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[2015] ZALAC 119
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Lear Sewing (Pty) Ltd v Koorts N.O and Others (PA1/13) [2015] ZALAC 119 (13 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Case
no: PA1/13
In
the matter between:
LEAR
SEWING (PTY) LTD PORT ELIZABETH
Appellant
and
MARTIN KOORTS
N.O. First
Respondent
DISPUTE RESOLUTION
CENTRE
OF THE MOTOR INDUSTRY
BARGAINING
COUNCIL Second
Respondent
NATIONAL UNION OF
METAL WORKERS OF
SOUTH AFRICA obo
ARETHA WHITEBOOI
Third Respondent
Heard: 28 November
2013
Delivered: 13 February
2015
Summary: Review of
arbitration award - employer contending that the commissioner in
utilising the content of a previous inconsistent
statement in making
an adverse credibility finding and rejecting its witness’
evidence as unreliable, breached the
audi alteram partem
rule,
consequently, the commissioner committed an irregularity which
rendered the arbitration award susceptible to review –
the
court finding that the first respondent’s failure to put the
content of a previous inconsistent statement to the employer’s
witness not necessarily breaching the
audi alteram
rule
because the commissioner in reaching his primary adverse credibility
finding had regard to the totality of the evidential
material
including the appellant’s previous witness’ inconsistent
statement alluded to in the arbitration by the appellant’s
representative, consequently, the commissioner’s primary
decision falls within a range of reasonable decisions a commissioner
would have reached having regard to the totality of the evidence –
the appeal is dismissed.
Coram: Tlaletsi DJP,
Musi AJA and Mokgoatlheng AJA
JUDGMENT
MOKGOATLHENG
AJA
Introduction
[1]
This is an appeal against the judgment of the Labour Court (Lallie
AJ) in terms whereof that court dismissed the appellant’s
review application against the arbitration award issued by the first
respondent (the commissioner acting under the auspices of
the second
respondent) in which he determined that the appellant’s
dismissal of it employee (Aretha Whitebooi, who is a member
of the
third respondent (a registered trade union) from her employment was
substantively unfair and directed that she be retrospectively
reinstated with full emoluments. The appeal is with the leave of the
court a quo
.
The
Factual Matrix
[2]
The appellant is a manufacturer of automotive electrical components.
Aretha Whitebooi (hereinafter referred to as the employee)
was
employed by the appellant as a production line cell leader at its
plant situated at Port Elizabeth. She was also a shop steward
of the
third respondent. A certain Glenston Potberg (Potberg) was employed
by the appellant as a labourer in the packaging area.
He was however
not a member of the third respondent. During September 2010, the
third respondent embarked on a strike action in
the automotive
component industry. The third respondent’s members in the
appellant’s employment heeded the call and
joined the strike
action. Potberg was amongst the contingent of the appellant’s
employees who did not join the strike.
[3]
It is the appellant’s case that the strike was interspersed
with incidents of intimidation and violence against non-striking
employees. On 3 September 2010 at the appellant’s premises,
Potberg witnessed the third respondent’s members violently
attacking a non-striking employee reporting for duty.
[4]
After knocking off work on 3 September 2010, Potberg on his way home
met the employee at the Cleary Park Shopping Centre. The
employee
engaged him in a discussion and told him that: “
we are
coming for you
”. Potberg understood the employee’s
utterance to be a threat. The following day, Potberg reported the
incident to the
appellant’s management. However, the employee’s
version differs from that of Potberg in that she alleges that she
said
to Potberg: “
Hey Pottie they are coming after you
.”
She stated that her intention was to warn Potberg of persons who
wanted to harm him. She did not intend to threaten Potberg.
[5]
As a consequence of Potberg’s statement, the appellant charged
the employee with intimidating Potberg to join the strike.
Pursuant
to a disciplinary enquiry, she was found guilty and was dismissed
from her employment. The third respondent acting on
behalf of the
employee referred a dispute of unfair dismissal to the second
respondent for conciliation. The dispute could not
be resolved
through conciliation and was referred to arbitration by the first
respondent.
The
Arbitration
[6]
Potberg testified on behalf of the appellant, and the employee on
behalf of the third respondent. The first respondent found
that
Potberg’s evidence was contradictory and unreliable. He held
that in contrast to Potberg’s evidence, the employee’s
evidence was consistent and reliable. He also found that the
employee’s dismissal was substantively unfair and as pointed
out above, he retrospectively reinstated her with full emoluments.
