘FFRWSA’). On 4 April
2000 FFRWSA sent a fax to first respondent advising that as it could
not contact
Alexander, it could no longer represent him. On 6 April
2000 being the day of the arbitration, Alexander arrived with a
representative
of third respondent, being the union which Alexander
had joined on the same day.
[9] At the commencement
of the arbitration, appellant objected to third respondent’s
presence and its representation of Alexander.
Appellant contended
that, since the party to the dispute was FFRWSA, it could not simply
be substituted by the third respondent.
Since third respondent was
not a party to the conciliation it could therefore not take over the
dispute as a substitute for FFRWSA.
Since the latter had withdrawn,
the dispute had to be referred afresh for conciliation. Second
respondent considered these arguments
and found that FFRWSA had
referred the dispute to conciliation and arbitration in its capacity
as representative of Alexander. When
it withdrew, it did not mean
that the dispute had been withdrawn, a fact which was supported by
FFRWSA advising first respondent
that Alexander would continue to
represent himself at the arbitration proceedings.
[10] Second respondent therefore rejected the
argument of appellant, which argument was also dismissed by the court
a quo
.
In so rejecting this argument
Waglay
J
said ‘The fact that a party, who
refers a dispute on behalf of another, withdraws from the dispute
does not mean, as the second
respondent properly found, that the
dispute is “no longer alive”. If a dispute remains unresolved,
the parties of the dispute,
i.e. the grievant, should be and is
allowed to proceed if he so desires as the grievant is allowed to
proceed with its dispute. He
is entitled to such representation as is
permissible in terms of the Labour Relations Act…..Applicant’s
argument that Alexander
was not a party to the proceedings is so
meritless a point that simply needs to reject it as if anything a
desperate attempt and
a rather superficial one to place barriers in
the way of resolving the dispute that exists between Alexander and
the applicant’
(at para 6 - 7 of the typed judgment)
[11] Mr Kahanovitz
submitted that, absent substitution, the referring party to any
dispute is a particular person (be it a union or
the employee) whose
identity remains the same throughout the process. Where a union is
the referring party with regard to a dismissal
dispute on behalf of a
member the latter has a legal interest in the proceedings. However,
the fact that an employee has a legal
interest does not imply that he
or she is also a party to the proceedings (in a sense that the term
is employed when referring to
an applicant or plaintiff as a party).
[12] An examination of the completed referral
form of first respondent reveals that the referring party was FFRWSA.
The form was signed
on its behalf by one of its officials. FFRWSA
was entitled to refer the matter because Alexander, who was the party
to a dismissal
dispute, was a member of the union. Accordingly FFRWSA
was exercising its right in terms of section 200(1) of the Labour
Relations
Act 36 of 1995 (‘the Act’), and in terms of which,
according to Mr Kahanovitz, Alexander was not named as a party to the
proceedings.
FFRWSA was the referring party and was the
dominus
litis
. Thus appellant need only deal
with FFRWSA and it could accept that any agreement reached between
itself and the union would settle
the dispute before first
respondent. The dismissed employee would not have to be a party to
the agreement because he or she was
not a party to the proceedings.
[13] If, by contrast,
FFRWSA was the referring party and decided, for its own reasons, to
withdraw a referral, that was the end of
the matter. The only
referring party was free to withdraw and, as the agent of its member,
that member was bound by the action of
his or her union. In support
of this argument Mr Kahanovitz referred to Rule 12(5) of first
respondent’s rules which provides:
‘If in any proceedings it
becomes necessary to substitute a person, for an existing party, any
party to such proceedings may, on
application and on notice to every
other party, apply to the Commission for an order substituting that
person for an existing party
and the Commission may make such order
or give such directions as to the further procedure in the
proceedings as it deems fit’.
[14] According to Mr Kahanovitz, as FFRWFA
withdrew from the proceedings, Alexander or third respondent was
obliged to make application
to first respondent to substitute itself
for the existing party. Had third respondent made an application to
become a party at
that time it would have been appropriate to
consider whether a union (third respondent) which had hitherto not
been a party to the
dispute (having neither represented the employee
at the hearing or during the conciliation stage) had
locus
standi
to substitute itself for the
employee’s erstwhile collective bargaining representative.
[15] For this reason, Mr Kahanovitz submitted
that second respondent was, at the very least, obliged to apply her
mind to the Rules
made in terms of section 116 (1)(cA)(iii) of the
Act and the question of whether third respondent with whom Alexander
had signed
up as a member on the very morning and, apparently only
for the purpose of the hearing, was entitled to represent Alexander.
According
to Mr Kahanovitz second respondent had committed an error
of law by considering third respondent’s application for rights of
audience
in terms of section 200(1) of the Act which provides,
inter
alia
that a registered trade union
may act in the interests of any of its members. Section 200(2) of
the Act provides that a registered
trade union is entitled to be a
party to any proceedings if one or more of its members is a party to
those proceedings. Mr Kahanovitz
submitted that a reference in
section 200 to the right to representation is a reference to the
capacity of unions and employer’s
organisations to act in a dispute
as a party.
