Semenya and Others v Commission for Conciliation Mediation and Arbitarion and Others (JA26/2003) [2006] ZALAC 2; [2006] 6 BLLR 521 (LAC); (2006) 27 ILJ 1627 (LAC) (23 March 2006)

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Semenya and Others v Commission for Conciliation Mediation and Arbitarion and Others (JA26/2003) [2006] ZALAC 2; [2006] 6 BLLR 521 (LAC); (2006) 27 ILJ 1627 (LAC) (23 March 2006)

33
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case No:
JA26/2003
In the matter between
I.A.M SEMENYA SC
1
ST
APPELLANT
I.
V MALEKA
2
ND
APPELLANT
L.
T SIBEKO
3
RD
APPELLANT
L.
J. BOKABA
4
TH
APPELLANT
and
THE COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
1
ST
RESPONDENT
TSHILA
MONYAI NO
2
ND
RESPONDENT
H.
N HLATSWAYO
3
RD
RESPONDENT
___________________________________________________________
JUDGMENT
ZONDO JP
Introduction
[1]
This
is an appeal from a judgment and order of Waglay J sitting in the
Labour Court. In terms of that judgment Waglay J dismissed
an
application that had been brought by the appellants against the
respondents to have an arbitration award that had been issued
by the
second respondent under the auspices of the first respondent in
favour of the third respondent reviewed and set aside. The
arbitration award was to the effect that, although the appellants’
dismissal of the third respondent was for a fair reason, it
was
procedurally unfair. In terms of that award the appellants were
ordered to pay the third respondent compensation equivalent to
the
amount of remuneration that she would have been paid for the period
from the date of dismissal to the last date of the arbitration
hearing. Waglay J refused the appellants leave to appeal. They then
petitioned the Judge President of this Court. This Court granted
them
leave to appeal; hence this appeal. Before I can consider the appeal,
it is necessary to set out the background to, and the
relevant facts
of, this matter.
The facts
[
2
]
The
facts that need to be set out in this matter are those that are
relevant to the finding of the second respondent that the appellants’
dismissal of the third respondent was procedurally unfair. I do not
have to set out any facts relevant to the finding that the third
respondent’s dismissal was for a fair reason because that finding
has not been challenged by the third respondent.
[3] The appellants are all advocates by profession and
practise as such as members of the Johannesburg Bar. The first
respondent is
the Commission for Conciliation, Mediation and
Arbitration (“
the CCMA
”)
under whose auspices the arbitration proceedings which are the
subject of these proceedings were conducted. The second respondent
is
a commissioner of the CCMA who issued the arbitration award which is
the subject of these proceedings. The third respondent is
a former
employee of the appellants who was party to the dismissal dispute
that resulted in the arbitration award.
[
4
]
The
third respondent was employed as a personal assistant/secretary,
initially by the first and second appellants only but, later,
also by
the third and fourth appellants. Her employment with the first and
second appellants commenced on 1 June 1999. The events
that are
relevant to the commissioner’s finding on procedural fairness
occurred during the last eleven days of July 2000 and during
August
2000. It is common cause among all parties that on the 21
st
July 2000 the third respondent was called to a meeting with the
appellants or at least some of the appellants. The first and second
appellants were definitely present in that meeting. The third
respondent’s version is that in that meeting she was informed that
her contract of employment was being cancelled which she regarded as
dismissal. She testified that this came as a shock to her. She
testified that she pointed out to the appellants who were present
that no pre-dismissal procedure had been followed before she could
be
dismissed. She says that she requested that the meeting be postponed
to the following week when she would respond to what the
appellants
had told her.
[
5
]
On
the appellants’ version it seems that they said one of two things
at that meeting. Either they told her that they intended to
cancel
her contract of employment or they told her that her contract of
employment was being cancelled. I am prepared to assume in
the third
respondent’s favour that the appellants who met her on that day
informed her that her contract of employment was being
cancelled. If
that is what she was told, that means that she was being dismissed.
It is common cause that, after she had been told
either that the
appellants intended to cancel her contract of employment or that it
was being cancelled, her response was to protest
that no proper
procedure had been followed.
[
6
]
It
was the evidence of both the first and second appellants that,
pursuant to the third respondent raising the point that no proper
procedure had been followed, they offered that a proper procedure be
followed. It was also their evidence that they offered that
an
independent party of the third respondent’s choice be appointed to
chair her disciplinary hearing. It is not very clear whether
the
proposal of a third party of the third respondent’s choice chairing
a disciplinary hearing was made on the 21
st
July or the following week. However, it does not seem to me that it
matters when the proposal was made. What matters is the fact
that it
was made and what the third respondent’s response thereto was. The
appellants testified that they chose this route because,
as they were
all lawyers, they did not want to be seen to be taking advantage of
the third respondent. In support of this, they referred
to the fact
that, when a written contract of employment had to be prepared that
would govern the employment relationship between
them and her, they
had given her freedom to come up with a written contract that
contained the terms and conditions of employment
that she desired. To
this end, the first and second appellants had allowed her to consult
whoever she wanted to consult and have
the contract drafted. They
testified that the draft written contract that she came back with to
them at the time is the one that
is part of the record in this
matter. They said that it contained terms and conditions of
employment which she decided upon and they
signed it with hardly any
amendment.