[7]
The first respondent found that in the context of the incident, on a
balance of probabilities, the employee did not use the
words “
we
are coming to get you”
instead he must have said “
they
are coming to get you
”. The first respondent also found
that Potberg had misinterpreted the employee’s warning as a
threat because of the
prevailing strike violence. The first
respondent found further that on the probabilities the employee’s
use of the word “
they
”, was indicative that she
excluded herself from persons who intended to harm Potberg.
The
Review
[8]
In its review application, the appellant contended that the first
respondent committed a latent gross irregularity in that he
had
failed to apply his mind to the material facts and had as a result
misdirected himself by concluding that the employee had
not threaten
Potberg but had intended to warn him.
[9]
The
court a quo
upheld the first respondent’s award and
found that it had considered Potberg’s written statement
because it formed
part of the evidence presented at the arbitration.
Further the
court a quo
found that the first respondent’s
conclusion that Potberg’s evidence was contradictory, and
unreliable was a reasonable
conclusion a reasonable commissioner
could reach on the evidence presented at the arbitration.
The
Application for Leave to Appeal
[10]
The appellant contended that the first respondent committed a latent
gross irregularity by finding that the employee did not
threaten
Potberg, and as a consequent thereof made a conclusion finding a
reasonable commissioner would not have reached having
regard to the
evidence before him.
[11]
Further the appellant contended that the first respondent committed a
patent gross irregularity in discrediting Potberg’s
evidence as
inconsistent, contradictory and unreliable by relying for this
finding on Potberg’s previous inconsistent statement
which was
not raised during the arbitration nor its contents put to Potberg to
elicit his response, comment or explanation.
[12]
The
court
a quo
acceded
to the appellant’s contention that there was a possibility that
this Court may find that the first respondent had
committed a patent
gross irregularity by having relied on a previous inconsistent
statement for discrediting Potberg’s evidence
as
unreliable,
when such statement was not raised or put to him during the
arbitration. For its decision, the
court
a quo
relied on the judgment of
Portnet
(a division of Transnet Ltd) v Finnemore and Others
.
[1]
[13]
The
court a quo
reasoned that despite the fact that the first
respondent’s failure to put Potberg’s previous
inconsistent statement
to him for his comment or explanation was
neither pleaded nor raised during the review proceedings, there was a
reasonable possibility
that this Court may find that the first
respondent’s omission to do so before discrediting Potberg’s
evidence may have
rendered the arbitration award susceptible to
review.
The
Appeal
[14]
The appellant’s counsel argued that the patent gross
irregularity committed by the first respondent amounted to an act
of
procedural unfairness against the appellant in that because the
irregularity appeared
ex facie
on record, the
court a quo
was obliged to have raised the irregularity
mero motu
despite
it not having been pleaded or argued, in the premises there was no
legal bar against to the appellant raising this legal
point on
appeal.
[15]
In support of his argument that the
court
a quo
had misdirected itself in not
mero
motu
raising the said legal point the appellant’s counsel citied the
case of
Tao
Ying Metal Industries and Others
[2]
where O’Regan J in the minority judgment held as follows:
‘
Where
a material irregularity or other defect appears on the face of the
record before the reviewing court, which defect would mean
that the
proceedings before the tribunal were either unlawful or procedurally
unfair or unreasonable, the reviewing court is not
obliged to
overlook that defect
.’
[3]
[16]
The appellant’s counsel submitted that the first respondent by
relying on Potberg’s previous inconsistent statement
not raised
in the arbitration in rejecting his evidence as unreliable and
contradictory, gave the employee the benefit of an unarticulated
defence which resulted in the first respondent deciding the matter on
the basis of a negative
credibility
finding arising from a previous inconsistent statement made by
Potberg not referred to during the arbitration. In support
of this
argument counsel citied the case of
Mutual
& Federal Insurance Co Ltd v Commission for Conciliation
Mediation & Arbitration and Others
[4]
where Jali AJ (as he then was) held:
‘
Where
a witness has made a previous statement which tends to be
inconsistent with a statement which is made at a hearing, the best
known method of impeaching his credibility is to draw the witness’s
attention to the statement which he made previously and
provide him
with an opportunity to give an explanation. This would enable counsel
and the court to establish whether the witness
is telling the truth
or not. In the circumstances, the failure or refusal by the
commissioner to give the representative an opportunity
to put the
different or contradictory versions to the other sides witness should
be regarded as a gross irregularity.’
[5]
Further
the appellant’s counsel also referred to the case of
Portnet
(supra)
[6]
and the judgment of the Labour Court (per Ntsebeza AJ) in
Minister
of Safety & Security v Mashego and Others.