[16] Mr Kahanovitz
contended that the section which was dispositive of the present
dispute, was section 138(4)(c) of the Act which
provides that, in any
arbitration proceedings, a party to a dispute may appear in person or
be represented only by any member, office-bearer
or officer of that
party’s registered trade union or registered employers
organisation. The reference to ‘union’ in section
138(4)(c) was
to a union which hitherto represented the employee party in the
dispute.
[17] In my view, Mr
Kahanovitz has sought to place an unduly restrictive interpretation
upon these sections. In the present case,
FFRWSA completed LRA Form
713 in terms of section 191 of the Act, the matter in dispute being
described as the alleged unfair misconduct
of Mr Joseph Alexander to
be resolved through arbitration. It meant that there was a dispute
between appellant and the union, which
concerned another party,
being Joseph Alexander. Indeed in the certificate of outcome of
dispute referred for conciliation, the
dispute is described as being
between ‘FFRWSA obo Joseph Alexander and appellant.’
[18] Accordingly,
FFRWSA had done no more than represent a member in a dispute. When
third respondent assumed that role, after FFRWSA
withdrew, it did no
more than represent the affected party to the dispute, being Mr
Alexander. For this reason I find there to be
no merit in the
objection by appellant, namely that second respondent had committed
an error of law by admitting third respondent
to the proceedings,
which error would justify a successful application for review. In
short, there is no basis on which it could
be said, within the
context of the facts of the present dispute, that third respondent
did not fall within s 138(4)(c) as a recognised
representative of
Alexander.
MERITS OF THE CASE
.
[19] The evidence placed before second
respondent was that Kemp was appointed by appellant to chair the
disciplinary enquiry. No evidence
was presented by appellant to
contradict the conclusion reached by second respondent that ‘Kemp
was clearly mandated by the company
to make the final determination
regarding the outcome of Alexander's disciplinary enquiry’. Second
respondent found further that
‘the company’s disciplinary code
and practice does not make provision for intervention or for the
overruling of this sanction
by a more senior manager than the one
appointed to chair the disciplinary enquiry.’
[20] The justification
for interference with Kemp’s decision was contained in a letter
sent to Alexander by Midgley on 30 September
1999 advising Alexander
that his services had been terminated. The relevant portion of the
letter reads as follows:
‘Upon review of the incident that took place
on the night of 22 September 1999 and following consultation with
senior management
and in accordance with previous assault cases where
the company had the precedent of terminating all offenders’
services the company
has found your case identical to previous
assault cases and as such, the penalty handed down by the chairman
was totally contradictory
to the principle and precedent of the
company as established by all previous cases without exception. You
are herewith informed
that the company has overruled the decision of
the chairman of the hearing and your services are herewith terminated
with immediate
effect. No different mitigating circumstances in your
assault case from other cases could be found’
[21] Second respondent
correctly found on the basis on Midgley’s own evidence that his
decision represented the first time that
this kind of intervention
had taken place within appellant’s organisation. In the present
dispute, there was no provision in appellant’s
disciplinary code
which could justify the kind of intervention which Midgley initiated
in order to ensure the dismissal of Alexander.
Alexander’s conduct
was considered by a properly constituted disciplinary enquiry. The
fact that the appellant sought to discipline
Kemp for failing to
comply with company policy and procedures and dismiss Alexander does
not alter this conclusion. This dispute
concerned the unfairness of
interfering with the decision of the disciplinary tribunal which had
properly been appointed by appellant
and, to which interference, no
express provision was contained in the disciplinary code which could
justify the action taken by Midgley.
[22] In
BMW SA
(Pty) Ltd v Van der Walt
2001(21)ILJ
113 (LAC)
Conradie JA
cautioned
against the importation of the principles of
autrefois
acquit
into labour law. He then made
two cautionary remarks: ‘It may be that the second disciplinary
enquiry is ultra vires the employer’s
disciplinary code (Strydom v
Usko Ltd
[1997] 3 BLLR 343
(CCMA) at 350F-G). That might be a
stumbling block. Secondly, it would probably not be considered to be
fair to hold more than
one disciplinary enquiry save in rather
exceptional circumstances.’ (at para 12).
[23] In the present
case appellant acted without recourse to the express provision of its
disciplinary code and on the basis of no
precedent. Second
Respondent decided that the evidence put up by appellant did not
justify interference with the Kemp enquiry. In
my view, there is no
basis for concluding that the decision of second respondent was
unjustifiable, in terms of the evidence which
was presented at the
arbitration hearing. Accordingly the appeal must fail. As the appeal
was not opposed, the issue of costs does
not arise
[24] In the result the
appeal is dismissed.
_____________
DAVIS AJA
I agree.
____________
ZONDO J P
I agree.
________________
DU PLESSIS AJA
Appearances:
For the
Appellant: Adv. C.S. Kahanovitz
Instructed
by: Cliffe Dekker Inc.
Date of Hearing: 26
September 2002
Date of Judgement:
11 December 2002