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[2014] ZALAC 35
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Gold One Africa Limited Modder East Operations v Van Der Westhuizen and Others (JA 53/13) [2014] ZALAC 35 (3 July 2014)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable / Not
Reportable
Case no: JA 53/13
In
the matter between:
GOLD
ONE AFRICA LIMITED MODDER
EAST
OPERATIONS
...............................................................................................................
Appellant
and
JOHANNES
PETRUS DIEDERIK VAN DER
WESTHUIZEN
.............................................................................................................
First
Respondent
COMMISSIONER
THABA SEKHABISA
….......................................................
Second
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
......................................................................
Third Respondent
Heard:
29 May 2014
Delivered:
03 July 2014
CORAM:
Davis JA, Ndlovu JA et Molemela AJA
JUDGMENT
DAVIS
JA
Introduction
[1]
This is an appeal against the judgment of
the Labour Court of 6 December 2012, leave having been granted by the
court
a quo
to this Court on 8 May 2013.
The
background
[2]
First respondent commenced employment with
appellant on 8 February 2010. At the time of his
dismissal on 18 November
2010, he was employed in the position of
Acting Chief Foreman and earned a salary of R 14 500.00 per
month. He was charged
with assaulting a fellow employee.
A disciplinary hearing in respect of this alleged misconduct was held
on 17 November 2010
which he did not attend. The
chairperson of the enquiry found first respondent to be guilty of the
allegations against
him and issued the sanction of dismissal.
First respondent appealed this outcome. The appeal hearing was
attended by first
respondent on 22 November 2010. The
chairperson of the appeal hearing confirmed first respondent’s
dismissal.
As a result thereof, first respondent referred
the dispute to third respondent.
[3]
At the hearing before second respondent,
first respondent testified that on 10 October 2010 he was busy with a
meeting when the
mine representative opened the door to his office.
According to first respondent:
‘
As
he was about to enter I placed my hand on his chest and said woh they
are busy with a meeting and then I placed my hand on the
door
handle. That mine representative said so now you want to
assault me. So I said no I leave the door and I leave
my hand
away from him and I waited for the mine overseer.’
First
respondent confirmed that when the representative from appellant’s
human resources department, Ms Funeka Mokoena sought,
in terms of
appellant’s disciplinary code, to parade him on 11 October, he
refused to attend a meeting at her office.
Later he
refused her request to sign the notification that he should attend
the disciplinary hearing. It appears from
the evidence
that first respondent knew that a disciplinary hearing was to be held
on 17 November 2010, that he did not attend
that hearing but did
attend the appeal hearing where he was represented.
[4]
The chairperson of the relevant branch of
the National Union of Mineworkers, Mr Mtunzi Ciko also provided
evidence to second respondent.
He testified that he had
approached first respondent with a complaint that one of appellant’s
workers had been pushed by
first respondent, who was the shift
supervisor. He reported the matter to Mr Steve Tekane who called
first respondent to his office
together with Mr Ciko. According
to Mr Ciko he began to discuss the allegation with Mr Tekane:
‘
He
then asked us to what happened. Why was the complainant pushed
so hard? Before I could repeat what I was saying Wessie
(first
respondent) stood up and grabbed me by the clothes and then pushed me
very hard against the wall’.
[5]
Second respondent examined this evidence
and held as follows:
‘
The
testimony of Mr Ciko was clear, coherent and simple. I find Mr
Ciko’s version probable. The applicant’s
defence was that why did Mr Ciko wait for a month before lodging the
grievance. Mr Ciko however testified that he lodged
the
grievance on the day of the incident. I find the applicant’s
version that he only put his hand out and it was Mr
Ciko that put his
chest against his hand to be highly improbable. It was clear
that the applicant assaulted Mr Ciko.
I am of the view that the
applicant’s aforesaid conduct was of a serious nature and
warrants his dismissal.’
[6]
In deciding the review application the
court
a quo,
per Molahlehi J, upheld the review, essentially on two grounds.
The court accepted first respondent’s argument
that he had not
been properly paraded in terms of the disciplinary code of the
appellant and consequently the charges had not been
properly served
upon him as a result of which he was entitled to absent himself from
the disciplinary hearing which proceeded in
his absence.
Furthermore, no explanation was provided as to why the complainant
(Mr Ciko) had not lodged his complaint within
48 hours of the
incident. In short the learned judge drew the inference
that if the complainant regarded the alleged
incident as serious, he
would not have taken more than a month after the incident occurred to
report the matter to management.
The
appeal
[7]
On appeal three issues emerged as central
to the disposition of this dispute being:
1. Whether the
dismissal was substantively unfair?
