About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2014
>>
[2014] ZALAC 91
|
|
Gold One Africa Ltd vs J P D van der Westhuizen (JA 53/13) [2014] ZALAC 91 (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