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[2008] ZALAC 2
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Maepe v Commission for Conciliation, Mediation and Arbitration and Another (JA 48/04) [2008] ZALAC 2; [2008] 8 BLLR 723 (LAC); (2008) 29 ILJ 2189 (LAC) (18 April 2008)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG.
Case No. JA 48/04
In the matter between
EDWIN
MAEPE
Appellant
And
COMMISSION
FOR CONCILIATION,
First Respondent
MEDIATION
AND ARBITRATION
RICHARD
LYSTER N.O
Second Respondent
JUDGMENT
ZONDO
JP
Introduction
[1]
I have had the benefit of reading the judgment prepared by Jappie JA
in this matter. I agree with the
order which he proposes as well as
the reasons he gives for it. However, in this judgment I wish to
expand on certain matters and,
possibly, add to the reasons relied
upon by Jappie JA.
Basic facts and
background
[2]
The facts of this case and the evidence upon which it must be decided
have been dealt with adequately
by the commissioner of the CCMA in
his arbitration award and by Jappie JA in his judgment. For that
reason I do not propose to
set the facts out in this judgment nor to
deal with the evidence in any great detail. However, it is necessary
to state some basic
facts. They are that:
(a)
the first respondent is the Commission for Conciliation Mediation and
Arbitration, legal entity
created by sec 112 of the Labour Relations
Act, 1995 (Act 66 of 1995) (“
the Act
”).
(b)
in terms of sec 113 of the Act the first respondent is independent of
the State, any political party,
trade union, employer, employers’
organisation, federation of trade unions or federation of employers’
organisations.
(c)
in terms of sec 114(1) of the Act the first respondent has
jurisdiction in all provinces of the
Republic and in terms of sec
114(3) it has to maintain at least one office in every province.
(d)
in terms of sec 115 of the Act the first respondent has many
functions the most important of which is
the resolution of certain
labour disputes through conciliation and arbitration; indeed, the
bulk of labour disputes which are required
to be referred to
conciliation – other than those that fall under the
jurisdiction of bargaining councils – get referred
to the first
respondent for conciliation;
(e)
to perform its dispute resolution functions, the first respondent
employs commissioners (sec 117(1)
of the Act); in terms of sec
117(2)(a)(i) of the Act some commissioners are employed on a
part-time basis whereas others are employed
on a full-time basis.
(f)
in terms of sec 117(2)(a)(ii) of the Act there are two categories of
commissioners, namely, commissioners
and senior commissioners;
(g)
there is no provision in the Act for the office or position of
convening senior commissioner but it
would seem that, this
notwithstanding, certain senior commissioners are designated by the
first respondent as convening senior
commissioners;
(h)
in terms of sec 118(4) of the Act, the director of the first
respondent, appointed in terms of sec 118(1)
of the Act,
automatically holds the office of senior commissioner.
(i)
it would seem that those senior commissioners whom the first
respondent has designated as convening
senior commissioners are in
charge of groups of commissioners; I don’t know whether always,
but it seems that, at least in
some cases, convening senior
commissioners are effectively provincial leaders of the first
respondent in the provinces in which
they operate and that they are
not simply leaders of commissioners but are also senior managers
responsible for all the staff of
the first respondent in those
provinces.
(j)
the appellant was employed by the first respondent as a “
convening
senior commissioner
” in the Eastern Cape Province and, as
such, was the most senior official of the first respondent in that
province.
(k)
part of the duties of a commissioner is to sit as an arbitrator in
arbitrations conducted under the
Act, administer the prescribed oath
to witnesses who are about to give evidence in an arbitration in
which the commissioner is
the arbitrator, hear evidence and argument,
weigh up evidence led at arbitrations, make, where necessary,
credibility findings
against or in favour of witnesses, make findings
of fact and make value judgments about the fairness of dismissals,
issue arbitration
awards and make orders for reinstatement or
re-employment or for the payment of compensation; this is not
intended as an exhaustive
list of the functions of commissioners.
(l)
following upon a disciplinary inquiry, the appellant was found guilty
of, and dismissed for,
(i)
sexual harassment, and,
(ii)
improper or disgraceful conduct.
In
respect of the charge of sexual harassment, the allegation was that
during or about October 2000 the appellant had “
sexually
harassed receptionist V. Nunwana in that you
-
(a)
made unwelcome comments that you loved her and/or that you wanted
to kiss her and or you wanted to keep her photograph to put on
your
chest when you sleep at night.
(b)
made unwelcome gestures of kisses and love towards her.”
In respect of the second
charge, namely, that of “
improper or disgraceful conduct”,
it seems that the charge against the appellant was that on the
13th November 2000 “
you conducted yourself in an
improper and/or disgraceful manner unbecoming of a convening senior
commissioner, in that you undermined
the authority and integrity of
the registrar, T. Fikizolo, by telling the said Nunwana that;
(a)
you had not complained to Fikizolo about Nunwana in the manner in
which [Ms Nunwana] was reported … to Fikizolo.
(b)
Fikizolo is a liar;
(c)
She should not disclose to Fikizolo your visit to her and the nature
of your conversation with
her.”
(m)
in his disciplinary inquiry the appellant put up a false version of
the events in respect of the allegations
of misconduct levelled
against him in the disciplinary inquiry;
(n)
the appellant’s version of events was rejected by the chairman
of the disciplinary inquiry and
he was found guilty of both charges.
In respect of the sexual harassment charge the sanction of dismissal
was imposed. In respect
of the second charge a final written warning
was imposed.
(o)
in a subsequent arbitration conducted under the auspices of the first
respondent under the Act in respect
of a dispute about the fairness
or otherwise of his dismissal, the appellant, under oath, also gave
false evidence about the events
for which he had been dismissed and
the second respondent herein, being the commissioner who was the
arbitrator in that case, rejected
his version in such terms that,
although he did not say so in so many words in his award, it is clear
that he could not but have
regarded the appellant as having been
dishonest in giving the evidence that he gave; indeed, a reading of
the record reveals that,
if the version that the appellant put up in
the arbitration was not true, the appellant must have deliberately
given false evidence;
it is not a case in which it could be said that
the appellant could have been genuinely mistaken about what had
happened between
himself and Ms Nunwana.
(p)
despite his finding that the appellant had given false evidence under
oath in the arbitration, the commissioner,
after finding that
dismissal was unfair, ordered the first respondent to reinstate him
but to give him a final written warning
on condition that, if the
appellant was found guilty of similar misconduct within a period of
12 months, he would be dismissed.
(q)
the first respondent subsequently brought a review application in the
Labour Court to have the commissioner’s
arbitration award
reviewed and set aside on the basis that, when he was considering
whether the dismissal of the appellant had
been fair or not or, if he
found that it was unfair, when he considered what relief, if any,
should be granted to the appellant,
he had failed to take into
account the fact that the appellant had given false evidence both in
his disciplinary inquiry and in
the arbitration proceedings and that
this constituted a gross irregularity; in this regard the first
respondent drew attention
to the position in which the appellant had
been employed by the first respondent and the special position of the
first respondent
as a dispute resolution institution.
(r)
the Labour Court granted the review application, set the award aside,
and declared that the appellant’s
dismissal had been fair.
(s)
the appellant applied to the Labour Court for leave to appeal but the
application was refused;
he then petitioned this Court for leave to
appeal. This Court granted him leave to appeal. Hence, this appeal.
Consideration of
certain aspects of the appeal
[3]
The main ground of review upon which the first respondent relied in
support of its application for the
review and setting aside of the
commissioner’s award was contained in par 6.1 of the first
respondent’s founding affidavit.
That was that, although the
commissioner had found that the appellant had given false evidence
under oath in the arbitration proceedings,
he had failed to take that
fact into account in determining either the fairness of the dismissal
or in determining whether or not
the appellant should be granted any
relief and that this constituted a gross irregularity justifying the
reviewing and setting
aside of either the entire award or at least
the reinstatement order in the award. The appellant’s response
to this, as given
in his answering affidavit, was that the finding
that he had given false evidence was not relevant to a determination
of whether
the misconduct with which he had been charged was serious
or not. That response deals only with part of the point. That is the
point about the fairness of the dismissal. It does not deal with the
point that the fact that he was found to have given false evidence
under oath is relevant to the issue of relief and that the
commissioner ought to have taken it into account in deciding what
relief,
if any, the appellant should have been granted and that his
failure to do so constituted a gross irregularity.
