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[2016] ZALAC 38
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Satani v Department of Education, Western Cape and Others (CA10/15) [2016] ZALAC 38; (2016) 37 ILJ 2298 (LAC) (13 June 2016)
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IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case no: CA10/15
In
the matter between:
MONDE
CHRIS
SATANI Appellant
an
DEPARTMENT
OF EDUCATION, WESTERN CAPE First
Respondent
MS
B GOLDMAN
N.O
Second
Respondent
EDUCATION
LABOUR RELATIONS COUNCIL Third
Respondent
Heard:
23 February 2016
Delivered:
13 June 2016
Summary: Practice and
Procedure – reasonable apprehension of bias - Commissioners are
enjoined to conduct arbitration in a
manner that they deem
appropriate – they might adopt an adversarial or inquisitorial
approach but must guard against an intervention
that is likely to
suggest bias or a perception of bias in favour of a particular party
to the dispute. Commissioners must refrain
from assisting a party to
the detriment of the other, cross-examining witnesses by
inter
alia
, challenging the consistency of a witness, expressing doubt
about the credibility and reliability of a witness – in
casu
the
record is replete with instances where commissioner’s
intervention advances employer’s case to the detriment of the
employee - failure to object by a party or its legal
representative cannot render an unfair process or conduct fair or
acceptable
- test for reasonable apprehension of bias not premised on
whether the representative objected to the process. Test an objective
one which is whether a reasonable, objective and informed person
would on the correct facts reasonably apprehend that the commissioner
has not brought an impartial mind to bear in the adjudication of the
dispute. Labour Court’s judgment set aside and award
remitted
to be heard
de novo
, if need be.
Coram:
Waglay JP, Tlaletsi DJP
et
Murphy AJA
JUDGMENT
TLALETSI
DJP
[1]
The appellant, a teacher at Bardale Primary
School, was accused by his employer, the Department of Education,
Western Cape (the
respondent) of behaving in an improper and
unbecoming manner towards a female learner (the learner). He was
subjected to a disciplinary
enquiry where he was found guilty despite
his denial of the allegations against him. His internal appeal was
also not successful
and his conviction and sanction of a final
written warning and a fine of R6000-00 payable over a period of 12
months was confirmed.
[2]
Aggrieved by his conviction and sanction,
the appellant referred a dispute to the third respondent (the
Bargaining Council) claiming
that in finding him guilty of misconduct
and imposing a sanction, the respondent had committed an unfair
labour practice for the
purpose of s 186(2)(b) of the Labour
Relations Act 66 of 1995 (the LRA).
[3]
The dispute which could not be resolved
through conciliation was arbitrated by the second respondent, an
arbitrator acting under
the auspices of the Bargaining Council, who
found that the appellant was guilty of the misconduct allegations
against him and that
the sanction imposed was appropriate. In short,
she found that the respondent did not commit an unfair labour
practice.
[4]
The appellant, once again aggrieved, but
this time by the decision of the arbitrator, launched review
proceedings in the Labour
Court contending that the arbitrator
committed misconduct in relation to her duties as an arbitrator
because her conduct gave rise
to a reasonable apprehension of bias
and secondly, that the arbitrator was guilty of a gross irregularity
because she reached a
decision that no reasonable commissioner could
have reached on the evidence properly placed before her.
[5]
The Labour Court, per Steenkamp J, found
that despite the arbitrator adopting an overly inquisitorial approach
in the conduct of
the arbitration, her conduct was not sufficient to
give rise to a reasonable apprehension of bias. Furthermore, that on
a holistic
conspectus of the evidence presented at the arbitration,
the decision was not one that a reasonable commissioner could not
reach
and dismissed the review without making any order as to costs.
[6]
The appellant is now appealing against the
decision of the Labour Court with leave of that court.
[7]
What follows is a factual background that
led to the dispute which has been extracted from the record without
analysing any contradictions,
probabilities and reliability of the
versions of the parties, because of the view I ultimately take of the
matter. The appellant
was on 5 February issued with a notice to
answer the following charges:
‘
Charge
1: It is alleged that you are guilty of misconduct in terms of
section 18 (1) g of the Employment of the Educator’s
Act 76 of
1998 (the Act) in that during the third term of 2012, you behaved
badly in an improper and unbecoming manner towards
learner A, a
learner at Bardale Primary School:
·
By asking her for her cell phone number
and/or
·
By asking if you could meet and talk to her
and/or
·
By suggesting that she meets you in a
forest or bush and/or
·
By asking her if she had a boyfriend.’
The second charge has
been omitted because it was dropped prior to the disciplinary
hearing.
[8]
The learner was a grade 6 13 year old who
was among other learners who did poorly in Mathematics and English.
During September or
October 2012, the appellant who was the class
teacher (but not the subject teacher for these subjects) called them
to his desk
to discuss their marks. According to the learner, the
appellant called them individually to his desk. It must be noted at
this
stage that the appellant’s version was that he called them
as a group to his desk. According to the learner, the appellant
asked
her if she knew that she was beautiful, and asked for her cellular
phone numbers.
[9]
She claimed that the next day the appellant
called her again to his desk and asked her for her cellular phone
numbers again. He
further asked her whether she had a boyfriend, if
she went out walking at night and if she would meet him in the bush.