[7]
[17]
The third respondent’s counsel objected to the appellant
raising the alleged patent gross irregularity allegedly committed
by
the first respondent by having relied on Potberg’s previous
inconsistent statement in concluding that his evidence was
contradictory and unreliable because this legal point was neither
pleaded nor argued in the
court a quo,
consequently, it was
impermissible for the appellant to raise this legal issue at appeal.
I demur. There is no legal impediment
barring a litigant from raising
a point of law on appeal.
[18]
Counsel further argued that at best the first respondent’s
failure to put Potberg’s previous inconsistent statement
to him
for an explanation amounted to an inconsequential omission which had
no direct bearing on the validity of the first respondent’s
award.
[19]
In any event, the third respondent’s counsel argued that
O’Regan J in her minority judgment in
Tao Ying Metal
Industries
(supra) referred to the commission of a “
material
irregularity
” which could possibly render the arbitration
proceedings unlawful, procedurally unfair or unreasonable. The
inconsequential
omission the first respondent allegedly committed is
certainly not a material irregularity as envisaged by O’Regan J
counsel
submitted. The third respondent’s counsel further
submitted that the appellant’s reliance on the judgment of
O’Regan
J in
Tao Ying
(supra) was misconceived because
Ngcobo J writing on behalf of the majority of the court in the same
matter held differently as
follows:
‘
[67]
Subject to what is stated in the following paragraph,
the
role of reviewing court is limited to deciding issues that are raised
in the review proceedings. It may not on its own raise
issues which
were not raised by the party who seeks to review an arbitral award
.
There is to be said for the submission by the workers that it is not
for the reviewing court to tell a litigant what it should
complain
about. In particular, the LRA specifies the grounds upon which
arbitral may be reviewed.
A
party who seeks to review an arbitral award is bound by the grounds
contained in the review application. A litigant may not appeal
or
raise a new ground of review.
To permit a party to do so may very well undermine the objective of
the LRA to have labour disputes resolved as speedily as possible.
[68]
These principles are, however, subject to one qualification. Where a
point of law is apparent on the papers, but the common
approach of
the parties proceeds on a wrong perception of what the law is, a
court is not only entitled, but is in fact also obliged,
mero motu,
to raise the point of law and require the parties to deal therewith.
Otherwise, the result would be a decision premised
on an incorrect
application of the law. That would infringe the principle of
legality. Accordingly, the Supreme Court of Appeal
was entitled mero
motu to raise the issue of the commissioner’s jurisdiction and
to enquire argument thereon. However, as
well be shown below, on a
proper analysis of the record, the arbitration proceedings in fact
did not reach the stage where the
question of jurisdiction came into
play.’
The
Analysis and Evaluation of the Evidence
[20]
The fact of the matter is that although there are differences in
Potberg’s previous inconsistent statement when compared
with
his evidence at the arbitration, the first respondent did not solely
rely on the content of Potberg’s previous inconsistent
statement in discrediting Potberg’s evidence as inconsistent,
contradictory and unreliable
[21]
To properly understand the full import of the first respondent’s
award, it is apposite to cite the salient features thereof.
I quote
same verbatim:
‘
It
is my view that the evidence before me has not established on a
balance of probabilities that the employee was guilty of the
alleged
misconduct, if inter alia the following is considered:
The
evidence of the single Employer witness was in my view not
consistent. He changed his statement on crucial evidence a number
of
times. His explanation that “they” and “we”
is one of the same thing is in my view not correct if I
consider the
context in which the incident occurred. During the arbitration
hearing it was evident to me that Potberg stated “we”
which could only be an attempt to implicate the employee. He never
stated “we” in his statement but “they”
and
it was also clear to me that the employer’s version was that
the employee used the word “they”. It is further
my view
that if the word “we” was used by the employee it could
be viewed as intimidation but not if the word “they”
was
used. It is my interpretation that “they” in the context
before me indicates to me that the employee excluded herself
from the
people who intended to harm Potberg and shows on a balance of
probabilities that that she meant to warn Potberg and not
threaten
him…’
[22]
At the arbitration, Potberg testified that the employee said to him
“
they were coming for me
”. Later he contradicted
himself and stated that the employee had said: “
We are
coming for you
.” He further stated that he understood these
utterances as a threat because the employee was a shop steward. Under
cross–examination
Potberg testified that the statement “
they
are coming for you
” and “
we are coming for you
”
to him meant the same thing.
[23]
When the third respondent’s representative put it to Potberg
that he was not sure whether the employee had used “
they
”
or “
we
”, he responded that “
ek is seker
that “they” and “we” is the same
.”
When asked which word the employee had used before the word “
coming
”,
was it “
they
” or “
we
”? Potberg
responded “
she (the employee) said they are coming for you
”.