[4]
The appellant has added another answer in the alternative to par 6.1
of the first respondent’s
founding affidavit. His answer in the
alternative was that he disputed the contents of par 6.1. Disputing
the contents of par 6.1
means that the appellant was contending that
the commissioner did take into account the fact that he had given
false evidence.
The appellant specifically said that this was the
case even though the commissioner did not in his award say expressly
that he
had taken this fact into account. The appellant stated that
it was improbable that the commissioner would have made such a
finding
“
and then remove it from his later deliberations
(sic
).” This statement is based on the assumption that the
commissioner regarded the fact that the appellant had given false
evidence
as relevant to the question of what relief, if any, the
appellant had to be granted. If he regarded it as irrelevant to that
issue,
he would not have taken it into account. If he regarded it as
relevant, he may or may not have taken it into account. He did not
expressly indicate that he took it into account nor did he indicate
whether he considered it relevant to the determination of relief.
[5]
The appellant did not in his affidavit challenge the finding made by
the commissioner that he had given
false evidence. His Counsel
submitted that, although the commissioner did not state in terms that
the appellant had been a dishonest
witness, “
it can hardly
be contended that the commissioner proceeded to assess the matter as
if Maepe had been entirely honest.”
Counsel for the
appellant argued the matter on the basis of an acceptance of the
conclusion that the appellant had given false
evidence under oath.
Although the first respondent’s case in the review application
in the Labour Court and at the hearing
before this Court was based on
the appellant having given false evidence under oath both in the
disciplinary inquiry and in the
arbitration, in the view I take of
the matter, I propose to base this judgment only on the appellant
having given false evidence
under oath in the arbitration.
[6]
I have pointed out above that the first respondent contended first
and foremost that the fact that the
appellant had given false
evidence under oath was relevant to the question whether or not his
dismissal was fair and that the commissioner’s
failure to take
it into account in determining the fairness or otherwise of the
dismissal constituted a gross irregularity. I am
unable to uphold
this contention. The commissioner’s failure in this regard
could not constitute a gross irregularity because
the appellant’s
conduct in giving false evidence under oath was not relevant to
whether his dismissal was fair. It was only
relevant to the issue of
relief. The order that was made by the Labour Court suggests that
that Court took the view that the appellant’s
conduct in giving
false evidence under oath was relevant to the question whether the
dismissal was fair and yet in the body of
its judgment that Court did
express agreement with the submission that that factor was only
relevant to the issue of relief. As
already stated, this factor is
only relevant to the issue of relief.
[7]
With regard to the question whether or not the commissioner
failed to take into account the fact
that the appellant had given
false evidence when he considered the issue of relief, Counsel for
the appellant submitted that simply
because the commissioner did not
specifically refer to this fact in his award when considering relief
and whether to order reinstatement
does not necessarily mean that he
did not take it into account. In support of this submission Counsel
for the appellant referred
to Conradie JA’s judgment in
County
Fair Foods (Pty) Ltd v CCMA & others (1999) 20 ILJ 1701 (LAC) at
1717 C-E
where it was, inter alia, said:
“
Awards
are expected to be brief. It seems to me to be destructive of the
whole concept of CCMA arbitrations over individual dismissals
that a
commissioner should be held not to have applied his mind to a
particular fact because it is not explicitly dealt with in
his
award
.”
[8]
I agree, at a general level, with what Conradie JA said in this
passage. Indeed, I have probably said
the same thing myself in some
or other judgment in the past. Although a commissioner is required to
give brief reasons for his
or her award in a dismissal dispute, he or
she can be expected to include in his or her brief reasons those
matters or factors
which he or she took into account which are of
great significance to or which are critical to one or other of the
issues he or
she is called upon to decide. While it is reasonable to
expect a commissioner to leave out of his reasons for the award
matters
or factors that are of marginal significance or relevance to
the issues at hand, his or her omission in his or her reasons of a
matter of great significance or relevance to one or more of such
issues can give rise to an inference that he or she did not take
such
matter or factor into account. In the present matter the appellant’s
conduct in giving false evidence under oath was
so critical to the
issue of relief that, in my view, the only explanation for the
commissioner ‘s failure to mention it in
his reasons as one of
the factors that he took into account is that he did not take it into
account. If the commissioner had considered
such a critical factor,
he definitely would have mentioned this in his award. In my view the
fact that the commissioner did not
mention this very critical factor
in his award justifies the drawing of the inference that he did not
take it into account. Furthermore,
his award is very comprehensive
and cannot be said to have been intended to be brief. Accordingly,
the matter must be decided on
the basis that the commissioner did not
take this fact into account in considering what relief, if any,
should be granted to the
appellant. In the light of the conclusion I
have reached above that the commissioner did not take into account
the fact that the
appellant had given false evidence under oath in
the arbitration proceedings in dealing with the matter, the next
question to consider
is whether or not the commissioner’s
failure to take this fact into account constituted a gross
irregularity.
[9]
In its judgment the Labour Court did not expressly make any finding
that the commissioner had committed
a gross irregularity in any way
in failing to take into account the appellant’s conduct in
giving false evidence under oath.
Nor did it state what ground of
review it found to have been established in the matter. It indicated
in its judgment that the fact
that it was not manifest from the award
whether or not the commissioner had applied his mind to the fact that
the appellant had
given false evidence under oath in the arbitration
did not itself “
render the award reviewable
”.
[10]
The first respondent contended that the commissioner’s failure
to take the appellant’s conduct of giving
false evidence into
account constituted a gross irregularity. I have said above that the
appellant’s answer to this in the
answering affidavit was that
his giving false evidence under oath was irrelevant. However, before
us his Counsel did not persist
with this contention in so far as
relief is concerned. Counsel for the appellant disputed the first
respondent’s contention
that the commissioner’s aforesaid
omission constituted a gross irregularity justifying the setting
aside of the order of
reinstatement granted by the commissioner. In
support of his contention in this regard, Counsel for the appellant
pointed out that
the first respondent did not as part of its argument
invite the commissioner to take the appellant’s conduct in
giving false
evidence under oath into account in determining what
relief, if any, should be granted to the appellant if he was found to
have
given false evidence under oath and if his dismissal was found
to have been unfair. The argument advanced by the appellant’s
Counsel was that the commissioner’s failure to take the fact of
the giving of false evidence under oath into account could
not
constitute a gross irregularity because in effect it was not raised
in the arbitration and the commissioner could not be criticised
for
not doing what he was never asked to do.
[11]
The answer to this argument is that where the law is that a
commissioner must take into account a certain factor
in deciding a
certain question, he is obliged to take that factor into account even
if none of the parties asks him to take it
into account. When he is
obliged to take it into account, it is no defence to say that he was
not asked to take it into account.
If the factor was a critical one
and he did not take it into account, he may well have committed a
gross irregularity justifying
the reviewing and setting aside of his
award. Accordingly, the commissioner’s omission under
discussion is capable of constituting
a gross irregularity even if
the first respondent did not ask the commissioner to take into
account the appellant’s conduct
in giving false evidence under
oath. Accordingly, I am unable to uphold the submission advanced by
Counsel for the appellant in
this regard.
[12]
Another argument advanced by Counsel for the appellant was that the
commissioner’s omission could not constitute
a gross
irregularity because the commissioner was not entitled to take into
account the appellant’s conduct in giving false
evidence
because the first respondent had failed to put it to the appellant
during cross-examination that the fact that he had
given false
evidence under oath or was giving false evidence under oath
disqualified him from being granted reinstatement or any
relief at
all if the commissioner found that his dismissal was unfair. It is
common cause that the first respondent did not put
this to the
appellant when the latter was under cross-examination. I consider
Counsel’s contention in this regard below.
[13]
In considering Counsel’s submission on the issue at hand, it is
important to have regard to the provisions
of sec 193(1) and (2) of
the Act in so far as they relate to reinstatement and the
powers of the CCMA (in arbitrations) and
the Labour Court (in
adjudications). Secs 193(1) and (2) read as follows:
“
(1)
If the Labour Court or an arbitrator appointed in terms of
this Act finds that a dismissal is unfair, the Court or the
arbitrator
may-
(a)
order the employer to re-instate the employee from any date not
earlier than the date of dismissal;
(b)
order the employer to re-employ the employee, either in the work in
which the employee wad employed
before the dismissal or in other
reasonably suitable work on any terms and from any date not earlier
than the date of dismissal;
or
(c)
order the employer to pay compensation to the employee.
(2)
The Labour Court or the arbitrator must require the employer to
re-employ the employee unless –
(a)
the employee does not wish to be re-instated or re-employed;
(b)
the circumstances surrounding the dismissal are such that a continued
employment relationship would
be intolerable;
(c)
it is not reasonably practicable for the employer to re-instate or
re-employ the employee; or
(d)
the dismissal is unfair only because the employer did not follow a
fair procedure”
Sec
193(2) of the Act obliges - it uses the word “
must
”
– the Labour Court or an arbitrator to order the employer to
reinstate or re-employ an employee whose dismissal it
or he has found
to be unfair for lack of a fair reason or whose dismissal it or he
has found to be automatically unfair unless
one or more of the
situations set out in sec 193(2)(a) – (d) applies.
[14]
The situation envisaged in par (a) is where the employee does not
wish to be reinstated or re-employed and it does
not apply in this
case. The situation envisaged in par (b) is where “
the
circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable
.” It is
possible that in so far as the giving of false evidence under oath
may have occurred in the disciplinary inquiry
before the dismissal,
it could be said that it is one of the circumstances surrounding the
dismissal, particularly where it was
one of the factors that were
taken into account in making the decision to dismiss. However, it
does not appear to me that the same
can be said of a situation where
the giving of false evidence only occurs in the arbitration or at the
trial subsequent to the
dismissal. Paragraph (c) envisages a
situation where “
it is not reasonably practicable for the
employer to reinstate or re-employ the employee.
” Paragraph
(d) is a situation where “
the dismissal is unfair only
because the employer did not follow a fair procedure
.”
Paragraph (d) does not apply in this case.
[15]
The effect of sec 193(1) and (2) is that in those cases in which the
arbitrator or the Labour Court has found the
dismissal to be either
automatically unfair or unfair for lack of a fair reason and none of
the situations contained in sec 193(2)(a)
– (c) is present, the
arbitrator or the Labour Court has no discretion to order the
employer to reinstate the employee but
is obliged to do so. I am here
not referring to a case where the Court or arbitrator must decide
whether to grant the relief of
reinstatement or that of
re-employment. I am referring to a situation where the issue is
whether to order the employer to reinstate
the employee or to order
the employer to pay compensation to the employee. In those cases
where the Court or the arbitrator has
found that the dismissal is
automatically unfair or is unfair for lack of a fair reason and one
or more of the situations set out
in sec 193 (2)(a) – (c) is
present, the Labour Court or the arbitrator has no power to order the
employer to reinstate the
employee. The same applies where the
dismissal is unfair only because the employer did not follow a fair
procedure.
[16]
What I have just said in the preceding paragraph means that, if a
case falls under one or other of the situations
listed in sec 193
(2)(a) – (d), it is not competent for the Labour Court or an
arbitrator to order reinstatement or re-employment.
This is because
sec 193(2) makes provision as to when reinstatement or re-employment
must
be ordered and when it
must not
be ordered. In
effect it says that reinstatement or re-employment must be ordered in
all cases except those listed in sec 193(2)(a)-(d).
This is mainly
because of the use of the words “
must
require
the employer to reinstate or re-employ the employee …
.”
which appear at the beginning of sec 193(2) of the Act. The Act uses
the word “
must
” in many areas and it is clear from
an analysis of most parts where “
must
” is used
that it is used to impose an obligation. In the cases which fall
under sec 193(2)(a) – (d) the Labour Court
or arbitrator may
order relief other than reinstatement or re-employment such as the
payment of compensation to the employee as
envisaged in sec 193(1)(c)
of the Act. I now return to the submission advanced by Counsel for
the appellant the commissioner’s
failure to take into account
the appellant’s conduct in giving false evidence under oath
could not constitute a gross irregularity
because the
first respondent had failed to put it to the appellant during
cross-examination that the fact that he had
given false evidence
under oath disqualified him from being granted an order of
reinstatement so that he could deal with that proposition.
[17]
This submission must be considered against the background of the
effect of sec 193(2) on reinstatement. That effect
is that, if, as a
matter of fact, the evidence that was placed before the arbitrator
was such that it would not be “
reasonably practicable for
the employer to reinstate
” the appellant as envisaged in
sec 193(2)(c), then an order of reinstatement would have been
incompetent and the first respondent’s
failure to put that to
the appellant under cross-examination would not and could not have
rendered it competent for the arbitrator
to order reinstatement where
it was otherwise incompetent for him to make such an order. The
arbitrator could not suddenly be competent
to make a reinstatement
order in a sec 193 (2)(c) situation just because one party failed to
put that to the other party under
cross-examination. In those
circumstances it seems to me that, while the proposition that Counsel
for the appellant advanced with
regard to a cross-examiner’s
obligation to put certain matters to a witness may on the face of it
seem good, it cannot be
accepted in the context of this case because
this is about what the arbitrator or the Court was competent or not
competent to do.
[18]
Let me illustrate the point made above by way of an example. If the
evidence before an arbitrator or the Labour
Court in an unfair
dismissal dispute between A, and B where A who had been employed by B
as a driver, established that his driver’s
licence was
withdrawn after his dismissal with the result that he could no longer
drive lawfully, it would definitely be “
reasonably
impracticable
” within the meaning of that phrase in sec
193(2)(c) for the employer to reinstate such employee because in such
a case the
employer would not be able to require the employee to
perform his duties without requiring the employee to commit a
criminal offence.
If in such a case the employer did not put this to
the employee under cross-examination would not change the fact that
it would
be reasonably impracticable for the employer to reinstate
such employee. It could not be argued in such a case that, because
the
employer did not put it to the employee under cross-examination
that, as he had lost his driver’s licence, he could no longer
be reinstated, the Court could order the employer to reinstate him in
his position as a driver.
[19]
In my view, the same principle applies to this case. The appellant
gave false evidence under oath. Reinstatement
was going to mean that
he was reinstated to a position in which he had to expect others to
respect an oath when he himself had
been found to have shown no
respect for the same oath. In my view, it was going to be reasonably
impracticable for the first respondent
to reinstate the appellant to
such a position. On what basis could he expect parties and witnesses
giving evidence before him to
show respect for the oath they would
take before giving evidence when he had shown no respect for such
oath himself? In my view
that state of affairs would be such that the
appellant could not perform his duties effectively and when an
employee cannot perform
his duties effectively, it seems to me that
it is reasonably impracticable within the meaning of that phrase in
sec 193(2)(c) of
the Act to order the employer to reinstate the
employee. And when it is reasonably impracticable to order the
employer to reinstate
an employee, an order of reinstatement is
incompetent. Once the commissioner had become satisfied, as he
obviously became at some
stage, that the appellant had given false
evidence under oath, he ought to have considered what the effect
thereof, if any, was
in regard to relief in the light of the type of
institution that the first respondent is, the position which the
appellant held
in the first respondent and the appellant’s
functions or duties in the position in which he was employed.
[20]
The fact that the appellant gave false evidence under oath in the
arbitration means that he showed no respect for
the oath to speak the
truth which he took in the arbitration. His breach of that oath and
the implied finding of the commissioner
that he gave false evidence
under oath would have left him without any integrity in the eyes of
the public who know his position
as a convening senior commissioner
in the first respondent. How would he, for example, administer an
oath to a party to a dispute
or to a witness and expect such party or
witness to respect that oath when he himself has been found not to
have respected that
oath? The party to the dispute or the witness to
whom the appellant would be administering the oath may well be aware
that the
appellant was previously found to have given false evidence
under oath in an arbitration. In a particular case his position as a
commissioner may well require him to show his disapproval of the
conduct of a witness who may give false evidence before him under
oath. How would he deal with that situation when he himself has been
found wanting in that regard? If he refrained from dealing
with it,
he could be failing in his duties. If he showed his disapproval, his
disapproval would carry no weight with those who
use the services of
the first respondent.
[21]
The first respondent is a very important statutory institution
specially established to resolve certain labour
disputes in the
country. For it to function effectively, it requires to have
integrity and enjoy the confidence of the users of
its services. That
is workers, trade unions, employers and employers’
organisations. Its contact with those who use its services
is, I have
no doubt, often, through its commissioners who, throughout the length
and breath of this country, conciliate and arbitrate
disputes every
working day. By and large commissioners are the face of the
institution. If commissioners do not have integrity
and do not enjoy
the confidence of society and the users of the first respondent’s
services, the first respondent, as a dispute
resolution institution,
will fail. Everything possible must be done to avoid that
eventuality.
[22]
Without integrity the appellant simply could not carry out his
functions or perform his duties as a convening senior
commissioner or
even as an ordinary commissioner effectively. He could not lead the
rest of the commissioners in the Eastern Cape
Province whom he was
required to lead in his position as a convening senior commissioner
before his dismissal. The integrity of
the first respondent as an
institution would be intolerably compromised. In those circumstances
I am of the view that this is a
case which falls under sec 193(2)(c)
of the Act and that, consequently, it was not competent for the
commissioner to order the
first respondent to reinstate the
appellant. In my view the commissioner’s failure to take into
account the appellant’s
conduct in giving false evidence under
oath in the arbitration when he considered the issue of relief
constituted a gross irregularity
which justified the setting aside of
the order of reinstatement which the commissioner had made.
[23]
I am not unmindful of the submission advanced by Counsel for the
appellant that the first respondent failed to
lead evidence that the
appellant’s conduct in having given false evidence under oath
rendered a continued employment relationship
intolerable and that,
for that reason, the first respondent could not rely on the
intolerability of a continued employment relationship
to argue that
the commissioner committed a gross irregularity in ordering the
appellant’s reinstatement. In the light of
the conclusion I
have reached above that the appellant’s case fell under sec
193(2)(c) of the Act, it is unnecessary to deal
with the appellant’s
Counsel’s contention in this regard. That is because I am
basing my decision on another argument
and not on the intolerability
of a continued employment relationship.
[24]
Counsel for the appellant also urged this Court to adopt the same
approach in this case as it adopted in
Flex-o-thene Plastices
(Pty) Ltd v CWIU
[1999] 2 BLLR 99
(LAC)
at paras 11 and 12. There
this Court, through Froneman DJP, said:
“
The effect of this
approach is that the employees were deprived of reinstatement because
of misconduct for which they were never
charged nor disciplined by
the appellant. The appellant never raised the fact of this misconduct
in its statement of defence. It
led no evidence of any breakdown of
trust, let alone a break down caused by the alleged misconduct at the
disciplinary enquiry.
It was never suggested in cross-examination of
the employees that their misconduct during the inquiry was the cause
of any breakdown
in the employment relationship.
The misconduct at the
disciplinary hearing was thus not responsible for a breakdown in the
employment relationship. The presiding
officer should not have refuse
reinstatement because of it.”
[25]
In my view the Flex-0-theme case is distinguishable from the present
case. In that case the alleged misconduct
with which Froneman DJP was
dealing, if established, would not have meant that it was incompetent
to order reinstatement whereas
in the present case the fact that the
appellant gave false evidence under oath meant that, if he were
reinstated, he would not
have been able to do his job effectively and
that an order for his reinstatement was not competent. I have said
earlier that that
renders it reasonably impracticable for the first
respondent to reinstate him and the order of reinstatement that the
commissioner
made in those circumstances was not competent.
[26]
Counsel for the appellant further submitted that, even if the
commissioner could not or ought not to have ordered
the appellant’s
reinstatement, this did not necessarily mean that the appellant ought
not to have been granted any relief.
He submitted that, if the
appellant was not granted an order of reinstatement, he ought to have
been granted compensation because
his dismissal remained
substantively unfair. In this regard my view is different from that
of the Court a quo and I agree with
Counsel for the appellant. In my
view the appellant deserved to be awarded compensation. His dismissal
was correctly found to have
been substantively unfair even though his
conduct was not appropriate. He had made some sexual advances to the
receptionist which
he should never have made. However, his conduct in
that regard did not constitute sexual harassment because the
receptionist had
no objection to it and, indeed, seems by her conduct
to have encouraged the appellant’s advances until the issue of
her performance
appraisal arose and she found out that the appellant
had said something negative to the Registrar of the first respondent
in the
Eastern Cape about her work performance. If the appellant had
not given false evidence under oath in the arbitration but had been
found to have done the things that the commissioner found him to have
done, I may not have found any acceptable basis to interfere
with the
commissioner’s order reinstating him.
[27]
Before I conclude I wish to point out that the circumstances of this
case are very unusual because of the nature
and function of the first
respondent as an institution, the position that the appellant held in
the first respondent and the duties
or functions that went with that
position. The fact that in this case we have concluded that the
appellant’s conduct in giving
false evidence under oath in the
arbitration rendered it “
reasonably impracticable for the
employer
” to reinstate him does not mean that this will be
the conclusion in each case in which an employee is found to have
given
false evidence under oath in an unfair dismissal matter. Each
case will have to be decided on its own merits. Indeed, in my view
in
many cases which come before the CCMA, bargaining councils and the
Labour Court, that would not often be the result because
it will not
follow in many such cases that it is reasonably impracticable for the
employer to reinstate such employee. I think
cases where the giving
of false evidence under oath will lead to it being reasonably
impracticable for the employer to reinstate
an employee will be
relatively rare.
[28]
In conclusion I am of the view that an amount of compensation equal
to 12 months remuneration calculated at the
appellant’s rate of
pay at the time of his dismissal would be appropriate relief for him.
I accordingly agree with the order
proposed by Jappie JA in his
judgment.
Zondo
JP
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO:
JA48/04
In
the matter between
EDWIN
MAEPE APPELLANT
(Second Respondent in
the Court a quo)
And
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION FIRST RESPONDENT
(Applicant
in the Court a quo)
RICHARD
LYSTER N.O
SECOND RESPONDENT
(First Respondent in
the Court a quo)
JUDGMENT
JAPPIE
JA
[1]
This appeal, with leave of this Court, is against a judgment of
Pillay J sitting in the Labour Court.
The
Court a quo
reviewed and set aside an arbitration award issued by the second
respondent, Richard Lyster, N.O (“the commissioner”)
in
which award it was held that the dismissal of Edwin Maepe, the
appellant, by the first respondent, the Commission for Conciliation
Mediation and Arbitration (“the CCMA”) for misconduct was
too harsh and directed that the appellant be reinstated with
a final
written warning valid for twelve months, with the forfeiture of all
back pay.
Background
[2]
The appellant was employed by the first respondent as a convening
senior commissioner for the Eastern
Cape in February 2003. On
the 10th January 2001 the appellant was charged with sexual
harassment and, in addition, improper
or disgraceful conduct.
The charges arose out of various incidents which occurred during
October and November 2000.
The incidents of sexual harassment
involved Ms Vuyiswa Nunwana (“the Complainant”).
The charge of improper of
disgraceful conduct was in regard to a
conversation that the appellant had had with Ms Nunwana about the
registrar of the CCMA,
in the Eastern Cape, Mr Fikizolo.
[3]
At the time of being charged, the appellant was not suspended and he
continued with his duties as a
convening senior commissioner up until
the time of his dismissal following a disciplinary enquiry under the
chairmanship of a fellow
commissioner, Mr Kenny Mosime. At the
disciplinary enquiry the appellant was found guilty of both charges
of sexual harassment
and of improper or disgraceful conduct, and the
chairman, Mosime, recommended that he be dismissed.
[4]
In April 2001 the first respondent adopted this recommendation and
the appellant was dismissed from
his employment. Although the
appellant was found guilty of both charges, it was only the finding
in relation to the charge of sexual
harassment which carried the
sanction of dismissal. On the second charge of improper or
disgraceful conduct the appellant
received a final written warning.
The appellant disputed the fairness of his dismissal and this dispute
was referred to the
CCMA for conciliation. The conciliation
process failed and the dispute proceeded to arbitration.
The
Arbitration Proceedings
[5]
The arbitration proceedings commenced on the 26th September 2001
before the second respondent,
also a commissioner of the CCMA.
[6]
It was agreed by the parties that the evidence that was tendered at
the disciplinary hearing before
Mr Kenny Mosime would form part of
the record of the arbitration. Nevertheless both the
complainant and the appellant were
called as witnesses as well as Mr
Fikizolo and were subjected to cross-examination before the
commissioner.
Complainant’s
Evidence
[7]
The complainant, Vuyiswa Nunwana, was employed as a receptionist at
the offices of the CCMA in Port
Elizabeth. She commenced
employment in 1996 and fell under the supervision of the registrar,
Mr T. Fikizolo. She testified
that on the 24th October
2002 whilst at home she received a telephone call from the
appellant. She received the call
at approximately 17h24 and it
lasted for 12 minutes and 22 seconds. During her conversation
with the appellant he told her
“
I love you
” and
asked what she was doing. She informed him that she was in the
bath. He repeated his statement that he loved
her and told her
“
I wish I can come
and wash your back
.”
She attempted to divert the conversation and ignored the appellant’s
remarks. She thought to herself
that she “
could solve
it
.” She testified that she had hoped that by
ignoring the appellant he might stop this “
nonsense
”
on his own.
[8]
On the 30th October 2000 the appellant called Ms Nunwana again
on her cellphone. The time
of the call was 18h18, and it lasted
for 6 minutes and 24 seconds. During this call the appellant
once again told her that
he loved her. She testified that she
asked herself what it is that he wanted from her. She again
attempted to change
the discussion by asking the appellant where he
was calling from. After this call, she became worried and upset
and decided
that she was going to inform Mr Xolile Mani, a senior
member of the staff association. After the second call she
informed
Mani and was told to speak to Mr Dyakala as to what the
appellant had said to her on the telephone.
[9]
The next incident occurred at the offices of the CCMA on a date she
could not recall. The appellant
was on his way from the
toilets, which are situated outside the main entrance to the
reception area, where she used to sit.
He approached her desk
and told her that he wanted to confess how he loved her. He
said that he wished that he could come
around the desk to hug and
kiss her. As the switchboard was busy she ignored the appellant and
continued with her duties.
He then left her and went into his
office.
[10]
On another day, the date of which she could not recall, the appellant
arrived at the reception area in the morning
and instead of greeting
her, gesticulated kisses in the air with his lips in her direction.
Again she just ignored him and
continued answering the phone.
[11]
On Friday, the 25 October 2000, it was after working hours when Ms
Nunwana found the appellant and other people
in a lift. Ms Nunwana
was showing photographs of her choir to a friend of hers, Ms Sulette
Bonthyus, when the appellant saw these
and asked whether he could
take a better look at them. The complainant obliged. Since, according
to the appellant, it was awkward
to look at the photographs in the
lift, he asked whether he could take them home to look at them. The
complainant agreed on the
understanding that he would return the
photographs on the next Monday. On that Monday the appellant did not
have the photographs
with him, but returned them on the Tuesday.
When the complainant went to fetch the photographs from the
appellant, the latter
told her “
you know, I wish I could
keep these photos. I use[d] to put them here on my chest at
night before I slept
.” Ms Nunwana stated that,
although she felt upset, she did not show this to the appellant.
[12]
Under cross-examination Ms Nunwana conceded that she had not objected
to the appellant’s advances nor did
she tell him how she felt
about his behaviour. Her only response was that the statements
made by the appellant when
he had phoned her and said that he
loved her and wished that he could wash her back was to change the
subject to something else.
When asked how the appellant would
have known how she felt about his amorous advances, her response was
“
I don’t
know
”. She did not
inform anyone else at work other than Mr Mani and then on the
13th November Mr Dyakala. She
stated that her intention in
speaking to Mr Mani was to get advice from him as she was upset by
what was going on. She further
stated that her understanding of
sexual harassment was exactly what the appellant was doing to her
.
The
Appellant’s Evidence
[13]
Appellant’s response to the five incidents was that he conceded
making the phone calls but denied that he
uttered any words of a
sexual nature. He testified that he had been invited by the
complainant to watch her sing with her choir.
In regard to both
telephone calls to the complainant the appellant admitted having made
them but stated that he made them in order
to compensate for his
earlier failure to attend to watch the choir singing. In regard
to the other three incidents, he denied
that these ever took place
and said that the complainant had fabricated these incidents as well
as the accusation of sexual harassment
by telephone as she was angry
because of what he had said concerning her work performance to the
registrar, Mr Fikizolo.
The
Evidence of Mr Fikizolo
[14]
Mr Fikizolo was the registrar of the CCMA in Port Elizabeth.
Part of his job was to conduct performance appraisals
of employees,
including the complainant. Fikizolo said that he conducted an
appraisal of the complainant on the 8th November
2000 and in his
view the area in which the complainant was not performing well was in
not responding promptly to incoming calls.
During the course of
his appraisal of her, he had mentioned to her that he had asked the
appellant’s view of her ability
and the appellant had said that
he was aware that she sometimes put the receiver on the table and did
not answer the telephone.
He said that the appellant had told
him that he had at times seen a red light flickering indicating an
incoming call that was going
unanswered. When he had
asked the complainant about this, the complainant had responded by
saying that she had placed
the receiver off the cradle because of the
loudness of the ring when it was on the cradle as opposed to when it
was off the cradle.
According to Fikizolo, because of this particular
complaint and other complaints he had received about the
complainant’s
poor response time he had marked her 1 out of 5
in this area of her work. His overall assessment of her work
was to mark
her 3 out of 5. This was as far as Mr Fikizolo’s
evidence went.
[15]
After the appraisal of the complainant’s work performance by Mr
Fikizolo, the appellant telephoned the complainant
at her home.
He said that he wanted to talk to her concerning her appraisal.
The appellant came to the complainant’s
flat and they met in
the parking lot. Thereafter, they drove to the beachfront where
the appellant parked the car. Whilst
they sat in his motor vehicle,
the appellant spoke to the complainant about her performance
appraisal. The complainant informed
him of what Fikizolo had
told her concerning what the appellant had said about her performance
to Fikizolo. The appellant
denied having said this to Fikizolo
and asked the complainant not to mention to Fikizolo that they had a
discussion about her appraisal.
[16]
It was after this incident that the complainant decided to lodge a
grievance against both Mr Fikizolo and the appellant.
Having
lodged her grievance the appellant was charged with misconduct which
led to the disciplinary enquiry against the appellant.
The
Arbitration Award
[17]
In arriving at his award, the commissioner was guided by the
provisions of the Code of Good Practice (on the handling
of Sexual
Harassment) which envisages both an informal and formal procedure for
addressing sexual harassment. The commissioner
further relied
on the decision in
Reddy vs University of Natal
[2007] ZALC 66
;
1998 1 BLLR 20
LAC.
He cited,
inter alia
, the following
passage:-
“
Sexual
harassment as a form of misconduct was considered by the Industrial
Court in J v M Ltd (1989) 10 ILJ 755 (IC). The
court said at
757 I – 758 A: ‘Sexual harassment, depending on the form
it takes, will violate that right to integrity
of body and
personality which belongs to every person and which is protected in
our legal system both criminally and civilly.
An employer
undoubtedly has a duty to ensure that its employees are not subjected
to this form of violation within the workplace.
Victims of
harassment find it embarrassing and humiliating. It creates an
intimidating, hostile and offensive work environment.’
I
may add that in terms of the Constitution, sexual harassment
infringes the right to human dignity contained in section 6, which
provides: - ‘Everyone has inherent dignity and the right to
have their dignity respected and protected’ and the right
to
privacy enshrined in section 14.
It
is obviously not every act of sexual harassment which will lead to
dismissal. Dismissal was, nevertheless, the appropriate
remedy
in this case, where the harassment was of an aggravated kind
.”
[18]
After an analysis of all the facts and evidence placed before him,
the commissioner came to the conclusion that
the appellant’s
conduct did not amount to sexual harassment as defined in the Code of
Good Practice. He stated
his conclusion as follows:-
“
Did
the applicant’s behaviour constitute sexual harassment, as we
understand it? If one is guided solely by the definition
of
sexual harassment in the Code of Good Practise on the handling of
sexual harassment cases, then it was not. Item 3.2 of
the Code
provides that sexual attention becomes sexual harassment if:
“
a)
the behaviour is persisted in
b)
the recipient has made it clear that the behaviour is considered
offensive and/or
c)
the perpetrator should have known that the behaviour is regarded as
unacceptable.”
[19]
In his appraisal of the complainant’s evidence the commissioner
expressed the view:-
“…
complainant
can be said to have encouraged Applicant in his belief that
complainant was enjoying his overtures. There are
various
examples of complainant’s behaviour which are entirely contrary
to what one would expect of a woman who is shocked
by her boss’s
unwelcome sexual advances.”
This
conclusion by the commissioner means that the elements of the
definition of sexual harassment mentioned in (b) and (c) thereof
in
the preceding paragraph were not met and that, therefore, the
appellant’s conduct, unacceptable as it may be for a person
in
his position doing it to someone in the position of the complainant,
did not constitute sexual harassment.
[20]
Having concluded that the appellant was not guilty of sexual
harassment, the commissioner turned his attention
to the conduct of
the appellant. In this regard he came to the following
conclusion:-
“
Be
that as it may, I believe that there is still enough evidence to show
that the applicant did make inappropriate sexual advances
to the
Complainant, which he himself should have known were unacceptable.
(see clause 3.2 of the Code of Good Practice on the handling
of
sexual harassment). It goes without saying that I reject
applicant’s version of the incidents. It seems highly
probable that the applicant did make the comments that complainant
say that he made."
[21]
In the context of the award, the sexual advances to which the
commissioner refers in this passage constitute conduct
which the
appellant ought to have known was inappropriate for a person in his
position. That is to say, the appellant ought not
to have made any
advances to the complainant irrespective of whether he knew his
conduct was acceptable or unacceptable to the
complainant. In
this passage the commissioner is stating that he disbelieved the
appellant when the latter denied that he
had behaved towards the
complainant in the manner testified to by the complainant. The effect
of this is that by implication he
found the appellant to be a
dishonest witness.
[22]
The commissioner then considered what would be an appropriate
sanction. He stated that, if the misconduct
is serious and of
such gravity that it makes a continued employment relationship
intolerable, then dismissal is an appropriate
sanction. He said
that the question was whether in any particular case the misconduct
had made a continued employment
relationship
intolerable. This must be judged objectively and is a judgment
which the arbitrator must make. The commissioner
found that dismissal
was not an appropriate sanction in this case and concluded that the
appellant’s dismissal was substantively
unfair for this reason.
The commissioner took into account the following in concluding that
dismissal was not an appropriate sanction:
“
(a)
there was no evidence led at the arbitration
by witnesses of the first respondent that there was material
damage
to the employment relationship or that the employer regarded a
continued employment relationship intolerable;
(b)
further there was evidence of the applicant’s trouble free five
month service after the matter
had been reported, which indicated
that a continued relationship was possible;
(c)
the commissioner further pointed out that
nothing had been placed before him to warrant a finding that
it was
not reasonably practicable to re-instate the appellant.”
He,
accordingly, made an award reinstating the appellant in the CCMA’s
employ subject to a final written warning on condition
that, if the
appellant was found guilty of any misconduct which amounted to sexual
harassment or disgraceful or improper conduct
within a 12 month
period from the date of the award, he would be dismissed. The
commissioner further held that the appellant
was not entitled to any
arrear salary which might otherwise have been due to him from the
date of his dismissal.
Proceedings
in the Labour Court
[23]
The first respondent brought an application in the Labour Court in
terms of section 145 of the Labour Relations
Act No. 66 of 1995
(“the LRA”) for the review and the setting aside of
the commissioner’s award.
The order which it sought was
in the following terms:-
1.
“Reviewing and setting aside the award of the [Second
Respondent] under case number H02-01, dated 12 December 2001.
2.
2.1
Declaring that the dismissal of the [appellant] was fair, and
accordingly dismissing his unfair dismissal
claim against the [first
respondent];
Or alternatively
2.2 Determining
the dispute in a manner the above Honourable Court considers
appropriate.
3.
Granting further or alternative relief.
4.
Ordering the [appellant] to pay the costs hereof”.
[24]
The grounds upon which the first respondent challenged the
award of the commissioner on review were twofold.
Firstly, it
was that the commissioner had committed a gross irregularity in
failing to apply the
reasonable employer test
in assessing the
sanction of dismissal. With regard to the first respondent’s
second ground of attack, it was argued that,
in determining “
whether
the dismissal was fair, and if not, whether [Maepe] should be
entitled to any relief and whether he should be reinstated,”
the commissioner had committed a gross irregularity in that he had
failed to consider and attribute weight to the fact that the
appellant had given false evidence both in the disciplinary inquiry
and in the arbitration proceedings. The first respondent submitted
that, if the commissioner had done so, he would not have found the
appellant’s dismissal unfair, alternatively, he would
not have
granted the appellant any relief.
[25]
The
Court a quo
dismissed the first ground of attack on the
award. Citing the case of
Toyota South Africa Motors Limited
v Radebe 2000 (21) ILJ 340 (LAC)
the
Court a quo
concluded
that on the decided cases the “
reasonable employer test”
had been rejected and came to the conclusion that the commissioner
did not apply an incorrect test in assessing the fairness of
the
dismissal.
[26]
Dealing with the question whether or not the appellant had given
false evidence at the disciplinary hearing and
before the
commissioner, the
Court a quo
was not prepared to interfere
with either Mosime’s or the commissioner’s rejection of
the appellant’s evidence
and stated that they were better
placed to determine his credibility having observed his demeanour.
However, proceeding on the
premise that the appellant had given false
evidence the
Court a quo
concluded that this in itself could
not render the appellant’s dismissal fair. The
Court a
quo
stated the position as follows:-
“
I
accept for the purpose of this case that the giving of false evidence
should go to determining the appropriate relief. It
cannot
render an invalid reason for dismissal valid.”
[27]
The
Court a quo
then dealt with the factual findings made by
the commissioner which had led him to conclude that dismissal was
inappropriate.
The
Court a
quo
observed that
whether the commissioner “applied his mind to the false
evidence given by [the Appellant], is not manifest from
the award.
This in itself does not render the award reviewable
.”
Nevertheless, the
Court a quo
went on and stated the
following:-
“
In
the circumstances of this case, the dishonesty of the employee
was a highly relevant issue. If
it had
been pertinently considered by the Commissioner, he would have come
to a different conclusion.”
Immediately after saying
this, the Court a quo said:
“
In
the circumstances, I grant an order in terms of paragraph 1,2.1 and 4
of the notice of motion.”
[28]
The effect of this finding by the
Court a quo
is that, if the
commissioner had applied his mind to the fact that the appellant had
given false evidence, the commissioner would
not have granted the
appellant any relief whatsoever or he would have granted him
compensation rather than reinstatement.
The
Court a quo
gave the following as its reasons as to why it regarded the giving of
false evidence under oath as pertinent:-
“
1.
The employee is not just any person employed in industry. He is
a Commissioner, a person
who is bound by the Code of Conduct for
Commissioners which requires him to ‘act with honesty’
and maintain ‘the
good repute of the mediation and arbitration
processes and in particular the office of the CCMA.’
2.
He is entrusted by law to, amongst other things, administer the oath
and encourage
those appearing before him to be honest. He
cannot demand that of others if he himself has scant regard for the
truth.
3.
His dishonesty must impair his integrity and standing as a leader of
the CCMA
in the Eastern Cape. It would be indicative of a lax
morality which, must be discouraged. The fact that he was
greeted
enthusiastically when he arrived at the arbitration does not
necessarily imply that he commands the respect of his subordinate or
peers.
4.
His dishonesty would be a barrier to reconciliation and corrective
action which
is one of the reasons the Commissioner advanced for
reinstating him. The CCMA cannot begin to correct his conduct
if he does
not admit the wrongfulness of it.
5.
Similarly the fact that the CCMA did not have in place a policy on
sexual harassment
or apply the sexual harassment code and counsel the
applicant, ought not to have been weighed against it because
counselling was
not an appropriate process when the employee
persisted in his denial of the misconduct.