[
7
]
The
first and second appellants’ evidence was that the meeting of the
21
st
July 2000 was
postponed to the following Thursday in order to enable the parties to
discuss the procedural fairness point that the
third respondent had
raised and for her to respond to their proposal of a disciplinary
hearing that would be chaired by an independent
person of her choice.
The third respondent testified that the purpose of the adjournment
was to give her an opportunity to reflect
on what the appellants had
said to her and tell them her reaction at the meeting of the
following week.
[8] It seems to me that it is common cause that either
on the 21
st
July
or at the meeting of the following week the third respondent was
offered by the appellants a disciplinary hearing which the
appellants
proposed would be chaired by an independent person of her choice. It
is also common cause that she did not accept this
offer. The
appellants say that she spurned the offer. She says that she did not
spurn it but simply said that they could do as they
pleased. The
appellants admit that she said that they could do as they pleased. In
my view the effect of the third respondent’s
answer was to reject
the appellants offer because the appellants could not set up a
disciplinary inquiry chaired by an independent
person of the third
respondent’s choice without her consent. Accordingly, her attempts
to say that she did not reject that offer
must be rejected. She
rejected it very decisively.
[9] In her evidence in the arbitration the third
respondent said at some stage:
“
at the meeting of the 27
th
I informed the advocate that they would proceed with whatever they
feel would [be] right for them but as far as I am concerned, this
is
a dismissal because in the previous meeting of the 21
st
July they said that they are cancelling my agreement and they said to
me that (inaudible) or should they give me R8500, 00 as my
notice
period. Then I said to them it is not for me to decide, as far as I
am concerned, I have been dismissed. They would decide
what they want
to do”.
[10] In his evidence the second appellant was asked
whether a disciplinary inquiry was held with regard to the third
respondent’s
absenteeism. This was a reference to the fact that the
third respondent had stayed away from work for a long period without
permission.
The second appellant answered that none had been held. He
was asked why and his answer was: “
We
offered it and she declined it”.
He was
asked to state when she had declined it. He answered: “
The
second meeting, she said that she was not interested and that we can
do whatever we want”.
Counsel for the third
respondent then asked the second appellant: “
So
basically no procedure was followed?”
The
second appellant answered:
“I told you that
I believe that we followed the right procedure”.
[11] When later the second appellant was asked under
cross-examination whether it was actually the third respondent who
had to tell
the appellants what procedure should be followed, he gave
this explanation for their approach to the matter of procedure after
the
third respondent had raised her concern about procedural
fairness:
“
Yes Mr Arbitrator I think you will recall that we
did tell you that because of the fact that we are lawyers, we did not
want to lead
the applicant on legal issue even then, which should
indicate that we were imposing our views on her and it was for that
reason that
we said to her, go and draft a contractual agreement
which you think is best for you and we will be guided by your own
wishes and
she did that. She went [to] seek assistance and she
drafted a document which you find on pages 1 to 8 and signed it,
without amendments
and it was in that tone and of the understanding
that we requested her or offered to choose what she believe was the
right procedure
and discuss that right procedure with us”.
[
12
]
Later
on, the second appellant, still under cross examination, said:
“
Yes, I did indicate and I will repeat it again,
that at the meeting the (third respondent) indicated [to] us that she
is not interested
in accepting our offer and that we must do whatever
we want to do”.
Again later the second
appellant said:
“
All I can say is, she confirmed that she declined
our offer to follow the procedures and that we must do whatever we
want to do.”
When the commissioner asked the second appellant certain
questions of clarification, the second appellant once again explained
thus:
“
Let me say this Mr Commissioner. First we expected
the employee to report to us the reason for her absence and she did
not do that.
Secondly we convened a meeting where we had hoped that
she will explain to us her absence and she did not do that. Next we
agreed
to follow the procedures and hold a meeting, a subsequent
meeting, where those procedures would be put on case by agreement
between
the employer or group of employers and the employee and that,
when the meeting takes place, the employee tells us that she is not
interested in the following [of] those procedures.”
[13] In the subsequent application brought by the
appellants in the Labour Court to review and set aside the
commissioner’s award,
the appellants also dealt with the issue of
procedural fairness and how the commissioner had dealt with that
issue in his arbitration
award. The third respondent also dealt with
that issue in her opposing affidavit in the review application.
[14] It is interesting to note that in paragraph 10.3 of
her answering affidavit in the review application, the third
respondent said
that at the meeting of the 21
st
July 2000:
“I was informed of the aforesaid intention to terminate my
employment that no reason was furnished for same at that stage. I was
informed that it was better to do things this way before they get
ugly”.
