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[2014] ZALAC 14
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Blue Financial Services Limited v Commision For Conciliation, Mediation And Arbitration and Others (JR2819/09, JA53/11) [2014] ZALAC 14; [2014] 10 BLLR 935 (LAC); (2014) 35 ILJ 2368 (LAC) (15 May 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
REPORTABLE
CASE NO: JA 53/11
LABOUR COURT CASE NO:
JR 2819/09
In the appeal of:
BLUE
FINANCIAL SERVICES
LIMITED
Appellant
(Applicant
in the Court
a
quo
)
and
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION First
Respondent
J TSABADI
N.O Second
Respondent
ANDREW
WILLIAM PATERSON
Third
Respondent
(Respondents
in the Court
a quo
)
Heard:
21 February 2014
Delivered:
16 May 2014
Summary: A REFUSAL BY
A COMMISSIONER TO ALLOW A PARTY TO CALL A WITNESS TO COUNTER THE
UNFAVOURABLE EVIDENCE GIVEN BY ANOTHER WITNESS
CALLED BY THAT PARTY
WAS UNREASONABLE AND CONSTITUTED A MATERIAL IRREGULARITY. IF THE
WITNESS HAD BEEN ALLOWED TO BE CALLED
THE OUTCOME OF THE HEARING MAY
HAVE BEEN DIFFERENT. THE APPEAL AGAINST A LABOUR COURT ORDER
DISMISSING AN APPLICATION TO
REVIEW AND SET ASIDE THE
AWARD WAS UPHELD WITH COSTS.THE AWARD OF THE COMMISSIONER WAS SET
ASIDE AND THE MATTER WAS REFERRED
BACK TO THE CCMA FOR A HEARING
DE
NOVO
BEFORE A DIFFERENT COMMISSIONER.
JUDGMENT
COPPIN AJA
[1]
This is an appeal against a decision of the Labour Court (Steenkamp
J) dismissing, with costs, an application brought by the
appellant to
review an award of the second respondent (“
the
arbitrator
”),
acting under the auspices of the first respondent (“
the
CCMA
”),
in favour of the third respondent (“
Mr
Paterson
”),
who had been dismissed by the appellant for making a racist remark,
by ordering the appellant to pay Mr Paterson the equivalent
of four
months’ salary.
[1]
The
court
a
quo
granted leave to appeal to this Court. Mr Paterson, who is legally
represented, is opposing the appeal.
[2] At the outset of the
appeal hearing, the appellant applied for condonation for its failure
to lodge the appeal within the prescribed
period and sought leave to
prosecute the appeal. The application was not opposed. The parties
addressed the court on the merits.
The explanation proffered by the
appellant in its condonation application was not criticised at all by
Mr Paterson’s representative
and it is reasonable. For reasons
stated in this judgment the appeal is successful.
[3] The following facts
are relatively simple and common cause. Mr Paterson, a white person,
was employed by the appellant as a
Corporate Finance Manager. On 3
March 2009, Mr Paterson engaged in a social conversation with a
colleague, a black person, Mr Kevin
Kachidza (“
Mr Kachidza
”)
in an open plan office in which Mr Kachidza was working with others.
Mr Kachidza was employed as an Investment Relations
Manager. Some of
the appellant’s staff had just returned from a bush safari
where they had engaged in team building. Mr Kachidza
did not attend.
Within earshot of other employees, Mr Paterson enquired from Mr
Kachidza why he did not attend. Mr Kachidza’s
response was, in
essence, that he was not particularly fond of the bush, whereupon Mr
Paterson uttered these words, which formed
the subject of
disciplinary charges and which culminated in Mr Paterson’s
dismissal from his employment with the appellant,
“
I thought
you jungle bunnies liked that sort of thing
”.
[4] Mr Kachidza did not
respond immediately to Mr Paterson’s statement, but later, on
the same day, Mr Kachidza sent an email
to Mr Paterson in which he
relayed his feelings about this statement that was made. The email
reads:
‘
Andrew,
I think there is something which we should talk about when you in the
office. I’ll have you know that it is extremely
offensive to
call anyone a ‘jungle bunny’ under any circumstances.
In the interest of
good relations between colleagues I would strongly advise that you
never use that expression again in polite
company and certainly never
again in front of my corporate affairs team and I.
As long as we have an
understanding on that I don’t think we need to take it any
further on this occasion. I look forward
to discussing it with
you in person.
Kind regards,
Kevin Kachidza.’