6.
Furthermore, as a convening senior commissioner the employee ought to
have been
aware of what conduct is prohibited in terms of the sexual
harassment code. That also should have militated against his
reinstatement.”
[29]
The
Court a quo
granted the first respondent the order sought
in the review application which had the effect of upholding the
appellant’s
dismissal.
[30]
The appellant applied for leave to appeal against the judgment of the
Labour Court. The application was refused.
Thereafter, the appellant
petitioned this Court for leave to appeal which petition was granted.
THE
APPEAL
[31]
Counsel for the appellant argued that the first respondent was not
entitled to insist that the
Court a quo
have regard to the
commissioner’s alleged failure to apply his mind to the fact
that the appellant gave false evidence. He
pointed out that the first
respondent had failed at the outset of the arbitration proceedings to
inform both the appellant and
the commissioner that it intended to
contend that, quite regardless of the sanction to be imposed for
misconduct, the appellant’s
dishonesty and lack of remorse had
the effect that dismissal was either the only appropriate sanction or
that reinstatement was
no longer appropriate. He submitted that, that
being so, the commissioner could not be faulted for having failed to
consider an
issue which had not been raised before him. Counsel
submitted that, having omitted to pertinently raise the issue as
aforesaid,
the first respondent could not now rely upon it as a gross
irregularity within the contemplation of section 145 of the LRA.
[32]
It was further argued on behalf of the appellant that the
Court a
quo
had correctly held that the appellant’s conduct in
giving false testimony under oath was relevant only in relation to
the
determination of what relief the appellant was to be granted.
Counsel for the appellant submitted that the giving
of
false evidence could not convert an otherwise unfair dismissal into a
fair dismissal. That being so, submitted Counsel,
there was no
basis in law for the
Court a quo’s
decision to deprive
the appellant of all relief, which was the effect of the judgment of
the
Court a quo
.
[33]
The next argument was based on sec 193(2)(b) of the LRA . Section
193(2)(b) reads:-
“
(2) The Labour Court or
the arbitrator must require the employer to
reinstate
or re-employ the employee unless;
(b)
the circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable
”
It
was submitted that, if the first respondent wanted to avoid the
reinstatement of the appellant by relying on section 193(2)(b)
of the
LRA it ought to have led evidence to establish that a continued
employment relationship would be intolerable. Counsel submitted
that
the first respondent failed to do this. It was argued that the mere
reliance by an employer on the fact that an employee had
given false
evidence at a disciplinary enquiry or during the course of
arbitration proceedings as a ground to establish that a
continued
employment relationship would be intolerable does not absolve an
employer from the obligation to lead such evidence.
Counsel submitted
that in addition to leading such evidence, the accusation must be
plainly put to the employee so that the latter
can have an
opportunity of defending himself in relation thereto. It was
argued that the first respondent had failed to do
so and that such
failure meant that for the Court to deprive the appellant of
reinstatement on this score alone would be both unjust
and unfair.
[34]
Counsel for the appellant also argued that this Court should follow
the approach adopted in the case of
Flex-o-thene Plastics (Pty)
Limited v CWIU
[1999] 2 BLLR 1999
LAC
. Counsel cited the
following passage which appears at paras [11] and [12]:-
“
The
effect of this approach is that the employees were deprived of
reinstatement because of misconduct for which they were never
charged
nor disciplined by the appellant. The appellant never raised
the fact of this misconduct in its statement of defence.
It led
no evidence of breakdown of trust, let alone a breakdown caused by
the alleged misconduct at the disciplinary enquiry.
It was
never suggested in cross-examination of the employees that their
misconduct during the enquiry was the cause of any breakdown
in the
employment relationship.
The
misconduct at the disciplinary hearing was thus not responsible for a
breakdown in the employment relationship. The presiding
officer
should not have refused reinstatement because of it.”
[35]
In its response to the appellant’s argument, the first
respondent argued that the
Court a quo
was correct in
concluding that “in the circumstances of this case, the
dishonesty of the employee was a highly relevant issue.
If it
had been pertinently considered by the commissioner, he would have
come to a different conclusion.” That seems
to suggest
that the commissioner had omitted to pertinently consider the
dishonesty of the appellant and had thus committed a reviewable
irregularity. Counsel for the first respondent submitted that the
Court a quo
was thus correct in setting aside the
commissioner’s award.
[36]
It was further argued that the appellant’s dishonest denials
and the passion with which he pursued those
denials demonstrated
overwhelmingly:-
“
1.
That the first respondent could not reasonably have had confidence
that the appellant would not
commit further similar offence.
2.
That the first respondent could not reasonably have retained
confidence in the integrity of the appellant in the light of his
dishonesty.
3.
That the first respondent could not reasonably have continued
to entrust to the appellant the and responsibilities of a
convening
senior commissioner to preside over arbitration proceedings
and to lead the first respondent in the Province. The first
respondent
is a Public body. It must carry out functions and
entrusted on it by the Constitution. These functions include the
enforcement
of constitutional rights, including the right to fair
labour practices, statutory rights provided for in the LRA.
4.
That the first respondent could not have continued to have
enjoyed public confidence as an institution if it retains the
appellant
in its employ. Significantly, even in this appeal,
the appellant still fails to grasp the seriousness of his misconduct
and
the fact that he lied under oath. This is a further
indication that he is simply unsuitable to hold the office of a
commissioner
of the CCMA.”
[37]
It was further submitted that the commissioner had failed in his
duties and committed a gross irregularity by failing
to take into
account the following:-
1.
the seniority of the position that was occupied by the
appellant.
2.
the significance of the second respondent as an institution
and its role within the statutory framework for resolving labour
disputes
and
3.
that the appellant’s misconduct was sufficiently serious
in all of the circumstances to warrant an order that deprived him
of
remuneration for a period of some 8 months and which imposed the
final written warning of 12 months on terms that, if he was
found
guilty of any behaviour amounting to sexual harassment or disgraceful
or improper conduct during the 12 month period from
the date of his
award, he would be dismissed.
Discussion
[38]
In terms of section 138 of the LRA, it is for the commissioner to
determine whether a disputed dismissal was fair
and he must do so
fairly and quickly. In
Z. Sidumo and Another v Rustenburg
Platinum Mines Limited and Others
[2007] ZACC 22
;
2008 (2) BCLR 158
t
he
Constitutional Court at paragraph 61 of the judgment stated the
following : -
“
There
is nothing in the constitutional and statutory scheme that suggests
that, in determining the fairness of a dismissal, a commissioner
must
approach the matter from the perspective of the employer. All
the indications are to the contrary. A plain reading of
all the
relevant provisions compels the conclusion that a commissioner is to
determine the dismissal dispute as an impartial adjudicator.”
[39]
Once the Labour Court or an arbitrator has come to the conclusion
that a dismissal is unfair, the Labour Court
or the arbitrator must
now determine what relief or remedy, if any, should be granted to the
employee. The determination of what
relief ought to be awarded to an
employee is governed by the provisions of s 193 of the LRA. Once an
award has been made, the award
may be reviewed under limited grounds
as set out in section 145 of the LRA.
[40]
In addition to what is stated above, in
Z. Sidumo and Another v
Rustenburg Platinum Mines Limited and Others
2008 BCLR 158
(cc) the Constitutional Court concluded that a commissioner
conducting CCMA arbitration is performing an administrative function.
This notwithstanding, the Constitutional Court has rejected the
justifiability of an arbitration award in relation to reasons given
for it as a ground of review of CCMA awards. It held that CCMA awards
can be reviewed on the ground of unreasonableness. It held
that the
test is whether the decision reached by the commissioner is one that
a reasonable decision maker could not have reached.
If it is one that
a reasonable decision maker could have reached, such decision is
reasonable. If it is not a decision that a reasonable
decision maker
could have reached, it is unreasonable and can be set aside on review
on that ground. The Constitutional Court concluded
that applying this
standard would give effect not only to the constitutional right to
fair labour practices but also to the right
to administrative action
which is lawful, reasonable and procedurally fair.
[41]
The
Court a quo
interfered and set aside the commissioner’s
award on the basis that the commissioner had omitted to pertinently
consider
the dishonesty of the appellant when he gave false
testimony. The
Court a quo
had concluded: -
“…
.
the dishonesty of the employee was a highly relevant
issue.