In
par 10.4 of the answering affidavit the third respondent went on to
say:
“
I indeed did indicate to the (appellants) present
that proper procedure was not followed and that I should be furnished
with reasons
for the dismissal and that dismissal should be effected
by way of proper procedure, which is required that a disciplinary
hearing
be conducted prior to a dismissal. The appellants indicated
that I was not being dismissed but that my contract was merely being
cancelled.”
In par 10.4 of her answering affidavit the third
respondent said in part:
“
On the 27 July 2000 I initiated a meeting with
(Appellants) which was attended by [First, Second and
Third Appellants] I indicated to the appellants that they should go
ahead as
they deem fit but as far as I am concerned, I was being
dismissed in an unfair manner and their conduct constituted an unfair
dismissal”.
[15] In the evidence led in the arbitration the third
respondent disputed the evidence of the first and second appellants
that she
was offered a disciplinary hearing that would be chaired by
an independent person of her choice. However, in par 14.2.4 of her
answering
affidavit in the review application she made it clear that
such an offer had been made to her by the appellants. There she said:
“[Appellants] offer to have the matter resolved by an independent
person of my choice was merely lip service, as the decision to
terminate my employment contract was already arrived at before the 21
July 2000. I already suspected at that stage that any indulgence
in
this regard by [appellants] was merely an attempt to justify a
dismissal which was in their favour and was premeditated.”
What is interesting is that in the arbitration the third
respondent did not say what she said in the last sentence of the
extract
just quoted nor did she say that their offer was “
merely
lip service
”. This is important because at
that stage she could have been cross-examined on this issue.
The arbitration
[16] The commissioner found that the dismissal was for a
fair reason but was procedurally unfair and ordered the appellants to
pay
her compensation. The commissioner took the view that, when the
third respondent informed the appellants that they should do as they
pleased, they should have proceeded to hold a disciplinary hearing in
accordance with Schedule 8 to the Act, i.e. the Code of Good
Practice: Dismissal. He said that her attitude to the appellants’
offer of a disciplinary inquiry chaired by an independent chairperson
of her choice did not justify their not holding a disciplinary
inquiry.
Proceedings in the Labour Court
[17] With regard to the issue of procedural fairness,
Waglay J adopted exactly the same attitude as the commissioner and
said that
the appellants should have proceeded to hold a disciplinary
inquiry when the third respondent said that they should do as they
pleased.
Waglay J said at some stage in his judgment:
“ The employers evidence demonstrate that the decision to dismiss
was already a fait accompli on the 21
st
July 2000, the adjournment of the meeting was not for employer to
correct or how it was going about to effect dismissal but to
see
what the third respondent comes up with and deal with the issues the
third respondent raises, this would include that the employer
would
have, if the third respondent so required, hold a disciplinary
inquiry. The above is the only logical inference that can be
drawn
from the evidence at the arbitration”.
Waglay J went on to say:
“It is not for the employee to advocate what process the employer
must follow to effect his or her dismissal, the [third] respondent’s
attitude on the 27 July 2000 is therefore understandable and
acceptable. It was for the employer to state that it was proceeding
with a misconduct inquiry and not to assume or presume that the offer
in setting up such a process would be futile”.
As already stated above, Waglay J dismissed the review
application.
The appeal
[18] One of the grounds upon which the appellants
attacked the commissioner’s award was that his finding that the
dismissal was
procedurally unfair was unjustifiable. The appellants
contended that they had offered the third respondent a fair hearing
that would
be chaired by an independent chairperson of her choice and
she had rejected that offer. They contended that in those
circumstances
they could not go ahead with a hearing in which she had
no interest. They submitted that in those circumstances she could not
complain
that there had been no hearing.
[
19]
During
argument in the arbitration the first appellant dealt with, among
others, the issue of procedural fairness in this case. Among
other
things he argued to the commissioner:
“it cannot seriously be argued that the [third respondent’s]
clear message that she would not participate in [the] process, that
the law would require the [other] party to go through the process
merely to comply with form”.
Later he went on:
“
the purpose is that there would be a bona fide
participation in the case re procedural fairness is that
incontestable evidence is
that the [third respondent’s] was not
prepared to be a party to it and we think there are authorities that
would support us to
say in such a (case), it cannot lie in her mouth
to cry out for what she contends to be procedural non –
compliance”.
[20] There can be no doubt on the evidence that the
appellants did offer the third respondent a disciplinary hearing that
would be
chaired by an independent chairperson of her choice. That
means that the appellants were quite prepared to have a situation
where
none of them chaired the disciplinary inquiry. It is not even
that they wanted to appoint someone that they perceived to be
independent
and impartial. They wanted to ensure that there was
complete fairness. Accordingly, they said to the third respondent in
effect:
“Let there be a disciplinary inquiry
that will not be chaired by any one of us. Let it be chaired by an
independent chairperson
and let’s have that chairperson chosen by
you”!