[5] Shortly after
receiving that email, Mr Paterson responded by email to Mr Kachidza
in the following terms:
‘
Actually,
the phrase I used was ‘bush cat’ and I am sorry you took
it against the spirit in which it was meant. Clearly
I was being more
familiar than is my place where you and I are concerned and I
apologise unreservedly. I look forward to doing
so in person and I
appreciate you approaching me directly.
Cheers
Andrew.’
[6] Notwithstanding Mr
Paterson’s response, the next day Mr Kachidza forwarded his
email to one Mr Reinders, the Group Corporate
Affairs Executive, and
Mr Van Niekerk, the Chief Executive Officer, together with a message
that he was “
extremely saddened and outraged
” by
what Mr Paterson had said to him and requested an investigation.
[7] Following an
investigation, Mr Paterson was charged with the following counts of
misconduct:
‘
1.
Use of abusive/racist language
in that you addressed a colleague [in] a well-known racist
term.
2.
Behaviour
prejudicial to the maintenance of good order in that your behaviour
toward a fellow-employee [breached] your common law
duty of good
faith to the company.’
[8] In terms of the
applicable disciplinary policy, the use of racist and abusive
language in the workplace, or engaging in behaviour
prejudicial to
the maintenance of good order and in breach of the duty of good faith
owed to the company, carried a sanction of
dismissal.
[9] At the disciplinary
hearing, Mr Paterson admitted using the term “
jungle
bunnies
” in his conversation with Mr Kachidza. He pleaded
guilty to the first charge of misconduct, but denied that his
behaviour
was prejudicial to the maintenance of good order at the
company. He apologised for his use of the objectionable language.
Notwithstanding,
the Chairperson at the disciplinary hearing, Ms
Nolene Petit (Ms Petit), found Mr Paterson guilty on both charges of
misconduct
and Mr Paterson was dismissed from his employment with the
appellant. An internal appeal was unsuccessful whereupon Mr Paterson
referred an unfair dismissal dispute to the Commission for
Conciliation, Mediation and Arbitration (“
CCMA
”).
[10] At the subsequent
arbitration hearing at the CCMA, the commissioner found that Mr
Paterson’s dismissal was procedurally
fair, but substantively
unfair. Relying essentially on the evidence of Mr Kachidza and Mr
Paterson, the commissioner found that
the appellant had dismissed Mr
Paterson for reasons other than those that had formed the subject of
the charges against him and
that the sanction of dismissal was in any
event too harsh given the circumstances. It was the commissioner’s
view that the
dismissal of Mr Paterson was for “
flimsy
”
reasons. Since Mr Paterson did not seek reinstatement, the
commissioner granted Mr Paterson compensation by ordering the
appellant to pay Mr Paterson the equivalent of four months’
salary (i.e. R240 000) by a certain date.
[11] At the arbitration,
Ms Petit, who now presented the case on behalf of the appellant,
called Mr Kachidza as a witness. There,
Mr Kachidza testified,
inter
alia
, that he had referred the incident to Senior Management for
investigation, because Mr Paterson had denied using the term “
jungle
bunnies
” and was not truly remorseful; that he felt abused
and that his conduct in referring the matter was consistent with the
appellant’s
harassment policy. Mr Kachidza testified further
that he had offered not to pursue the complaint against Mr Paterson
(i.e. “
to drop the charges
”) if Mr Paterson
apologised openly. However, when he made this offer he was advised by
Mr Reinders that the third respondent
was, any way, going to be
dismissed because of other things. The charges were not dropped,
according to Mr Kachidza, because it
was seen as a good excuse for
dismissing Mr Paterson.
[12] Under
cross-examination by Mr Paterson, Mr Kachidza, effectively, conceded
that the appellant was retrenching employees under
the guise of
dismissing them so that it did not have to pay them retrenchment
packages. He testified that at the time of the arbitration
he was
also suspended pending a disciplinary hearing into allegations of
misconduct. He denied telling lies or being put under
pressure to lie
in the arbitration proceedings. He further testified,
inter alia
,
in response to a question, in that regard, that he was never informed
that Mr Paterson had approached management in an effort
to have the
issues, relating to the charges, conciliated.