2. Whether second
respondent provided sufficient assistance to the first respondent at
the hearing, given that first respondent
was unrepresented at the
hearing? and
3. In terms of
clause 8.7 of appellant’s disciplinary code, if an employee
fails to attend the enquiry, he has to be given
a second notification
for hearing on a date at least 24 hours later. As it was
common cause that this had not taken
place, first respondent
contended that there had been a significant procedural irregularity.
Substantive
fairness
[8]
Mr Marx, on behalf of first respondent,
submitted that second respondent had not taken account of clear
discrepancies in the overall
evidence of Mr Ciko. He referred
to the following statement of Mr Ciko to the disciplinary enquiry :
‘
The
supervisor was standing on the door to my left-hand side, he pushed
me hardly and roughly on my chest, I lost a bit of my balance
then I
asked as I recovered my stance what was happening with him.’
According
to Mr Marx, in Mr Ciko’s evidence before second respondent, he
said: ‘Before I could repeat what I was saying
Wessie had stood
up, grabbed me by the clothes and then pushed me very hard against
the wall.’
[9]
According to Mr Marx these passages
constituted two different versions of events. Accordingly,
second respondent should have
treated this evidence with considerable
care, in particular because Mr Ciko was a single witness.
[10]
Mr Redding, on behalf of the appellant,
pointed to discrepancies in the evidence of first respondent. I have
already indicated the
nature of first respondent’s evidence in
chief, namely that he placed his hand on the chest of the
complainant. In
cross examination he said the following:
‘
Without
knocking he just opened the door. So, I said, woh, my hand in a
forward motion and then he came to my hand.
Sort of brought his
chest against my hand. I told him we are busy with a meeting.’
[11]
The question is whether this decision of
the second respondent is one which a reasonable decision maker could
not reach.
Sidumo v Rustenburg Platinum
Mines Ltd
2008 (2) SA 24
(CC) at para
110.
[12]
In applying the test in
Sidumo
,
supra
Cachalia
JA and Wallis JA in
Herholdt v Nedbank
(Cosatu as
amicus
curiae
)
2013 (6) SA 224
(SCA) at para 13 reminded reviewing courts that the
distinction between a review and an appeal must be preserved. Thus:
‘
While
the evidence must necessarily be scrutinized to determine whether the
outcome was reasonable, the reviewing court must always
be alert to
remind itself that it must avoid “judicial overzealousness”
in setting aside administrative decisions that
do not coincide with
the judge’s own opinions’.
(para
13)
In
amplification thereof, the learned judges of appeal said:
‘
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 their effect is to render
the outcome
unreasonable.’
(para 25)
[13]
In the present case, taking account of the
argument concerning the two versions which Mr Marx suggested were
offered by Mr Ciko
in his evidence as well as the evidence given by
first respondent, it cannot, on any plausible basis, be found to be
unreasonable
to have concluded that an assault had taken place.
In this context, appellant’s disciplinary code provides that
either
assault or attempted assault is a serious offence.
On the basis of the evidence presented to second respondent it cannot
be said that the weight and relevance which the second respondent
attached to the evidence had the effect that the outcome was
unreasonable. Expressed differently, a reasonable
decision maker was entitled to conclude that first respondent’s
conduct constituted an assault in terms of the appellant’s
disciplinary code. It follows that there is no merit in the argument
that the second respondent’s decision to confirm the dismissal
was substantively unfair and hence this decision to
dismiss
first respondent should be set aside.
Assistance
to first respondent by second respondent
[14]
First respondent contended that as he was
not represented, second respondent had not provided sufficient
assistance to him during
the hearing. In his supplementary
affidavit, first respondent averred as follows:
‘
The
second respondent failed, refused
and/or neglected to assist me, an unrepresented lay person, to place
his case properly before
the CCMA, i.e.
i. assisting me in
explaining to me what evidence should be led;
ii. assisting me in
what allegations should be made;
iii. assisting me in
explaining to me how to place my version before the CCMA.
The 2
nd
respondent failed, refused and/or neglected to assist me, a lay
person, in cross examination of the respondent’s witnesses.
The 2
nd
respondent failed, refused and/or neglected to assist me in putting
my case properly before the CCMA.’
[15]
In answer, appellant, by way of an
affidavit deposed to by Mr Rule, contended that first respondent had
presented a full version
of events at the arbitration hearing.
Mr Rule averred that, although Mr Fourie’ request to represent
first respondent
at the arbitration had been refused, he doubtlessly
would have assisted first respondent in the latter’s
preparation prior
to the hearing. Further, first
respondent neglected to inform the court what further evidence second
respondent should
‘have extracted from him had he been so
“assisted”’.
[16]
If a reviewing court must avoid ‘judicial
overzealousness’ in setting aside administrative decisions that
do not coincide
with the courts own view, it must also be careful not
to impose its conception of the manner in which an institution such
as third
respondent organizes a hearing. Before a court
interferes with a decision made by a representative of third
respondent,
the least that is required by a complainant as first
respondent is a clear exposition as to how an arbitrator should have
come
to the assistance of the complainant. In this case, an
examination of first respondent’s cross examination of Ms
Mokoena
reveals that he put his version to Ms Mokoena and asked
all of the questions which could reasonably be expected by a cross
examiner.
The cross examination of Mr Ciko was somewhat
shorter. The reason appears to be that the essential point
first respondent
made was that Mr Ciko had waited for ‘a month
and six days before you lodged a complaint’.
[17]
For these reasons in particular, it is
difficult to see on this record precisely where the second respondent
failed to conduct a
fair hearing. Were this court to come
to the aid of every unrepresented person who, after receiving ex
post
facto
legal advice, claims that there
was procedural unfairness at the hearing conducted by a member of
third respondent but does so
vaguely at best, or in general terms
without any specification, the very process of arbitration hearings
before so vital an institution
as third respondent would grind to a
litigious halt. Almost every case in which an adverse
finding against an unrepresented
person has been made would then be
the subject matter of a review. On these papers and on these
facts, there is no merit
in the argument of first respondent.
The
failure to provide first respondent with 24 hours’ notice
[18]
Mr Redding conceded correctly that no
notice had been given to first respondent, sufficient to comply with
clause 8.7 of the appellant’s
disciplinary code. He was
therefore constrained to contend that as first respondent had been
given a right to appeal against
the decision of the disciplinary body
and had exercised this right, the appeal hearing had taken the
form of a rehearing
in which first respondent had participated.
Mr Redding referred to
Khoza v Gypsum
Industries Limited
[1997] 7 BLLR 857
(LAC) where this Court held that any procedural defect in a
disciplinary enquiry may be cured on appeal. On this basis, Mr
Redding submitted that the requirement of procedural fairness had
been met.
[19]
The facts upon which the decision in
Khoza
,
supra
had
been based, do not appear to have been replicated in this case.
When the documentation reflecting the appeal enquiry
is examined, it
appears that first respondent was represented at the appeal
hearing. He appeared to treat the hearing
as a
conventional appeal in that he stated his grounds of appeal as
“sentence too harsh” and further “he did
not
assault the person laying the charges”. But it does not appear
from the record that a process of examination and cross
examination
of witnesses took place at the appeal hearing, sufficient to justify
the submission that the appeal hearing was in
effect a hearing
de
novo
.
[20]
In
Khoza
,
supra
Myburgh JP at 860 I said:
‘
At
the initial enquiry and on appeal the appellant is represented by an
attorney which is an unusual privilege. The appellant’s
interest was safeguarded where specific charges were put to him, he
had sufficient time to prepare, his attorney given the opportunity
to
test the respondent’s evidence, the appellant gave evidence and
he appealed against the initial finding.’
None
of this occurred at the appeal hearing in this case in which it
appeared that only argument was heard, subsequent to which
the
initial decision was confirmed.
[21]
In my view, a breach of clause 8.7, that is
the failure to give first respondent the additional 24 hours’
notice before the
disciplinary enquiry on 17 November 2010 could take
place, was not cured by the appeal hearing. On this point
therefore,
there has been a procedural irregularity and accordingly a
failure to dismiss the first respondent on procedurally fair
grounds.
In turn, this justifies an appropriate award of
compensation, which given that the offence was an assault of a shop
steward and
that there was an appeal hearing, should not be more than
six months remuneration.
[22]
In the result, the appeal must succeed in
part in that the decision of the court
a
quo
must be set aside and replaced by
the following order:
1. The application
for review of the decision of the second respondent is upheld.
2. It is declared
that the decision to dismiss applicant is substantively fair.
3. The decision to
dismiss the applicant is found to be procedurally unfair.
4. The first
respondent is ordered to pay compensation to the applicant in the
amount of 6 months remuneration calculated at applicant’s
rate
of remuneration on the date of dismissal.
5. There is no order
as to costs.
There
is no order as to costs incurred in the prosecution of the appeal.
________________
Davis
JA
Judge of the Labour
Appeal Court of South Africa
Ndlovu
JA and Molemela AJA concur in the judgment of Davis JA
Appearances
For the appellant:
Adv A Redding SC and L.Louw
Instructed by:
Edward Nathan Sonnenbergs
For the First
respondent: Adv H.E. Marx
Instructed
by: Roets & Du Plessis