[24]
From this analysis, it follows that the first respondent’s
adverse primary finding in rejecting Potberg’s evidence
as
contradictory, inconsistent and unreliable is primarily based on the
first respondent’s evaluation of Potberg’s
viva voce
evidence tendered at the arbitration.
[25]
The first respondent’s secondary finding that Potberg was an
unreliable witness is based on the differences the first
respondent
identified between the content of Potberg’s previous
inconsistent statement and his testimony at the arbitration.
[26]
Later in his award the first respondent states:
‘
In
Mr Potberg’s statement as contained in the bundle he held that
the employee said to him “on Monday 6 September they
will come
for me, they will hurt me”. There are major differences if the
statement is compared with what Potberg stated at
this arbitration
hearing.
Potberg
goes further in his statement and says that he then responded telling
the employee that “they must come for me I am
not afraid”.
At this arbitration hearing Potberg never mentioned this and
testified that he phoned his wife and informed
her about what the
employee had said to him.
In
the premises I find that Potberg is not a reliable witness and I
cannot rely on his evidence.
This
arbitration hearing is a fresh hearing and the onus is on the
employer to prove the employee’s guilt on a balance of
probabilities; Potberg was the only witness who testified on behalf
of the employer.
If
I consider the employee’s evidence I am of the view that her
version was consistent on material issues and she was consistent
in
her version that she used the word “they”’.
[27]
The appellant’s representative in the arbitration referred
Potberg to his statement by putting the assertion that the
discussion
Potberg had with the employee at the Cleary Park Shopping Centre,
indicated that his
viva voce
evidence at the arbitration was
consistent with the written statement he made to the appellant in
that his evidence confirmed that
the words the employee had uttered
to him were “
they are coming for you
”.
[28]
The secondary adverse credibility finding made by the first
respondent in rejecting Potberg’s evidence as unreliable
is
also based on the conclusion he drew that Potberg did not testify
about certain allegations set out in his previous inconsistent
statement at the arbitration. Further the first respondent found that
Potberg also did not testify that when the employee said
to him “
they
will hurt me
”,
he had responded; “
they
can come I am not afraid
.”
[29]
In my view, having regard to the appellant’s representative’s
assertion regarding the content of Potberg’s
previous
inconsistent statement, the first respondent was entitled to have
recourse to such statement to verify whether the assertions
put to
him by the appellant’s representative accorded with what
Potberg had testified or what the contents in his written
statement
were.
[30]
In my view, the first respondent was referring to this portion of
Potberg’s previous inconsistent statement in his secondary
adverse finding in discrediting Potberg’s evidence and rejected
it as contradictory and unreliable.
[31]
In
SA
Commercial Catering & Allied Workers Union and Others v Pick ‘n
Pay Retailers (Pty) Ltd and Others,
[8]
Van Niekerk J, stated the following:
‘
The
applicants rely solely on the ground of review of a (latent) gross
irregularity. In order for there to be gross irregularity
warranting
interference on review, two conditions must be
met:
firstly, the omission of the part of the arbitrator must involve him
or her having misconceived the nature of the enquiry of
his or her
duties in connection with the enquiry, and thus result in him
preventing a fair trial of the matter. Secondly, there
must not exist
material that would serve to justify the arbitrator’s decision,
because ‘if there was material before
the [arbitrator],
justifying the action taken, the court would not be entitled to
interfere even if an irregularity had been committed.’
Put
differently, if an arbitrator was caused by inappropriate means to
reach one conclusion whereas if he had adopted appropriate
means he
might have reached another conclusion favourable to the applicant,
then the award is reviewable.’ [Footnote omitted]
[32]
The gravamen of the matter is that, the first respondent is enjoined
to consider and evaluate the totality of the evidential
material
before him, including the contents of Potberg’s previous
inconsistent statement because these were referred to by
the
appellant’s representative in leading Potberg’s evidence
in chief. It is indisputable that the first respondent
in reaching
his primary and secondary decisions had recourse to the totality of
the evidence before him.
[33]
The question is whether the first respondent’s primary decision
to reject Potberg’s evidence as inconsistent and
contradictory
based on his
viva voce is susceptible to
be reviewed because
it was unreasonable and unlawful having regard to the evidential
material before him. In my view, the answer
is in the negative.
Secondly, the further question is whether the first respondent’s
primary decision is one that a reasonable
commissioner could not have
reached having regard to the evidential material before him. In my
view, the answer is in the affirmative.