[13] When Ms Petit had to
re-examine Mr Kachidza, she effectively cross-examined him. Having
been the Chairperson of the disciplinary
hearing, who found Mr
Paterson guilty, she tried to discredit Mr Kachidza by putting to him
her recollection of what he had said
or not said at the disciplinary
hearing. She further put to him, in essence, that he had since laid a
grievance against Mr Reinders
and that he had turned “
hostile
”
towards the appellant, because of his own dispute with it. Ms Petit
also put to Mr Kachidza that his own dispute with the
appellant was
“
clouding his judgment
”. Mr Kachidza denied all of
this.
[14] At the end of this
questioning by Ms Petit of Mr Kachidza, she requested permission from
the commissioner to call Mr Reinders
to give his side of the story.
The commissioner enquired of Ms Petit how Mr Reinders’
testimony was going to advance her
case. She replied that fairness
dictated that he be called to give his version of what he had said,
or did not say to Mr Kachidza.
She submitted,
inter alia
, that
she was not aware of the discussion that Mr Kachidza said he had with
Mr Reinders until Mr Paterson’s questioning of
Mr Kachidza. She
also submitted that she had reason to believe that Mr Kachidza was
involved in assisting Mr Paterson in the preparation
of his case. Mr
Kachidza disputed the veracity of her submissions and described them
as “
absurd
” and “
ridiculous
”.
Having heard Mr Paterson on the matter, the commissioner did not
grant permission for Mr Reinders to be called, ruling
that Mr
Reinders’ evidence would take the matter no further, because if
Mr Reinders contradicted Mr Kachidza, it would be
the word of one
against the other.
[15] Mr Paterson
testified at the arbitration hearing,
inter alia
, that he had
approached his own manager and Mr Kachidza’s manager to discuss
the issues in the hope of conciliation. Both
the managers had said to
him that Mr Kachidza was not interested in discussing the possibility
of conciliation with him. According
to Mr Paterson, given the benefit
of hindsight, it was clear to him that the appellant’s
management deliberately avoided
the possibility of conciliation. He
conceded at the arbitration to using the term “
jungle
bunnies
”, but testified that he was now aware of the pain
and humiliation that it caused. He said that he genuinely believed
that
he had used the term “
bush cat
”, but had
since discovered that it was also an objectionable, racist term. He
was not aware that Mr Kachidza’s perception
was that he was
trying to deny using a racist term and that he was optimistic that if
there had been an attempt at conciliation
the matter between him and
Mr Kachidza would have been amicably resolved. Mr Paterson further
disputed the reasonableness of the
sanction of dismissal, given the
circumstances, and testified about the difficulties he had in finding
employment given his profile
and the depressed economic
circumstances. At the time of his incident he was about to get R100
000 in the form of a bonus, but
it was not paid out to him because of
his dismissal. He contended that he was treated unfairly and that his
dismissal was for ulterior
purposes.
[16] The commissioner
accepted Mr Kachidza’s evidence as being true and dismissed
contentions by Ms Petit that Mr Kachidza
had become a hostile
witness. The commissioner found that both Mr Kachidza and Mr Paterson
had approached senior management, albeit
separately and without each
other’s knowledge, to resolve the matter amicably, but their
efforts, were thwarted by senior
management who, instead informed Mr
Paterson that Mr Kachidza did not want anything to do with him. The
arbitrator found, in essence,
that the reason for management’s
conduct in this regard was for ulterior purposes and that Mr
Kachidza’s evidence concerning
what Mr Reinders told him,
namely that Mr Paterson was going to be dismissed for other reasons,
was credible. The commissioner
accordingly found that if management
did in fact want to dismiss Mr Paterson for other reasons they should
have charged him accordingly.
Furthermore, the commissioner accepted
that given the circumstances, in particular Mr Paterson’s
apology and show of remorse,
the sanction of dismissal was “
too
harsh
”. According to the commissioner, it was an isolated
incident and it had not been shown that Mr Paterson had used the
racist
statement before.
[17] The commissioner
accordingly concluded that the third respondent’s dismissal was
substantively unfair and found:
17.1
The
reason for the termination of Mr Paterson’s employment was
unfair, invalid, unreasonable and “
not
based solely
”
on the appellant’s “
commercial
rationale and is simply capricious
”;
17.2
The
reason for the termination of Mr Paterson’s services “
was
not objectively established in a formal disciplinary hearing
”;
17.3
The
dismissal of Mr Paterson “
was
effected without due regard
[for]
the
code of good practice: dismissal which emphasises both procedural and
substantive fairness when affecting dismissal related
to conduct
and/or capacity
”;
17.4
Mr
Paterson’s dismissal “
does
not comply with the provisions of
section 188
of the
Labour Relations
Act 66 of 1995
”.
[18] The commissioner
noted Mr Paterson’s desire not to be reinstated because of the
acrimony prevailing in the workplace
and that even in those
circumstances he had a discretion to order reinstatement. The
commissioner, however, decided to exercise
his discretion in favour
of awarding Mr Paterson compensation equivalent to four months’
salary. Payment was ordered to be
effected by means of a cheque to be
collected by Mr Paterson from the appellant’s premises within
14 days of the service
of the award on the appellant.
[19] The appellant
brought an application to review and set aside the commissioner’s
award in terms of section 145 of the
Labour Relations Act 66 of 1995
(“
the LRA
”). Ms Petit, the deponent to the
founding affidavit, alleged that the commissioner had committed
multiple material errors
and misdirections and that he failed to
“
properly, rationally and justifiably apply his mind to the
facts and/or law
” and that his award “
is not
reasonable
”, and his decisions were not decisions that “
a
reasonable decision-maker would make
”. It was further
contended in the review, on behalf of the appellant, that the
commissioner, in coming to the conclusion
that the appellant
dismissed Mr Paterson for other reasons, i.e. used the disciplinary
hearing and the dismissal as an alternative
for retrenchment, failed
to take into account that Mr Paterson, at the time, had only been
employed by the appellant for five months
and would not have been
entitled to a retrenchment package. It was submitted in that regard
that if it had been the appellant’s
intention to retrench Mr
Paterson, it could in those circumstances simply have retrenched him
and not used dismissal as an alternative.
It was further submitted
that the commissioner did not take cognisance of the fact that Mr
Kachidza had an ulterior motive in “
substantiating
”
Mr Paterson’s version rather than the appellant’s
version. In this regard, Mr Kachidza’s personal dispute
with
the appellant was mentioned. It was further submitted that the
commissioner had erred in not accepting that Mr Kachidza had
turned
into a hostile witness during the arbitration proceedings and that
the commissioner had erred in not allowing the appellant
to call Mr
Reinders.
[20] Further grounds of
review raised against the commissioner’s award were the
following. It was averred that the commissioner
unreasonably accepted
Mr Kachidza’s testimony, namely that he was told by Mr Reinders
that Mr Paterson was going to be dismissed
for other reasons anyway;
that the commissioner erred in multiple ways in his findings
regarding the words that were uttered by
Mr Paterson. In this regard,
it was, in essence, alleged that the commissioner had erred in not
finding that Mr Paterson had not
been honest. It was also averred
that the commissioner had erred in finding in the circumstances that
the dismissal was “
too harsh
”.
[21]
The Labour Court dismissed all of these points and found that the
commissioner’s decision and conclusion were reasonable.
With
regard to the commissioner’s refusal to permit Mr Reinders to
be called, the Labour Court held that it did not find
the
commissioner’s conclusion that Reinders’ evidence would
not take the appellant’s case further “
so
unreasonable as to make the entire award reviewable
”.
Regarding the commissioner’s conclusions, including the
conclusion regarding the harshness of the sanction of dismissal,
the
court
a
quo
held that the “
award
is comprehensive and well-reasoned
.
In
coming to the conclusion that it did, he took into account the
evidence of the complainant, Kachidza. In considering the question
of
sanction, [carefully considered the context and Paterson’s
subsequent conduct]. His conclusion is not so unreasonable
that
no reasonable Commissioner could reach a similar conclusion. It
falls within the bounds of reasonableness. This is not
a case such as
that of Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp
[2]
where the employee said, in relation to black employees, ‘los
die kaffer – laat hom vrek
’.
The
factors that Commissioner Tsabadi took into account clearly
distinguish the facts of the case before him
.”
The Labour Court accordingly dismissed the review with costs.
[22] On appeal, it was
submitted that the Labour Court erred in essence, in finding that the
commissioner’s decisions and
findings were justifiable and/or
reasonable. The same points of review that were argued in that court
were repeated in heads of
argument before this Court and it was
submitted, in essence, that the court erred in not upholding them and
in not reviewing and
setting aside the commissioner’s award.
[23] As regards the
merits, the main submissions of the appellant, in the hearing before
us, was directed, firstly, at the commissioner’s
acceptance of
the evidence of Mr Kachidza in the circumstances and in particular at
the commissioner’s refusal to allow the
appellant to call Mr
Reinders as a witness. It was submitted that in so refusing, the
commissioner committed a gross irregularity
which was reviewable
because it affected the outcome of the arbitration. The commissioner
found,
inter alia
, that the appellant had dismissed Mr
Paterson for other reasons, without the benefit of Mr Reinders’
evidence and that in
deciding on the compensation to be awarded to Mr
Paterson, in
lieu
of reinstatement, the commissioner must have
taken into account the evidence that Mr Paterson had been dismissed
for other reasons.
[24] It was submitted on
behalf of Mr Paterson that the commissioner’s refusal to allow
Mr Reinders to be called, had no material
bearing on the outcome,
because the commissioner had in fact come to his conclusion that the
dismissal was substantively unfair
on two bases. The first being that
Mr Paterson had been dismissed for other reasons, and the second,
that the sanction of dismissal
was too harsh. The argument in this
regard was that the second basis stood independently and was not
linked to the issue of whether
Mr Paterson had been dismissed for
other reasons, which could, in turn, be linked to the evidence which
the appellant intended
Mr Reinders to give.
[25]
It is now trite that an award of a commissioner would not be reviewed
and set aside if it is one which a reasonable commissioner
would have
made.
[3]
In
Herholdt
v Nedbank Ltd,
[4]
the
Supreme Court of Appeal,
per
Cachalia and Wallace JJA, summarised the position regarding the
review of CCMA awards as follows
:
‘A review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in section 145(2)(a)
of
the LRA. For a defect in the conduct of the proceedings to amount to
a gross irregularity as contemplated by section 145(2)(a)(ii),
the
arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result. A result will only
be
unreasonable if it is one that a reasonable arbitrator could not
reach on all the material that was before the arbitrator.
Material errors of fact, as well as the weight and relevance to be
attached to particular facts, are not in and of themselves sufficient
for an award to be set aside, but are only of any consequence if the
effect is to render the outcome unreasonable.
’
[26]
I now return to the facts of this case. It is not entirely clear that
Kachidza had become “
hostile
”
since the hearing. In court proceedings a witness is regarded as
hostile if he is “
not
desirous of telling the truth to the court at the instance of the
party calling him
”.
[5]
The mere fact that the witness gives evidence that is not favourable
to the party calling him does not make him a hostile witness.
The
party who is confronted with the situation where his own witness
gives unfavourable evidence may apply to have that witness
declared
hostile in order to cross-examine him (This is usually done by
putting to that witness a previous inconsistent statement
and then
trying to persuade the court to declare the witness hostile), and/or
call other evidence to contradict the unfavourable
evidence of that
witness.
[6]
[27] What is clear from
an analysis of the proceedings in this case, is that Ms Petit did not
follow trial procedure. When she was
supposed to re-examine Mr
Kachidza she, instead, accused him of becoming hostile and
cross-examined him without first seeking permission
to do so. She
seemingly relied on her own recollection of what the witness said at
the disciplinary hearing to try and impeach
him and did not proceed
to produce a record of those proceedings. So, effectively, while she
alleged inconsistency, she never proved
it. In my view, however, the
question, whether Mr Kachidza should have been declared a hostile
witness, is a “
red-herring
”. What is clear is that
Mr Kachidza gave evidence that was unfavourable to the appellant. The
appellant would have been entitled
to call evidence to contradict the
unfavourable evidence.
[28] The commissioner did
not challenge the appellant’s entitlement to call Mr Reinders
to contradict Mr Kachidza, but questioned
the practicality of calling
Mr Reinders in the circumstances. The commissioner’s reasoning
being that the calling of Mr Reinders
would not advance the case of
the appellant, since it would be the evidence of Mr Reinders against
that of Mr Kachidza. The commissioner
appears to have misconceived
the enquiry, because of the nature of the test which he applied. The
test which he applied was clearly
speculative. The commissioner
merely anticipated that it would be the word of one against the other
(i.e. a kind of “
stalemate
” situation), but failed
to take into account that there may have been a number of other
possible outcomes if Mr Reinders
had been allowed to be called to
counter Mr Kachidza’s unfavourable evidence. An obvious one is
that Mr Reinders may have
been believed on the points in issue, but
not Mr Kachidza. In my view, the commissioner did not approach this
aspect reasonably,
since it was not possible to anticipate the
outcome, without Mr Reinders having been called. I pointed out
earlier that since Mr
Kachidza gave evidence that was unfavourable to
the appellant, it was entitled to call other evidence to contradict
that unfavourable
evidence. In the circumstances, the entitlement, to
call Mr Reinders, trumped speculations about the practicality of
allowing him
to be called.
[29] Even though it
appears from the commissioner’s award that he did not
specifically find that Mr Paterson had been dismissed
by the
appellant to obviate the necessity of retrenching him, the
commissioner did find as a fact that Mr Paterson was dismissed
for
reasons other than those which formed the subject-matter of the
charges at the disciplinary enquiry. It may be so that the
commissioner also found that the sanction was in any event too harsh
because of the circumstances, but in that regard the commissioner
also erred in referring to the misconduct, that Mr Paterson had
pleaded guilty to, as “
flimsy
”. Reinders’
evidence was clearly material to the first issue, namely, whether Mr
Paterson had been dismissed for other
reasons. The second basis,
according to the argument of Mr Paterson’s counsel, was
independent of the first basis, but counsel
had difficulty showing on
the record that Mr Kachidza’s testimony, namely that Mr
Paterson was to be dismissed for other
reasons, did not influence the
commissioner’s finding on the second basis. Counsel could also
not explain what was “
flimsy
” about the misconduct
that Paterson was found guilty of, and ascribed this to unfortunate
language on the part of the commissioner.
[30] It is clear that in
deciding on the compensation to be paid to Mr Paterson, who did not
seek reinstatement, the commissioner
took into account that Mr
Paterson was dismissed for reasons other than his unfortunate use of
racist language. The outcome, namely,
the commissioner’s
findings on substantive fairness and compensation, might have been
different if the appellant had been
allowed to call Reinders and
Reinders had contradicted the unfavourable evidence of Mr Kadhidza.
[31] In my view, a
reasonable commissioner would not have disallowed the calling of Mr
Reinders. The disallowance is an irregularity
which is material since
it clearly influenced the outcome of the arbitration. The court
a
quo
was thus wrong in its finding and conclusion that the
commissioner’s decisions, conclusions and award were of a kind
that
a reasonable commissioner could have come to, or have made. Both
parties in their submissions conceded that if the award were to
be
set aside, because of the commissioner’s refusal to allow the
calling of Mr Reinders, the matter ought to be referred
back to the
CCMA for hearing to enable the appellant to produce the necessary
evidence to contradict the unfavourable evidence
given by Mr
Kadchiza. In my view, the irregularity is of a kind that vitiates the
entire award and fairness calls for a hearing
de novo
.
[32] As regards costs,
the appellant has asked for costs in the event of the appeal
succeeding. Mr Paterson’s counsel has
submitted that even if
the appeal succeeds there should be no costs order. In my view, given
all the facts and circumstances, in
fairness and in law, no costs
order should be made in respect of the appeal or the review.
[33] In the result the
following is ordered:
1.
The
late lodging of the appeal is condoned.
2.
The
appeal is upheld and no order as to costs is made.
3.
The
Labour Court’s order, dismissing the review application, is set
aside and is substituted with the following order:
“
1.
The arbitration award of the
second respondent under Case No GATW 6055.09, dated 30 August
2009
and issued on 21 September 2009, is reviewed and set aside.
2.
The
matter is referred back to the Commission for Conciliation, Mediation
and Arbitration for a hearing de novo before a different
Commissioner.
3.
No costs order is made.
”
____________________
Coppin
AJA
I agree:
____________________
Tlaletsi
DJP
I agree:
____________________
Ndlovu
JA
APPEARANCES:
FOR THE
APPELLANT
Adv R G Bowles
Instructed
by Gerhard Botha and Partners Inc
FOR THE
RESPONDENT Adv W J
Hutchinson
Instructed
by Fluxmans Inc
[1]
Mr
Paterson did not seek reinstatement.
[2]
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp
[2002] 6 BLLR 498 (LAC).
[3]
See
Sidumo
and Another v Rustenburg Platinum Mines and Others Ltd
2008
(2) SA 24
(CC) (also reported in
[2007] 12 BLLR 1097
(CC)). The
Sidumo
decision
was followed and explained by the SCA in
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
2009 (3) SA 493
(SCA) (also reported at [2009] 7 BLLR 619).
[4]
[2013]
11 BLLR 1074
(SCA) par 25 at 1084.
[5]
S
v Steyn en Andere
1987 (1) SA 353
(W) at 357G-H.
[6]
See
The
South African Law of Evidence
(2
nd
Edition) D T Zeffert and A P Paizes pages 901-902 and the cases
cited there including
Moothoosamy
v Murugan
1919 (40) NLR 402.