Associated Additives (Pty) Ltd v Naude and Others (DA17/2002) [2003] ZALAC 20 (20 November 2003)

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[2003] ZALAC 20
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Associated Additives (Pty) Ltd v Naude and Others (DA17/2002) [2003] ZALAC 20 (20 November 2003)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN
JOHANNESBURG
Case
No.:
DA 17/2002
In
the matter between:
ASSOCIATED
ADDITIVES (PTY) LTD
Appellant
and
JOHN
BENJAMIN NAUDE First Respondent
COMMISSIONER
CAHILL NO
Second
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
& ARBITRATION
Third
Respondent
________________________________________________________________________
JUDGMENT
________________________________________________________________________
COMRIE
AJA :
[1.]
The
first respondent (Mr. Naude) was formerly employed by the appellant
company as a fitter. On 1 September 2000, at the conclusion
of a
disciplinary enquiry chaired by the appellant’s Mr. Fountain, Naude
was found to have committed gross misconduct and dismissed.
An
internal appeal to the company’s managing director failed. A
dispute arose between Naude and the appellant about the fairness
of
the dismissal, which dispute Naude referred to the third respondent
(the Commissioner for Conciliation, Mediation & Arbitration)
for
conciliation. When conciliation failed, the matter went to
arbitration before commissioner Cahill, the second respondent, who
dismissed Naude’s unfair dismissal claim. Naude brought an
application before the Labour Court to have the award reviewed and
set aside.
Ngcamu
AJ
, who heard the
review application, held that:
“
The dismissal
of the applicant was substantively fair but procedurally unfair. The
matter is remitted back to the CCMA for the arbitrator
to consider if
there should be any compensation awarded to the applicant on the
basis of procedural unfairness.”
The appellant was ordered to
pay the costs of the review application. The appeal is with leave
granted by the Court
a
quo
.
[2.]
The
stance adopted by Naude’s counsel, Mr.
Nxusani
,
in this Court was as follows. First, he was instructed by his
attorney not to pursue the prior contention that Naude’s dismissal
was substantively unfair either in respect of the finding of guilt or
the sanction. This accorded with his heads of argument which
contained no such contention and which concluded by asking that the
appeal be dismissed with costs and that the order of the Court
below
be confirmed. Second, Mr.
Nxusani
supported the finding of procedural unfairness on two grounds: (a)
bias or partiality on the part of the chairman of the disciplinary
enquiry, which counsel sought to illustrate in various ways; and (b)
the chairman’s failure to afford Naude an opportunity to
mitigate
after conviction and prior to the imposition of sanction. Counsel’s
stance permits a more succinct synopsis of the facts
than would
otherwise have been required.
[3.]
On
17 August 2000, soon after 9:00 am, somebody deflated two tyres of
the vehicle belonging to one Sister Pretorius which was parked
on the
appellant’s premises. Sr. Pretorius is a nursing sister. She was
not an employee of the appellant, but was contracted
through a third
party to provide nursing services to the appellant, for which purpose
she was in regular attendance. When she drove
off more than two
hours later, she realised that something was amiss and stopped her
car after a short distance. A report was made
to her by an employee
from the neighbouring factory. She in turn reported the incident to
the appellant. Naude was charged with
gross misconduct amounting to
sabotage in connection with the deflation of Sr. Pretorius’ tyres.
At the first hearing of the disciplinary
enquiry Naude denied all
responsibility. Fountain informed Naude that according to the
complaint there were eye witnesses. The
enquiry was adjourned to
enable them to be located and their statements taken. Mr. Lotz, of
an independent security company, was
appointed to investigate.
[4.]
Lotz
traced two eye witnesses, Messrs Cornelius and Pillay, and took
statements from them. He handed those statements to Fountain
together with his (Lotz’s) own statement recording his
investigation. At the next sitting of the disciplinary enquiry
Naude, despite
these statements, continued to protest his innocence.
As the witnesses had indicated their willingness to give evidence in
person,
Fountain postponed the hearing so that they could do so. At
the resumed hearing on 1 September 2000, Messrs. Cornelius and Pillay
both identified Naude as the person whom they had seen kneeling next
to Sr. Pretorius’ vehicle at the relevant time, and at which
time
Naude was admittedly in the carpark. At the conclusion of the
evidence, which included that of Naude, Fountain adjourned the
enquiry over the lunch hour to consider the verdict.
[5.]
On
resumption Fountain delivered his verdict of guilty (with brief
reasons) and forthwith imposed the sanction of dismissal (with
brief
reasons). It may be accepted that Naude was not afforded an
opportunity to mitigate, although Fountain may have taken into
account such mitigating circumstances as were known to him.
[6.]
Naude
noted an internal appeal. The appeal was heard by the company’s
managing director, Mr. O’Connor, and was dismissed. We
do not have
a record of the appeal, but from other documents and the affidavits
we have some idea of what transpired. As I have
already mentioned,
Naude failed at arbitration, but succeeded on the basis of procedural
unfairness on review of the award. I turn
to consider the grounds
advanced by Mr.
Nxusani
in support of the judgment of the Court below.
[7.]
With
regard to the first main ground – bias or partiality – it should
be noted that the merits of Naude’s conviction were not
re-tried
de
novo
before the
commissioner. This seems to have been a matter of policy adopted by
the parties. Neither before the Court
a
quo
, nor before
this Court, was the case advanced for Naude that there should have
been a complete re-trial. What actually happened
was that the
commissioner in effect sat in quasi-review of the disciplinary
enquiry; a transcript of those proceedings was placed
before him
together with some oral evidence. At the arbitration attention was
concentrated on the conduct of the disciplinary enquiry
and its
chairman. The matter in the Court
a
quo
, however, was
a review of the commissioner’s award and not of the disciplinary
enquiry. The focus changed. The true issue before
Ngcamu
AJ
was not whether
the chairman of the disciplinary enquiry was biased or partial, but
whether the conclusions of the commissioner in
this connection were
reviewably wrong. It seems to me that Naude’s founding affidavit
scarcely made out a case in this respect.
I intend nonetheless to
consider counsel’s submissions since, on the restricted basis
indicated earlier, the matter was fully
argued.
BIAS
OR PARTIALITY
[8.]
Counsel
relied firstly on an altercation between Fountain and Naude shortly
before the tyre incident. It related to events which
may have
sparked that incident. It appears that Naude was sent home to shave
the stubble off his chin, and that this accounted for
his presence in
the carpark at the relevant time. In terms of a recent company
ruling, employees who wore protective masks (such
as Naude) were
required to be clean shaven for health reasons. Naude resented the
ruling which he erroneously blamed on Sr. Pretorius.
It was on the
subject of the stubble and the masks that Naude and Fountain had
words or an exchange which Naude describes in his
affidavit as
“heated”. Fountain regards that description as exaggerated. It
emerged at the arbitration, however, that at the
internal appeal
hearing Naude had apologised to Fountain for the allegation of bias.
There is some dispute as to the ambit of the
apology, but it is clear
that it at least referred to the suggestion of bias following upon
the altercation. In the circumstances
it seems to me that there is
no real substance in counsel’s first point.
[9.]
Counsel’s
second point was that Fountain played the roles of investigator,
prosecutor and judge all at the same time, and that this
was contrary
to fundamental tenets of fairness. This is essentially the first
ground upon which the Court
a
quo
found
procedural unfairness and overturned the arbitrator’s award. It
should be borne in mind that this was not a trial in a
court of law,
but a disciplinary enquiry conducted by a layman. Fountain’s
investigative role was minimal. He was aware from
the terms of Sr.
Pretorius’ complaint that there were said to be two eye witnesses.
When the charge was put to Naude, he denied
guilt. There was in my
opinion no requirement that a dossier, replete with witnesses’
statements, should have been available at
that stage. I think it was
in order to put the charge to Naude, at the first hearing, so as to
elicit a response. Naude might have
admitted guilt. But when he
denied responsibility, and made it clear that he denied interfering
with the Sister’s vehicle in any
way, Fountain properly postponed
the matter for further investigation. Wisely, Fountain did not
pursue that investigation himself,
but caused it to be undertaken by
an independent third person, Lotz.
[10.]
Fountain
saw the statements taken by Lotz, as well as Lotz’s own statement.
Copies were given to Naude and his representative at
the second
hearing. Naude’s reaction thereto was elicited. When Naude
persisted in denying guilt, Fountain concluded that there
was a case
to meet and that the two eye witnesses should be called to give
evidence. I cannot fault either conclusion. Having read
the
statements of Cornelius and Pillay myself, I am satisfied that there
was a case to meet. Furthermore, to have tried the matter
on those
statements, without hearing their evidence in person, would have been
disastrous. The postponement was unavoidable in the
circumstances.
Fountain did not interview these two witnesses before they gave their
evidence at the adjourned hearing. Fountain’s
investigative role
is above criticism.
[11.]
Mr.
Nxusani
submitted further that Fountain also acted as prosecutor. It is true
that there was no
pro
forma
prosecutor
as one would have in a criminal trial. There can be no general rule
that a designated prosecutor is required in every
disciplinary
enquiry; the need or otherwise must depend on the circumstances of
the case. Where there is no separate prosecutor,
the chairperson
should take care not to muddle the roles. A measure of intervention
is permissible, as in a trial, provided the
chairperson does not
assume the prosecutor’s mantle. I have studied the record of the
enquiry in the present matter which, though
not verbatim, appears to
be a fairly full summary of what occurred. It is evident that
Fountain, as chairman, kept a firm hand on
the proceedings, and was
intent on focussing on the essentials. Hence his rulings on
permissible evidence and cross-examination.
I do not gain the
impression , however, that Fountain descended into the arena or
otherwise assumed a prosecutorial role. In any
event it must be
borne in mind that a disciplinary enquiry is not a court hearing.
What is important is that the employee must be
given a fair
opportunity to present his case before a decision is taken which may
affect him adversely.
[12.]
I
conclude that Fountain cannot be said in any real sense to have acted
at one and the same time as investigator, prosecutor and judge.
If
he did, his conduct was of such a nature that it did not result in
the employee being deprived of a fair opportunity to be heard.
The
inference of bias or partiality accordingly falls away.
[13.]
Mr.
Nxusani
relied on two other supposed improprieties which he submitted were
suggestive of bias. They were that Fountain saw the statements
of
the witnesses before they testified and that he “consulted” with
Lotz. In my opinion there was no harm in Fountain seeing
the
statements in advance. He needed to know whether the two eye
witnesses from the factory next door were of any potential value.
If
not, there would have been no point in calling them. The statements
of Cornelius and Pillay were in any event put in as evidence
and the
two men were cross-examined on them. There was no material
irregularity, let alone one indicative of partiality. The alleged
consultation with Lotz is difficult to fathom, as it was not
canvassed in the evidence before the commissioner or the Court
a
quo
. The only
reference that I can find to it is in Naude’s appeal document under
the date 23/08/2000. It reads:
“
Rod Fountain
informed me that he had contacted Shield Security to investigate the
matter as it was a reliable Company.
I saw Peter
Butler, Rod Fountain and E. Lotz talking to each other. I presumed
that it was about the case.”
Under the date
29/08/2000 Naude wrote:
“I
saw Mr. E. Lotz hand Rod Fountain a brown envelope.”
[14.]
The
23
rd
of August was the date upon which Lotz was commissioned to undertake
the investigation. Butler was an employee of the appellant
who
assisted Lotz. It can safely be inferred that the conversation was
about the proposed investigation and not about its outcome.
We know
from elsewhere in Naude’s own document that the brown envelope
contained the statements of Lotz, Cornelius and Pillay.
There is
accordingly no question of an improper consultation between Fountain
and Lotz.
[15.]
For
the sake of completeness I mention a further suggested impropriety
(not linked to bias) raised in counsel’s heads of argument
but not
during his address. It is that the complainant, Sr. Pretorius, was
given copies of the witnesses’ statements. However,
this occurred
when she gave her evidence and not beforehand. Having perused the
statements she verified their contents as far as
her knowledge went.
She then gave her own evidence. There is no semblance of an
irregularity here.
[16.]
Finally,
on this leg of the case, Mr.
Nxusani
asked us to have regard to the impression created by the whole
disciplinary process and not merely to the individual constituent
criticisms. The insuperable difficulty in the way of this approach
in the present case is that I can find no real substance in any
of
the constituent criticisms which counsel advanced on appeal. In any
event, save in the respect still to be considered, my overall
impression is that practical justice ran its course.
[17.]
It
appears to me that the Court
a
quo
erred
fundamentally in upholding this first ground of procedural
unfairness. It set norms and rules more appropriate to a fully
fledged criminal trial than to a disciplinary enquiry in the
workplace. I have analysed above the several criticisms laid at
Fountain’s
door and found each of them to be unsustainable. The
evidence before the Court below, assessed in the light of appropriate
norms
and rules, does not in my view rationally justify the
conclusion at which the learned Judge arrived.
OPPORTUNITY
TO MITIGATE
[18.]
The
disciplinary enquiry adjourned over the lunch hour to consider its
verdict. When it reconvened, Naude was convicted and then
immediately sanctioned (i.e. dismissed). He was not afforded an
opportunity, prior to the imposition of the sanction, of mitigating
his position by way of evidence or argument. Mr.
Nxusani
submitted that such omission constituted procedural unfairness.
There is, however, more to the story. When Naude appealed
internally,
the absence of an opportunity to mitigate does not appear
to have been one of his complaints. The appeal was heard by Mr.
O’Connor,
the managing director. In the appellant’s opposing
affidavit in the Court below the following is stated at para. 61:
“
The Second
Respondent avers that when the appeal Chairman brought to the
Applicant’s and his representative’s attention the “mitigating
circumstances” clause he was advised by the Applicant’s
representative that the Applicant “was not prepared to go this
route”.”
This
drew the following reply from Mr. Naude:
“
Ad
paragraph 61
I was not
prepared to go this route because we told the
Appeal Chairman
that I did not commit the infraction.”
[19.]
Consistently
herewith the absence of an opportunity to mitigate was not one of
Naude’s complaints at the arbitration. The omission
was elicited
by the commissioner, it would seem as part of a check- list. Since
it was not a complaint as such, Fountain did not
deal with it, nor
was he asked by the commissioner to do so. Had the issue been raised
as a complaint, we know in retrospect what
the appellant’s answer
would have been. In his award the commissioner said:
“
Once the
chairperson of the disciplinary hearing had come to a conclusion
based on a balance of probabilities, he would have then
considered
the aggravating and mitigating circumstances.”
It is difficult
to perceive on what evidence this conclusion was based, because the
issue was not canvassed with Fountain.
[20.]
In
the review application Naude took the matter further . He alleged
that the appellant had failed inter alia to take into account:
(i)
his long service record; (ii) his exemplary service; and (iii)
any mitigating factors. Naude also attacked the commissioner’s
finding quoted above and stated that: “the chairperson made no
reference to the aggravating and mitigating circumstances when
he
gave his judgment”. In its opposing affidavit the appellant
claimed that Fountain did take mitigation into account, including
Mr.
Naude’s service record and exemplary service. The appellant did
not claim that Naude had been afforded an opportunity to mitigate.

Its answer instead was that quoted earlier, namely that Naude had
been given the opportunity on appeal but had declined “to go
this
route”. This was admitted in reply by Naude. This part of the
evidence appears to have been overlooked by the Court below.
[21.]
The
Court
a quo
held:
“
The perusal
of the record as well reveals that the applicant was not afforded any
opportunity to present mitigating factors at the
time of the hearing.
The chairperson did not indicate what he took into account in
arriving at the sanction that he imposed on the
applicant. The
arbitrator, however, found that on a balance of probabilities the
chairperson would have considered aggravating and
mitigating
circumstances. In my view this was an assumption by the arbitrator.
There is no basis for this conclusion in the absence
of any evidence
either on the record of the arbitration hearing or also on the record
of the disciplinary hearing. What appears
is that the chairperson
found the applicant guilty and then imposed a sanction without any
chance to mitigate on the part of the
applicant. The chairperson
should have given the applicant an opportunity to present his case on
mitigating factors and this was
not done. There was in my view no
rational basis justifying the conclusion that the mitigating
circumstances were taken into account
by the chairperson.”
[22.]
I
shall assume that Fountain, when deciding on the appropriate
sanction, took into account such mitigating circumstances as were
known
to him. I agree that that was insufficient. There may have
been circumstances, unknown to Fountain, that could have been urged
upon him by Naude or his representative. Moreover, Naude or his
representative may have been able in argument to present known
circumstances
in a different and persuasive light. The failure to
afford Naude an opportunity to mitigate prior to the imposition of
the sanction
of dismissal appears to me to have amounted to
procedural unfairness. But that all changed on internal appeal
before O’Connor
when Naude declined the opportunity to advance
mitigation. The earlier unfairness was rectified. Compare
Johnson
& Johnson (Pty) Ltd v. CWIU
[1998]
12 BLLR 1209
(LAC) at 1210 I.
[23.]
As
I have already said, this last mentioned aspect of the matter appears
to have escaped the attention of the Court
a
quo
. There is no
reference to it in the judgment, and there is not even a passing
reference to
Johnson’s
case or to the principle there laid down. I have little doubt that
had
Ngcamu AJ
addressed this ground of procedural unfairness in the light of
all
the evidence, including the evidence relating to the internal appeal,
he would have reached a different conclusion. His finding
, quoted
earlier, cannot in the circumstances be allowed to stand.
CONCLUSION
[24.]
It
follows from what I have said that the appeal must succeed with
costs. The order granted by the Court
a
quo
is set aside
and replaced by an order that:
“The
application is dismissed with costs.”
_________________________
R.G.
COMRIE
Acting Judge
of Appeal
I
agree.
_________________________
R.M.M.
ZONDO
Judge
President
I
agree.
_________________________
M.T.R.
MOGOENG
Judge of
Appeal
APPEARANCES
:
For
the appellant :
Adv.
K.C. McIntosh
Instructed by :
Shepstone
& Wylie, Durban
For
the 1
st
Respondent :
Adv.
J. Nxusani
Instructed
by :
Pungi Pillay
& Associates, Rossburgh
Date
of hearing :
4
June 2003
Date
of judgment :
20
November 2003