If it had patently considered by the Commissioner, he would have come
to a different conclusion.”
[42]
It was argued on behalf of the first respondent that the commissioner
did not consider the issue of the appellant
having been found to have
given false testimony before him. It was argued on behalf of the
appellant that the commissioner was
not obliged to do so as this
issue had not been raised before him.
[43]
In par 6.1 of its founding affidavit the first respondent (applicant
in the
Court a quo
) stated the following:-
“
6.1
The
commissioner failed to take into consideration, and
consequently failed to attach any weight to the fact that the Second
Respondent
(appellant) gave false evidence, both in the disciplinary
proceedings and in the arbitration, in an attempt to defend himself
against
the charges of misconduct brought against him. The
commissioner should have taken this fact into consideration and
should have
attached weight to it in determining whether the
dismissal was fair, and if not,
whether the Second Respondent
should be entitled to any relief, and whether he should be
re-instated.
The commissioner’s failure to do so
constituted a gross irregularity. Had he taken this fact into
account, he would not have
found the Second Respondent’s
dismissal to be unfair,
alternatively would not have granted
relief to the Second Respondent.”
[44]
In the opposing affidavit, the appellant contented himself with the
following response: -
“
8.1
A finding that I gave false evidence is not relevant a
(sic)
determination of whether the misconduct with which I was actually
charged is serious or not.
Alternatively
8.2
I dispute the contents of this paragraph. The commissioner must have
taken this finding into consideration, even
if he did not expressly
indicate this in his Award. It’s improbable that he would make
such a finding and then remove it
from later deliberations.
8.3
In any event, a finding that I gave false evidence cannot, in
fairness and logic, outweigh all the material consideration
set out
above in paragraph 4. Accordingly it is denied that the commissioner
would have come to a different conclusion.”
[45]
The appellant’s response and the argument advanced do not meet
the point that the appellant’s dishonest
conduct was a relevant
and material consideration in determining what relief he ought to
have been afforded.
[46]
I have set out above arguments which were advanced on the appellant’s
behalf in an attempt to meet the first
respondent’s contention
that the commissioner was obliged to have considered the effect of
the appellant’s conduct
in giving false evidence under oath in
the arbitration, that his failure to do so constituted a gross
irregularity and that he
should not have awarded the appellant any
relief. That is that the first respondent did not lead any evidence
to say that a continued
employment relationship had become
intolerable between the parties, that the first respondent had failed
to put the effect of the
appellant’s conduct in giving false
evidence under oath to the appellant under cross-examination so that
he could have defended
himself and that the first respondent did not
raise the issue before the commissioner to enable him to deal with
it. In a concurring
judgment in this matter Zondo JP deals with these
issues. I agree with his judgment and am of the view that it is
unnecessary for
me to deal with the same issues herein save what I
say below.
[47]
The appellant was employed in a position of trust. He was a
convening senior commissioner for the Eastern
Cape. He was required
to act with honesty and integrity in order to maintain and preserve
the trust and confidence the public must
have in the CCMA as an
institution. He was entrusted by virtue of his position to administer
the oath to parties appearing before
him and he would legitimately
expect those parties to abide by the oath. He cannot demand this of
others if he himself has been
shown not to have any respect for the
oath. That is to say that a person who holds the position of a
commissioner, not to speak
of a convening senior commissioner, must
be a person of integrity in order to be considered a fit and proper
person to hold such
a position. When circumstances are present which
cast serious doubt on the integrity of a person holding a position
such as that
previously held by the appellant, then, in my view, such
a person is not a fit and proper person to be entrusted with such a
position.
[48]
In determining what sanction to impose, it would appear that the
commissioner focused only on the issue whether
a continued employment
relationship between the appellant and the first respondent had
become intolerable and did not consider
whether or not it would be
“reasonably impracticable” within the meaning of that
term as used in sec 193(2)(c) of the
LRA for the first respondent to
reinstate the appellant. This issue is also dealt with in more detail
in the concurring judgment
of Zondo JP in this matter.
[49]
The commissioner had concluded that the appellant had given false
evidence. The commissioner was aware of the position
the appellant
held with the first respondent. Accordingly, the commissioner ought
to have appreciated the importance of the appellant
being a fit and
proper person to occupy the position of a convening senior
commissioner if he was to be reinstated in his
position. The
Court
a quo
was, therefore, correct in concluding that, had the
commissioner applied his mind to the effect on his job of the
appellant’s
conduct in giving false evidence, he would not have
ordered reinstatement. This appears to be supported by what the
commissioner
said in reinstating the appellant, namely: -
“
Let me say
at the outset, that although the Applicant comes away from this
arbitration with his job intact, he can count himself
extremely
fortunate that I am not confirming his dismissal.”
This suggests to me that,
if the commissioner had taken into account the fact that the
appellant had given false evidence under
oath, he would not have
ordered the appellant’s reinstatement.
[50]
I have said above that the Court a quo made an order the effect of
which was to uphold the appellant’s dismissal.
Accordingly, the
Court a quo set the commissioner’s award aside and declared
that the appellant’s dismissal was fair.
It is not clear from
the judgment of the Labour Court why it concluded that the dismissal
was fair. It cannot be that the Court
a quo concluded that the
dismissal was fair because the appellant gave false evidence because
he had not been dismissed for giving
false evidence. The Court a
quo’s conclusion to the effect that the dismissal was fair is
particularly strange because that
court did say that the giving of
false evidence could not render valid an otherwise invalid reason for
dismissal. Indeed, the Court
a quo said that the giving of false
evidence was relevant to relief. However, when the Court a quo was
supposed to consider the
weight to be attached thereto in relation to
relief, it did not do so but simply upheld the dismissal as having
been fair despite
the fact that it expressed no difficulty with the
commissioner’s finding that the dismissal was unfair.
[51]
Despite his dishonesty, the appellant’s dismissal for sexual
harassment remains unfair. Although the appellant’s
conduct was
unacceptable, it seems to me that it is unfair that he should be
denied not only reinstatement but all relief. His
reinstatement as a
convening senior commissioner is impracticable for the reasons stated
earlier and as stated in Zondo JP’s
concurring judgment. In my
view it is just and equitable that he be granted some relief. I
consider it to be just and equitable
that the appellant be awarded
compensation equivalent to 12 months remuneration calculated at the
appellant’s rate of remuneration
at the date of his dismissal.
[52]
With regard to costs it must be borne in mind that, while, on the one
hand, the appellant succeeded in having the
order of the Labour Court
altered, he did not succeed in getting an order of reinstatement
which he wanted. In this regard the
first respondent has successfully
resisted the restoration of the order of reinstatement which the
commissioner had made. However,
it must also be borne in mind that,
while on the one hand, the first respondent sought an order to the
effect that the dismissal
was fair so that the appellant would
receive no relief, it has failed in this regard and the appellant
will be granted compensation
equivalent to 12 months’
remuneration. In these circumstances I am of the view that the
requirements of the law and fairness
dictate that there should be no
order as to costs both in this Court and in the Labour Court.
[53]
In the premises the order that I make is the following:
1.
The appeal succeeds in part and fails in part.
2.
There is to be no order as to costs on appeal.
3.
The order of the Labour Court is set aside and replaced with the
following order:.
“
(a) That part of
the arbitration award issued by the commissioner in this case which
ordered the reinstatement of the second
respondent is hereby reviewed
and set aside.
(b)
The part of the arbitration award referred to in (a) above is
replaced with the following order:-
‘
(i)
the respondent (i.e the CCMA) is ordered to pay
the applicant within 14 calendar days compensation that is
equivalent
to 12 months remuneration calculated at the applicant’s rate of
pay at the time of his dismissal’
(b)
There is to be no order as to costs.”
_______________
Jappie
JA
I agree.
_________________
Zondo JP
I agree.
_________________
Patel JA
On behalf of the
appellant: Mr AT Myburgh
Instructed by
Allardyce &Partners
Parktown
On behalf of the
respondent: Mr T Ngcukitobi
Instructed by
Bowman Gilfillan
Sandton
Date
of Judgment: 18 April 2008