The third respondent’s contention
was that that offer of an opportunity to be heard was not good enough
because it came after the
appellants had made the decision to dismiss
her. It was submitted on her behalf that there were no circumstances
justifying the appellants’
failure to afford her such an
opportunity before they could take the decision. That being the case,
contended the third respondent,
the commissioner and the Court a quo
were correct in reaching the conclusion that they each reached on
procedural fairness.
[21] The third respondent’s contention that the
opportunity to be heard was not good enough because it was offered
after the decision
to dismiss her had been taken requires close
examination. It is not our law that an opportunity to be heard that
is given after the
relevant decision has been taken is never good
enough. Although generally speaking such an opportunity should be
given before the
decision can be taken, there are circumstances where
an opportunity to be heard that is given after the decision has been
taken is
acceptable. Where the opportunity to be heard is given after
the decision has been taken and it is one of those situations where
it is acceptable and the person concerned spurns that offer or does
not make use of it, it cannot lie in such person’s mouth to
say
that he was not given an opportunity to be heard. In such a case an
opportunity to be heard has been given and rejected. The
audi
alteram partem
rule has been complied with in
such a case.
[22] I do not propose to set out a list of situations
where an opportunity to be heard that is given or offered after the
decision
has been taken is acceptable. Probably it is not advisable
to attempt to give an exhaustive list of such situations. However, it
seems to me that, where it can be said that the opportunity to be
heard that is given after the decision has been taken is no less
fair
than the opportunity that should have been given before the decision
could be taken, it ought not to make a difference that
it was offered
after the event. In this regard I have in mind that the basis for the
proposition that the opportunity to be heard
should be before the
decision can be taken is that, once the decision has been taken, it
may be difficult for the decision-maker
to change his mind even when
the representations made to him by or on behalf of the affected
person are such that his decision should
be one favourable to the
affected person. However, where the opportunity to be heard is
offered after the decision has been taken
but the person who will
consider the representations and decide on whether the decision
should be in favour or against the affected
person is a different
person from the one who initially made the decision and is
independent of him or his organisation and can act
impartially and
make a fresh decision on the matter, there is no reason in principle
why an opportunity to be heard given after the
decision had been
taken should not be accepted as satisfying the audi alteram partem
rule. It seems to me that in such a case that
opportunity to be heard
satisfies the audi alteram partem rule because, though given after
the decision, it is as fair as, if not
in fact fairer than, the
opportunity that should have been given before the decision.
[23] If an opportunity to be heard that is offered after
the decision has been taken is that fair, the affected person is not
prejudiced,
and if he, nevertheless, spurns that offer, he ought not
to be allowed to complain. Let me give an example. A foreigner
commences
business in South Africa and employs a number of employees.
Within the first two or three months he is unhappy with the conduct
of
one of the employees. He dismisses him without first affording him
a hearing. He is then told that the dismissal is procedurally
unfair
because in South Africa an employee has a right to be heard before he
can be dismissed. He then says that he did not know
that and offers
that there be a hearing which will be chaired by a person that both
he and the employee can agree upon and that person
will make the
decision whether the employee is guilty of misconduct and, if so,
whether dismissal is an appropriate sanction in that
case. That
opportunity to be heard that that employer will be offering is,
without doubt, either as fair as, or even fairer than,
the
opportunity to be heard that the employee was entitled to be afforded
before the decision was made. Why should such an obviously
fair
opportunity to be heard not be good enough simply because it was
offered after the decision had been taken? I cannot see any
reason
why that should be so.
[24] It is true that, where a person or official has
made a decision and only hears the other party after the decision has
been made,
he may well be inclined not to change the decision that he
has already made. That is why the general rule is that the
opportunity
to be heard should be before the decision can be made.
However, that concern does not arise where another person –
particularly
if he is independent of the first one – hears the
representations of the affected person and makes a fresh decision on
the matter.
[25] It may be argued that in the example I have given,
the fact that the opportunity to be heard is given after the decision
has
been taken is understandable because the employer is a foreigner
and is unfamiliar with the laws of our country. It would be argued
that this is different from a case such as the present one where the
employers are lawyers who are in practice. My answer to this
is:
provided the opportunity to be heard that they offer after the
decision is as fair as, or, even fairer than, the opportunity
to be
heard that she was entitled to before the decision and a fresh
decision can be taken, that is good enough. In my judgement
in such a
case it matters not that the employer may not have had any acceptable
explanation for not giving the opportunity to be
heard before the
decision. Form must not be observed for its own sake. Effect must be
given to substance. Accordingly, I am of the
view that, if a person
was offered such an opportunity to be heard after the decision had
been taken and he spurned such an offer
simply on the basis that it
was made after the decision had been taken and with no regard to how
fair an opportunity to be heard
it was, such a person cannot be heard
to complain.
[26] With regard to the observance of the audi rule
before or after the decision has been taken, Goldstone J had this to
say in
Momoniat v Minister of Law & order
& others; Naidoo & others v Minister of Law and Order and
others 1986(2) SA 265 (W)
at 274 D:
“Failure to observe the audi alteram partem principle before the
decision is taken, as a general rule, will lead to invalidity.”
In this regard it is important to draw attention to the
fact that Goldstone J there said “
as a
general rule”
. He therefore did not say
that the audi rule must always be observed before the decision is
taken failing which the decision would
be invalid. Indeed, soon
thereafter Goldstone J referred with approval to a passage in Sachs v
Minister of Justice
1934 AD 9
at 22 which was approved on appeal (see
1934 AD at 38) where Tindall J inter alia said:
“But the fact that the persons to whom the decision is entrusted
has (sic) in the first instance acted ex parte, without affording
the
person affected such opportunity,
does
not necessarily make his order invalid if he thereafter affords such
opportunity”
(underlining supplied).
[27] Baxter:
Administrative Law
,
(1984) suggests at 587-8 that there are two exceptions to the general
rule that “
failure to observe natural
justice before the decision is taken will lead to invalidity
”
The one exception, writes Baxter, is “
(w)here
a statute authorises emergency, ex parte, action…”
Baxter writes that in such a case it might be implicit in the statute
that, unless natural justice is excluded altogether, a hearing
need
only be given after the decision is taken. He said that, if there is
no urgency, the Court will require natural justice to be
observed
beforehand. Baxter writes at 558 that the second exception is where
“
there is a sufficient interval between the
taking of the decision and its implementation to allow for a fair
hearing; the decision
maker retains a sufficiently open mind to allow
himself to be persuaded that he should change his decision; and the
affected individual
has not thereby suffered prejudice.”
Baxter goes on to write at 588:
“These are
concessions to the demands of administrative efficiency, but they are
limited.
A hearing held after the
decision can only be acceptable if, in all the circumstances, it was
sufficiently fair as to have the effect
of ‘curing’ the failure
to hold one before.”
(Underlining
supplied.)
[28] This last sentence in the passage from Baxter is
interesting when regard is had to certain dicta in
Slagment
(Pty)Ltd v Building Construction & Allied Workers Union &
others (1994) 15 ILJ 979(A).
In that case the
employer and the employees could not agree on whether the
disciplinary inquiry should be a joint one or whether
there should be
separate disciplinary inquiries for the different employees. The
employer wanted separate disciplinary inquiries
whereas the employees
wanted a joint or collective disciplinary hearing. In the light of
this disagreement the employer decided to
dismiss the employees
without any hearing.
[29] Subsequently a hearing was held which was chaired
by a Mr Hartzenberg which was referred to as an
“appeal”
hearing. This was a case where according to Counsel for the employees
the disciplinary code applicable to the employees apparently
gave the
employees a contractual right to an appeal after the initial inquiry.
However, writing for the majority, Nicholas AJA said
at 992G that
this was not a case in which “
domestic and
administrative two – tier adjudicatory
systems”
applied. Nicholas AJA went on to
say at 992 H-I:
“There is no reason in
principle why any unfairness at the stage of the dismissal should not
have been cured by a full and fair
hearing on appeal.”
Later, at 994E Nicholas AJA said:
“In my
opinion, the initial procedural unfairness was overtaken by the
Hartzenberg hearing and it had no influence on the course
of that
hearing or its eventual outcome. In my view therefore any prejudice
which resulted from the procedural deficiencies which
attended their
dismissals was cured.”
[30] I have referred to the Slagment decision to
illustrate the point that in that case the Appellate Division held
that the rules
of natural justice had been complied with where there
had been no hearing before the employees were dismissed but there had
been
one albeit in the form of an appeal hearing after they had been
dismissed. The Court found that the appeal hearing had effectively
undone whatever unfairness had been occasioned by the absence of a
hearing before the dismissal. My reference to the Slagment case
should not be construed as in any way an endorsement of the view or
proposition that where a person is entitled to a hearing at first
instance as well as to an appeal or where he is entitled to two
hearings, the holding of a fair appeal hearing when there was a
defective
first hearing or no first hearing at all, or the holding of
one fair hearing instead of two or the holding of a first defective
hearing
and a second fair hearing satisfies the requirements of the
audi alteram partem
principle. I say no more than simply that, where a person is entitled
to an opportunity to be heard before a decision is taken and
he is
not given such an opportunity, in certain circumstances an
opportunity to be heard can be given after the decision and one
of
those circumstances is where the employee is offered a disciplinary
hearing that is as fair, if not fairer, as the hearing that
he or she
was entitled to have been afforded before the decision could be
taken. I also make the point that, where as in this case
the employee
is offered a hearing that would be chaired by a chairperson of the
employee’s choice who would make the relevant decision,
then the
audi alteram partem
rule is complied with and such employee cannot complain about
procedural unfairness if he or she rejected the offer or chose not
to
make use of it.