[34]
In reaffirming the test enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
,
[9]
this Court in
Fidelity
Cash Management Services v CCMA and Others
[10]
expressed the following view:
‘
It
will often happen that, in assessing the reasonable or otherwise of
an arbitration award
or
other decision of a CCMA commissioner, the court feels that it would
have arrived at a different decision of finding to that
reached by
the commissioner. When that happens, the court will need to remind
itself that the task of determining the fairness
or otherwise of such
a dismissal is in terms of the Act primarily given to the
commissioner and that the system would never work
if the court would
interfere with every decision or arbitration award of the CCMA simply
because it, that is the court, would have
dealt with the matter
differently. Obviously, this does not, in any way, mean that
decisions or arbitration awards of the CCMA
are shielded from the
legitimate scrutiny of the Labour Court on review.’
[11]
[35]
In my view, the award the first respondent made was a reasonable
award in accordance to the test enunciated in
Herholdt
v Nedbank Ltd
[12]
where Wallis JA regarding the review of CCMA awards stated:
‘
In
summary, the position regarding the review of CCMA awards is this: 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 s145 (2) (a) (ii), the
arbitrator must have misconceived the nature of the inquiry
or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could not have
reached on
all 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.’
[13]
[36]
The approach is to consider whether a gross irregularity has occurred
regarding the conduct of the arbitration, the second
part of the
enquiry is whether the outcome reached by the commissioner is
unreasonable having regard to the totality of the evidence.
[37]
This approach has been followed by Waglay JP in a recent judgment in
Goldfields
Mining South Africa (Pty) Ltd
(Kloof
Gold Mine)
v
The Commission Conciliation Mediation and Arbitration and
arbitration
[14]
paragraph
14 the learned judge states:
‘
Sidumo
does not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that
evaluation a
determination of the reasonableness of the decision arrived at. The
court in Sidumo was at pains to state that arbitration
awards made
under the Labour Relation Act continued to be determined under
section 145, but the Constitutions standard of reasonableness
is
suffused in the application for review sought on the grounds of
misconduct, gross irregularity and the conduct of the arbitration
proceedings and/or excess powers, will not lead automatically to the
setting aside of the award if any of the above grounds are
found to
be present. In other words in a case such as the present where a
gross irregularity in the proceedings is alleged, the
inquiry is not
confined to whether the arbitrator misconceived the nature of the
proceedings, but extends to whether the result
was reasonable, or put
another way, whether the decision that the arbitrator arrived a
reasonable decision-maker could come on
the available material.’
[footnote omitted]
[38]
The Learned Judge President has elaborated further on what Wallis JA
held in
Herholdt
(supra) and stated at paragraph 16 that: “
In
short, a review Court must ascertain whether the arbitrator
considered the principle issue before him or her, evaluated the facts
presented at the hearing and came to a conclusion which was
reasonable to justify the decision he or she arrived at.”
[39]
In considering a gross irregularity, the learned Judge President
states at paragraph 20 of the judgment: “
That would mean
that the award is open to be set aside where an arbitrator; (i) fails
to mention a material fact; or (ii) fails
to deal in his/her award in
some way with an issue which has some material bearing on the issue
in dispute; and/or (ii)
commits an error in respect of the
evaluation and consideration of the facts presented at the
arbitration.”
[40]
Consequently, in accordance with the test enunciated in
Sidumo
(supra) and
Herholdt
(supra) and
Goldfields Mining South
Africa (Pty) Ltd
(supra), on the totality of the evidence before
the first respondent the decision he reached is a reasonable
decision, consequently,
his award is not susceptible to be reviewed
and set aside
The
Order
[41]
(i) The appeal is dismissed.
(ii) There is no order as
to costs.
Mokgoatlheng
AJA
TLALETSI DJP and MUSI JA
concur in the judgment of MOKGOATLHENG AJA.
APPERANCES:
FOR THE
APPELLANT:
Mr Myburgh S.C.
Instructed by Kaplan
Blumberg Attorneys
FOR THE THIRD
RESPONDENT:
Mr Niehaus
Instructed by Minaar
Niehaus Attorneys
[1]
[1999] 2 BLLR 151 (LC).
[2]
2009 (2) 2004 (CC); (2008) 28 ILJ
2461 (CC) at para 131.
[3]
Ibid.
[4]
[1997] 12 BLLR 1610
(LC) at para
1614J – 1615A.
[5]
Ibid.
[6]
At paras 14 and 16.
[7]
c
[8]
[2012]
1 BLLR 71 (LC) at para 8.
[9]
(2007) 12 BLLR 1097 (CC).
[10]
[2008] 3 BLLR 197
(LAC) para 98.
[11]
Ibid.
[12]
(2013)
34 ILJ 2795 (SCA).
[13]
At para 25..
[14]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC).