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[2014] ZALAC 16
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CSIR v Matsila and Others (JS15/2013) [2014] ZALAC 16 (27 March 2014)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not
reportable
Case
no: JA15/2013
In the appeal between
CSIR
.......................................................................................................................................
Appellant
and
MATSILA,
NDADULENI AUBREY AND
OTHERS
..............................................
First
Respondent
GERHARD
JANSEN VAN VUUREN
N.O
..........................................................
Second
Respondent
PAUL
POTO
N.O
....................................................................................................
Third
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
.................................................................
Fourth
Respondent
Date
of judgment: 27 March 2014
Date
edited: 20 May 2014
CORAM:
DAVIS JA, NDLOVU JA, SUTHERLAND AJA
JUDGMENT
DAVIS, JA
[1]
This is an appeal against a judgment of
Bhoola J, which was delivered on 14 December 2012, in which the
learned Judge in the Court
a quo
dismissed an application for review of an award which had been made
by 2
nd
and 3
rd
respondents respectively. The facts appear to be fairly common cause,
accordingly, I will deal with them briefly.
[2]
On 8 October 2010, the appellant notified
the 1
st
respondent to attend what was referred to as:
“
A
poor performance hearing.
On 19 October 2010, so that:
“
He could answer to allegations
that he was performing poorly.”
[3] During the period 1 April 2010 to 8 October 2010,
five charges were raised against him, details of which are not
entirely relevant
to the dispute which confronts this court.
[4] The hearing was chaired by Mr B Khumalo, a panellist
of Tokiso Dispute Settlement (Pty) Ltd. Ultimately, though the
employer
did not present oral evidence, Mr Khumalo found the
respondent to be guilty of certain of the charges (charges 1, 2, 4
and 5).
Accordingly, he recommended after a consideration of
mitigating and aggravating circumstances that 1
st
respondent’s services be terminated.
[5] On 2 November 2010, the appellant informed the 1
st
respondent of the termination of his employment. On 10 December 2010,
1
st
respondent referred to an unfair dismissal dispute to
the CCMA in terms of
section 191
of the
Labour Relations Act 66 of
1995
. In terms of this referral, he challenged his dismissal on
both substantive and procedural grounds.
[6] On 27 January 2011, after the conciliation meeting,
a Commissioner of the CCMA stated in the certificate of outcome that
the
dispute had remained unresolved. A notice was then generated by
the CCMA on 10 February 2011 at an arbitration to be scheduled for
09:00 on 14 March 2011.
[7] Significantly, in paragraph 1 of the notice, the
parties are informed that:
“
The
arbitration process will commence punctually at the given time (in
this case 09:00).”
Paragraph 3 of the notice states:
“
Failure
to attend may result... the matter proceeding in the absence of the
non-attending party.”
Paragraph 8 provides a further warning, and parties are
warned that:
“
Parking
may be a problem, therefore make timeous arrangements.”
[8]
It appears that the 1
st
respondent, together with the
attorney, Mr Myambo arrived at the premises of the CCMA at the
appointed hour for the purpose of
the arbitration. The appellant’s
representative and/or its witnesses were not, it is common cause, on
the premises at 09:00
as had been specified in the notice. The
arbitration was allocated to 2
nd
respondent. When the
matter was called for the first time, nobody appeared on behalf of
the appellant.
[9] There is a dispute as to precisely what happened
insofar regarding Ms Ngubane who was to represent the appellant. She
admitted
that she arrived late. In her version (and there are at
least two versions thereof in the record that but I shall pass over
them
because they are not particular relevant) she claims that she
arrived at 09:15. She asked an unidentified person on the CCMA
premises as to the location of the arbitration, but did not obtain a
satisfactory reply. Ultimately, at 09:35 she found the
2
nd
respondent by which time the 2
nd
respondent had delivered
the decision to which I shall refer presently.
[10] Pursuant to these events, two rescission
applications were lodged, the relevant one being on 7 April 2011, in
which the appellants
lodged a rescission application. In the
application for rescission following is stated:
“
The arbitration was conducted
at the CCMA building in Pretoria and I, Nombuyiselo Ngubane, who was
going to represent the respondent
was late for about 15 minutes (
sic
)
and the proceedings were conducted without respondent ‘CSIR’
being present and represented. I immediately brought
the issue to the
attention of the CCMA receptionist and I was told to wait until they
call the case as they normally do.
At about 09:35 I insisted to the receptionist (
sic
)
to see the Commissioner and the receptionist directed me to the
boardroom where the case was held. I approached the
Commissioner
and introduced myself. His response was that:
‘
Sorry, madam, I have heard the
evidence of the applicant, I cannot help you any further, and you
should wait for the award.’”
[11] To the question as to why the rescission should be
granted, the appellant listed a series of procedural issues:
“
The employee was informed of
allegations in a manner that the employee understood. The employee
was given a reasonable time to prepare
and to respond to the
allegations. The employee was given an opportunity to state his case
during the proceedings. The employee
was represented by a legal
person. The employee was informed in writing of the decision
regarding incapacity hearing. The employer
gave clear reasons for
terminating the service of the employee.”
[12] As to the justification on the grounds of
substantive fairness for the application for rescission, only the
following appears:
“
Employer has strong evidence
to prove poor work performance against the applicant (Mr Matsila).”
[13] When the case was heard by this Court, Mr van der
Westhuizen on behalf of the appellant sought to argue that there were
grounds
for reviewing the award of the Arbitrator, which was granted
by default on 26 March 2011, on a range of grounds to which I shall
refer presently. In the absence thereof, he submitted that
there was justification for the application for rescission to
have
been brought against this award on 7 April 2011.
[14] Let me turn to the points of substance. In
the first place, there is an argument developed by the appellant
that, when
the proceedings took place before the 2
nd
respondent on 26 March 2011, no proper application had been brought
in terms of Rule 25 (3) (C) of the CCMA Rules to ensure that
the 1
st
respondent could be represented by his lawyer, Mr Myambo.
Accordingly, the proceedings stood to be set aside because a legal
representative
was representing the appellant in circumstances where
the proper procedures for such representation had not been followed.
[15] It is common cause that Mr Myambo was present at
the hearing. Mr van der Westhuizen goes further and suggests
that it
must follow that Mr Myambo had a role to play in the
proceedings because 2
nd
respondent, in making an award in
favour of the 1
st
respondent ordered the appellant to pay
the 1
st
respondent’s costs.
[16] Mr van Graan, who represented the 1
st
respondent, observed that the award of costs is a fairly standard
practice insofar as CCMA awards are concerned and there is
insufficient
evidence to justify the inference that what was intended
was to compensate the attorney, Mr Myambo, for the work that he had
done
in representing the 1
st
respondent at the hearing.
[17] But there is more powerful evidence in favour of
the 1
st
respondent in this regard. The record contains the
CCMA transcription. The case was conducted by the 2
nd
respondent in an inquisitorial fashion. There is nothing on the
record which suggests that Mr Myambo came on record, made any
contribution to the proceedings, made any representations to the 2
nd
respondent or did anything more than accompany the 1
st
respondent to the hearing. On this alone, there is insufficient
evidence to set aside an award on the argument developed by the
appellant insofar as the improper admission of a legal representative
is concerned.
[18] The second issue concerned the fact that it was
common cause that the appellant’s representative, Ms Ngubane,
had arrived
late for the hearing, on 26 March 2011. Mr Van der
Westhuizen pressed the point that there is a practice that
arbitrators,
conducting arbitrations under the aegis of the CCMA,
wait for 30 minutes before they will make a default award. That is an
award
in which the one side is not present. Mr van Graan
characterised this as an indulgence as opposed to a practice,
submitted further
that to insist on a rigid application of the
30-minute rule would be to erode the discretion of an Arbitrator to
run the hearing
in the manner that he or she deems fit.
[19] But there is a further question because, on the
papers, there can be no doubt that the first communication that took
place
between Ms Ngubane and the 2
nd
respondent was at
09:35. Until then, there had been no communication nor could it
be said that the 2
nd
respondent in any way would have
known that somebody was going to arrive to represent the appellant on
the particular day in question.
[20] Ms Ngubane’s conduct, when she approached the
2
nd
respondent, is described in the rescission application
and in her founding affidavit in the review application. What is
clear is
that she never asked the 2
nd
respondent to reopen
the case. It may have been that, had she asked the 2
nd
respondent to reopen the case when she confronted him at 09:35, and
had presented a formal application in support thereof, a refusal
may
have constituted the kind of irregularity which would have supported
the appellant’s case.
[21] But in the absence of an application, there does
not appear to be any basis on which the 2
nd
respondent was
required to exercise the kind of discretion which has now been
attacked by the appellant. There is thus no merit
in disturbing the
decision that was made by the Court
a quo
.
[22] The third question that arose, turned on the
evidence which the 2
nd
respondent had heard from the 1
st
respondent at the default hearing of 26 March 2011. Mr Van der
Westhuizen submitted that the evidence which was presented before
the
2
nd
respondent was skeletal in nature, sufficiently thin
to justify a conclusion that there was an inadequate evidential basis
to come
to a conclusion that there had been an unfair dismissal.
[23] To that, there are at least two responses. In the
first place, once the issue concerns a default hearing, manifestly
that which
is required by way of oral evidence from a party is much
less than would be the case if the matter was opposed. In ordinary
default
hearings where evidence is required, the evidence is of a
relatively perfunctory nature to establish the major requirements to
ensure that the cause of action is real and can be justified.
[24] In the second place, I am somewhat reluctant to
raise the forensic bar to an excessive height when one considers that
cases
which concern arbitrators in a highly-pressed institution such
as the CCMA. The standard which is required must be one of fairness
and justice. It does not require the precision that maybe required
from proceedings before the High Court.
[25] With those remarks in mind, I turn to examine that
which was led before the 2
nd
respondent. The 2
nd
respondent established that the 1
st
respondent was
employed as a Senior Manager Stakeholder in the Stakeholder Relations
and Communication Department. He established
that the 1
st
respondent had been dismissed with effect from 30 November 2010. He
established evidence to the extent of 1
st
respondent’s
remuneration. He then established that an interview had taken place
and, allegations had been that:
“
I was not performing according
to the expectation.”
[26] He was asked whether he agreed with this
conclusion, and when he said no, he went on to say:
“
After all these allegations
because she put me under immense pressure, trying to frustrate me in
the process (superior supervisor)
and eventually there was a
dismissal hearing.”
He then describes this hearing. He also informed the 2
nd
respondent that he has been given insufficient training. This may not
be a fully-blown forensic inquiry, but it did establish in
the mind
of the 2
nd
respondent that he was dealing with an employee
who alleged that he had been unfairly dismissed, that he had been
found guilty
on four of the five charges which had been brought
against him, that he had not been given counselling or training, that
he had
been put under immense pressure, and that he considered that
the dismissal was completely unfair.
[27] Given the threshold which I have described, it
appears that this was a sufficient basis to allow the default hearing
for a
party such as the second Commissioner to determine that there
was a cause of action and a remedy should follow therefrom. Again,
I
emphasise that these remarks are made within the context of a hearing
where one party does not appear and, has not presented
its case.
[28] In the circumstances, I find that on the
substantive and procedural questions of the review against the award
of the 2
nd
respondent of 26 March 2011, there is
insufficient basis to interfere with the award, and further, that the
ultimate conclusion
arrived at by the Court
a quo
stands to be
upheld.
[29] Turning to the rescission application, I have
already set out the grounds which were put up by the appellant in
support of
the rescission application. I must confess that I find the
conduct of appellant somewhat strange in the situation. Having
already
found itself into trouble by virtue of being late for the
hearing, one would have expected that by the time appellant came
around
to the preparation of the application for rescission, careful
legal advice would have been sought and a comprehensive justification
in support of such an application would be forthcoming. It is true
that under the grounds of procedural fairness, six bullet points
appear, to which I referred above. When it comes to substantive
fairness, simply to say:
“
Employer has strong evidence
to prove poor work performance against the applicant
is
utterly unsatisfactory, this is tantamount to no explanation, no case
being made out in support of why there is good cause for
the case of
the appellant. It is simply unsatisfactory to bring an
application for rescission and to say so little, of so
little moment
in so important a matter. In the result, the application of
rescission albeit that it was dealt with in terms of
its reasons in a
fairly cursory fashion, stands to be upheld.”
[31] For these reasons, the appeal is dismissed and the
order of the Court
a quo
is upheld. I confirm the award of the
2
nd
respondent dated 26 March 2011 save for this caveat.
Given the amount of time that has lapsed from the granting of the
award to
these proceedings, it appears that the 1
st
respondent should provide information regarding remuneration that he
would have earned in the interim period, that is from the
time of the
date of the dismissal until the date of this judgment, so that a
setoff of any remuneration earned against that which
flows to be paid
to the 1
st
respondent pursuant to the award can be made
between the parties.
[32] Further, the costs of this application are to be
paid for by the appellant.
________________
Davis JA
Judge of Appeal
Ndlovu JA & Sutherland AJA
concurred
Appearances:
For the Appellant: G Van Der Westhuizen
Instructed by: MacRobert Inc
For the First Respondent: ESJ Van Graan SC
Instructed by: De Swart Vogel Myambo Attorneys