[31] It is important to make three observations at this
stage in regard to the facts in the Slagment case which may not be
insignificant
in the present case. The first is that there the
decision to dismiss was taken without a hearing, although one had
been offered to
the employees. The second is that the decision to
dismiss had been taken by a Mr Kinnear who was the factory manager in
the factory
in which the employees were based. The third is that the
so-called “
appeal
”
hearing was chaired by Hartzenberg who was the works manager of the
company – and not of the factory where the employees and
Mr Kinnear
were based. A reading of the minority judgment by Smalberger JA in
Slagment’s case does not suggest that in principle
he was of the
view that, where a decision to dismiss was taken without a prior
hearing, procedural fairness could not be achieved
in any
circumstances by a hearing after the decision had been taken. He drew
a distinction at 997 D-F between a situation where the
absence of an
initial hearing is due to the fault of the employee and where it is
due to the fault of the employer. He said that
a later appeal hearing
that is fair can cure the unfairness of a defective first hearing or
the unfairness of the absence of a first
hearing where the defect in
the first hearing or where the absence of the first hearing is due to
the fault of the employee but not
where it is due to the fault of the
employer or the person in authority. It is unfortunate that
Smalberger JA did not give a reason
in his minority judgment why a
defect in a first hearing should be curable when the defect is due to
the fault of the employee and
not when it is due to the fault of the
employer. I do not see why it should make a difference in principle.
[32] In
Turner v Jockey Club of
South Africa 1974(3) SA 633 (A)
it was held
that an appeal hearing held in accordance with the rules of the
respondent club had not cured the deficient hearing of
first instance
that had been afforded the appellant. It may be important to
emphasise that in Turner’s case the right to a hearing
and an
appeal was provided for in the rules of the club. At 655D the Court
had this to say: “
(W)here the decision of an
inquiry board is vitiated by a disregard of the fundamental
principles of justice, the matter cannot be
corrected by a remittal
or by further evidence, or in any other manner short of a hearing de
novo;”.
Through Botha JA the Appellate
Division said at 658 that, where the first hearing had been tainted,
“(w)hat was necessary, as was pointed out by
Megarry, J, in Leary v N. U of Vehicle Builders,
(1970) 2 All E.R.
713
at p.719, was, ‘a venire de novo not the process of appeal,
whereby the person aggrieved may be treated as bearing the burden of
displacing an adverse decision which, for lack of natural justice,
ought never to have been reached.”
[33] While dealing
with the issue of whether the absence of a pre-dismissal hearing or
opportunity to be heard can be cured by a later
hearing or later
opportunity to be heard that comes after the decision has been taken,
it is worth noting what was said by both the
Labour Court, in
Chemical Workers Industrial Union v Johnson &
Johnson (Pty)Ltd
[1997] 9 BLLR 1186
(LC)
at
1198 E-H), and, this Court, in
Johnson &
Johnson (Pty)Ltd v Chemical Workers Industrial Union (1999) 20 ILJ 89
(LAC)
at paras 49-51. The latter decision was
an appeal from the former decision. One of the features of that case
was that the employer
had initially failed to offer female employees
the opportunity to try certain jobs before dismissing them for
operational requirements
but had later offered them that opportunity
and they did not accept it. Both the Labour Court and this Court on
appeal held that
the dismissal of such female employees was not by
reason of such failure on the part of the employer unfair because it
was the employees
who had prevented the employer from remedying the
initial defect when they did not accept the employer’s later offer.
[34] Both in
Cabinet for the
Territory of South West Africa v Chikane
1989 (1) SA 349
(A) at 379
F-G
and in
Administrator
,
Transvaal and others v Traub & others 1989
(4) 8A 731(A)
at 748 G-I and 750 B-F the
Appellate Division (now Supreme Court of Appeal) acknowledged that
there are circumstances where it is
acceptable for the audi alteram
partem rule to be observed after the decision has been taken.
[35] I accept that this is not a case where the
appellants had to act in a hurry and could not, for that reason,
afford the third
respondent an opportunity to be heard before the
decision was taken. However, in my judgement the opportunity to be
heard that the
appellants offered the third respondent after the
decision had been taken was so fair that it did not matter that it
was offered
after the decision had been taken. I say this because the
opportunity to be heard offered to the third respondent after the
decision
was as fair as, if not fairer than, the opportunity to be
heard to which she was entitled before the decision. This is so
because,
if the third respondent had been offered an opportunity to
be heard before the decision could be taken, the appellants would
have
been the ones to hear her and take a decision whether she was
guilty of misconduct and, if so, whether dismissal was appropriate.
However, in terms of the opportunity to be heard that the appellants
offered the third respondent, it was not the appellants but
a third
party of her own choice who would have chaired the hearing and made
the decision whether she was guilty and, if so, whether
dismissal was
the appropriate sanction.
[36] In the last extract quoted from Baxter’s work
above, Baxter wrote that
“(a) hearing held
after the decision can only be acceptable if, in all the
circumstances, it was sufficiently fair as to have the
effect of
‘curing’ the failure to hold one before
”.
If one applied Baxter’s approach as to when an opportunity to be
heard that is offered after the relevant decision has been
taken will
be acceptable, it seems to me that, without any doubt, the
opportunity to be heard that the appellants offered the third
respondent in this case was an acceptable one.
[37] With regard to Slagment’s case, although I do not
wish to express any view on whether or not on the facts of that case
the
majority decision was correct, I do wish to emphasise that the
Court held in that case that the employer’s failure to give the
employees a hearing before the decision to dismiss them could be
taken was cured by the holding of a hearing after the dismissal
before Hartzenberg. If one has regard to the “
appeal
”
hearing that was held to have cured the failure to hold a
disciplinary hearing there and compares it with the hearing which the
appellants offered to the third respondent in this case, there can be
no doubt that the hearing that was offered to the third respondent
was fairer than that given to the employees in Slagment. I say this
because in Slagment the “
appeal
”
hearing was chaired by another manager of the same company whereas in
this case the hearing offered to the third respondent would
have been
chaired by an independent chairperson of the third respondent’s
choice.
[38] Both the Court a quo and the commissioner expressed
the view that the third respondent’s conduct in rejecting the
appellants’
offer of a disciplinary hearing was understandable
because her dismissal was already a
fait
acompli
. I do not agree. It may well be that
the third respondent’s dismissal may have been a foregone
conclusion if the hearing that the
appellants had offered her would
have been chaired by one or more of them and if one or more of them
would have had to make the decision
whether she was guilty and, if
so, whether she should be dismissed. However, it was not part of the
offer that one or more of them
would chair that hearing and make such
decision. Indeed, the appellants’ offer was that the hearing be
chaired by a third party
of the third respondent’s choice.
[39] From the above it can be inferred that it was going
to be such third party as chairperson of the disciplinary hearing who
would
have had the power and the duty to determine whether the third
respondent was guilty of misconduct and, if so, whether dismissal
was
the appropriate sanction. That being the case, it seems clear that
the appellants would have had no power to make such decisions
or that
they would have been bound by the findings and decisions of the
chairman of the inquiry. In a way it seems that what the
appellants
offered the third respondent resembled to a very significant extent a
situation where two parties choose a private arbitrator.
The only
difference was that, if the third respondent was not happy with the
findings and decision of such arbitrator, she would
not have been
confined to the remedy of a review as is normally the case with
private arbitration. There is no doubt that she would
still have been
able to exercise her rights to refer an unfair dismissal dispute to
an appropriate forum in terms of the Act for
conciliation and
thereafter, for arbitration. In other words she was going to have the
best of both worlds. First, her disciplinary
hearing would have been
chaired – not by her employer or employers – but by a third party
of her choice and, yet, second, she
would not have been bound by the
decision of such third party if she did not like it.
[40] How the third respondent could reject such an offer
is, for me, difficult to understand. How the commissioner and the
Court a
quo could say that her rejection of such an offer is
understandable and acceptable is even more difficult for me to
understand. Particularly,
when one of the principles which underlie
the Act and which the Act seeks to promote is that employers and
employees should agree
upon disciplinary codes and procedures as well
as other dispute resolution mechanisms. This was a case where, as I
said earlier,
the appellants, as the third respondent’s employers,
were in effect saying to her: come, let us agree on a disciplinary
hearing
that you will be satisfied will be fair! And she rejected
that approach. For the third respondent to subsequently say that the
appellants
should have proceeded to hold a disciplinary hearing after
she had rejected their offer is, in my judgement, disingenuous in the
extreme because, if they had done so, she would, I have no doubt,
have attacked the fairness of such a hearing on the basis that
they
had made up their minds before the hearing. Of course, such a
hearing would have had to be chaired by one or some or all of
the
appellants because for such a hearing to be chaired by a third party,
they would have needed her consent which, as already stated
above,
she had just withheld. Accordingly, although there is no doubt that
the appellants ought to have given the third respondent
an
opportunity to be heard before they could “
intend”
to cancel her contract of employment or dismiss her, it seems to me
that they cured that defect or sufficiently compensated for their
error when they offered the third respondent the hearing that they
offered her which she rejected. There is absolutely no merit in
the
contention that the appellants should have proceeded to hold a
disciplinary hearing after the third respondent had rejected their
offer.
[41] The commissioner appears to have made an effort to
follow what the Code of Good Practice: Dismissal (i.e. Schedule 8 to
the Act)
requires. That Code does not make any express provision to
the effect that the opportunity to be heard can, in certain
circumstances,
be provided after the decision to dismiss has been
taken. The Code is a guideline and cannot provide for all situations.
Although
the Code does not make any express provision for an
opportunity to be heard after the relevant decision has been taken,
it is our
law that there are circumstances where the opportunity to
be heard can be afforded after the decision has been taken. In my
judgement
the opportunity to be heard that was offered to the third
respondent was one that complied with the
audi
alteram
partem
rule.
[42] In the third respondent’s heads of argument there
was also a submission to the effect that it was not open to the
appellants
to argue that they had offered the third respondent a
disciplinary hearing to be chaired by a person of her choice because,
so went
the submission, the appellants had failed to put that part of
their case to the third respondent during cross-examination so that
she could respond to it. The difficulty with this contention by the
third respondent is that it was not included in her answering
affidavits. She, like any other party in motion proceedings, has to
stand or fall by her papers. The third respondent must fall on
this
occasion. The appellants made the allegation in paragraphs 14.2.4. of
their founding affidavit that the commissioner erred in
law in
concluding that the dismissal was procedurally unfair. They said that
he erred because the appellants had
“offered
the third respondent an opportunity to suggest the name of a person
of her choice that she would have been comfortable
[with] to preside
over the intended disciplinary hearing
.” In
par 14.5. of the founding affidavits the appellants referred to the
fact that “…
we had afforded the Third
Respondent an opportunity to be heard by a person of her choice.”
[43] In paragraph 14 of the answering affidavit the
third respondent sought to deal with the contents of par 14 of the
appellants’
founding affidavit. There she did not respond to each
subparagraph of paragraph 14 of the founding affidavit. She was
content to
simply say that
“(t)he contents
of these paragraphs are denied in so far as it (sic) is in (sic)
variance with the following
:” Thereafter
followed paragraphs 14.1 to 14.7. When one has regard to the contents
of par 14 of the third respondent’s answering
affidavit, there is
nothing that she says therein which is at variance with paragraphs 14
of the founding affidavit. On the contrary
what she says in par
14.2.4 of her answering affidavit amounts to an admission that the
appellants did make her the offer of a disciplinary
hearing that
would be chaired by a person of her choice. There she states that the
“[
appellants’]
offer to have the matter resolved by a (sic) independent person of my
choice was
merely lip service, as the
decision to terminate my employment already (sic) arrived at before
the meeting of 21 July 2000. I suspected
at that stage that any
indulgence in this regard by [appellants], was merely in an attempt
to justify a dismissal which was unfair
and pre-ordained.”
(Underlining supplied).
[44] The third respondent did not say that the
appellants were not entitled to rely on that allegation because it
had not been put
to her during cross-examination. That is what she
should have said if that was part of her case. In that way the
appellants would
have had an opportunity to show that this had in
fact been put to her during cross-examination. To this end they might
even have
wished to supplement the record if it did not reflect that
part of the cross-examination. In these circumstances the third
respondent’s
contention in this regard falls to be rejected.
[45] In the light of all the above I have no hesitation
in concluding that both the commissioner and the Court a quo
misconstrued
the
audi alteram partem
rule and did not appreciate that in these circumstances that
principle had been complied with even though compliance had occurred
after the decision had been taken. The commissioner’s decision that
the dismissal was procedurally unfair was unjustifiable and
should
have been set aside by the Court a quo. Indeed, the commissioner’s
finding in this regard was a material error of law justifying
that
the award be reviewed and set aside. The Court a quo erred in not
doing so.
[46] In the light of the conclusion that I have reached
above it stands to reason that the appeal must succeed. With regard
to costs
on appeal, Counsel for the appellants submitted that this is
a case in which the appellants would not press for costs.
Accordingly,
I shall make an order to the effect that each party
shall pay its own costs. With regard to costs in the Court a quo
Counsel for
the appellants did not make any specific submissions. I
propose to make a cost order in regard to the proceedings in that
Court but
of course the appellants will be at liberty not to enforce
that order if their attitude in regard to costs on appeal applies to
costs
in the Court a quo as well.
[47] In the premises I make the following order:
The appeal is upheld.
Each party is to pay its own costs in regard to the
appeal.
The order of the Court a quo is set aside and replaced
with the following one:
“
(a) The application for review succeeds and that
part of the arbitration award issued by the second respondent in the
dismissal dispute
between the applicants and the third respondent
which is to the effect that the third respondent’s dismissal was
procedurally unfair
is hereby reviewed and set aside.
(b) That
part of the second respondent’s award in terms of which the
appellants were required to pay the third respondent compensation
is
hereby reviewed and set aside.
(c) The third respondent is ordered to pay the
applicants’ costs.”
___________
Zondo
JP
I
agree.
____________
Davis
AJA
I
agree.
____________
Nkabinde
AJA
Appearances
For the Appellant : Adv V Soni SC with Mr Mokoena
Instructed
by : Nalane Manaka Attorneys
For the 3
rd
Respondent : Mr Branford
Instructed
by : Willem Koekemoer Attorneys
Date
of judgment : 23 March 2006