She refused
to give him her cellular phone numbers. On both
occasions, the incident happened in class where there were other
learners.
[10]
The learner reported the incident to
another learner as well as to her aunt with whom she was staying. The
aunt in turn reported
what she was told to the school principal. The
latter called all the affected parties to her office. The appellant
denied the incident.
He mentioned that he only asked the learner for
her mother’s telephone number in order to discuss poor marks in
the affected
subjects.
[11]
The learner’s aunt, the school
principal and another learner testified about the reports she made to
them respectively. There
were however, some discrepancies on the
actual report to them. The appellant, in addition to his evidence
called two other learners
as witnesses. The tenor of their testimony
was that the appellant called the leaners as a group to his desk and
not individually.
[12]
In a nutshell, the commissioner concluded
that the evidence of the appellant and his witnesses was not credible
as opposed to that
of the learner and her witnesses, that the
appellant was guilty of the misconduct complaint and that the
sanction imposed did not
constitute an unfair labour practice.
[13]
Section
138
[1]
of the Act empowers the
commissioners of the Commission for Conciliation, Mediation and
Arbitration (CCMA), including the Bargaining
Council to conduct
arbitrations under the LRA in a manner they consider appropriate in
order to determine the dispute fairly and
quickly. They are however,
enjoined to deal with the substantial merits of the dispute with the
minimum of legal formalities. The
commissioners are given the
discretion to decide the appropriate form of the proceedings and the
rights conferred upon a party
in terms of s138(2) are subject to the
overriding discretion conferred on the commissioners.
[14]
Conducting proceedings “
with
the minimum of legal formalities
”
suggests that arbitration proceedings are not a court of law and do
not follow a system of binding precedents. Their proceedings
are
strictly speaking not required to mimic rules and procedures adopted
in courts of law. To this end, the commissioner has a
discretion to
elect among others, an inquisitorial or adversarial approach in
conducting arbitration proceedings. Such a choice,
in my view, should
be dictated by the nature of the dispute, the parties to the dispute
as well as all other factors that might
be relevant in order to
achieve the goal of dealing with the substantial merits of the
dispute fairly, even-handedly, quickly and
with minimum of legal
formalities.
[15]
In
CUSA
v Tao Ying Metal Industries and Others,
[2]
the following was said about s138:
‘…
64.
Consistent
with the objectives of the LRA, commissioners are required to “deal
with the substantial merits of the dispute
with the minimum of legal
formalities.” This requires commissioners to deal with the
substance of a dispute between the parties.
They must cut through all
the claims and counter-claims and reach for the real dispute between
the parties. In order to perform
this task effectively, commissioners
must be allowed a significant measure of latitude in the performance
of their functions. Thus
the LRA permits commissioners to “conduct
the arbitration in a manner that the commissioner considers
appropriate”.
But in doing so, commissioners must be guided by
at least three considerations. The first is that they must resolve
the real dispute
between the parties. Second, they must do so
expeditiously. And, in resolving the labour dispute, they must act
fairly to all the
parties as the LRA enjoins them to do.
’
[3]
[Footnotes omitted]
[16]
Where an arbitrator adopts an inquisitorial approach, he/she does not
have the right to abandon the well-established rules
of natural
justice.
The
rules of natural justice are instruments that commissioners should
have in their mind when adopting an inquisitive approach.
The rules
of natural justice dictate that parties be afforded a fair and
unbiased hearing, which consists of hearing both sides
in an
impartial manner. This rule finds expression in the
audi
alteram partem
which is concerned with affording parties an opportunity to
participate in the decision that will affect them. The participation
of parties in proceedings not only improves the quality and
rationality of the decision but also enhances the legitimacy of the
decision. The
audi
alteram partem
rule implies equal participation of parties during the proceedings.
He/she must hear both sides; act impartially and consistently
to both
parties irrespective of the approach adopted.
[4]
[17] A party appearing
before a commissioner has a right to and expects a hearing that is
fair. The Constitutional Court had the
following to say about
fairness in arbitration proceedings:
‘
266.The
requirement of fairness in the conduct of arbitration proceedings is
consistent with the LRA and the Constitution. First,
a CCMA
commissioner is required by section 138(1) of the LRA “to
determine the dispute fairly and quickly”. Second,
in terms of
section 34 of the Constitution, everyone has the right to have any
dispute that can be resolved by the application
of the law decided in
a fair public hearing before a court of law or an independent and
impartial tribunal. The CCMA and Labour
Courts were established to
resolve labour disputes. CCMA arbitrations provide independent and
impartial tribunals contemplated
in section 34 of the Constitution.
The right to a fair hearing before a tribunal lies at the heart of
the rule of law. And a fair
hearing before a tribunal is a
prerequisite for an order against an individual and this is
fundamental to a just and credible legal
order. A tribunal like the
CCMA is obliged to ensure that the proceedings before it are always
fair. And finally, section 23 of
the Constitution guarantees to
everyone the right to fair labour practices.
267.It
is plain from these constitutional and statutory provisions that CCMA
arbitration proceedings should be conducted in a fair
manner. The
parties to a CCMA arbitration must be afforded a fair trial. Parties
to the CCMA arbitrations have a right to have
their cases fully and
fairly determined. Fairness in the conduct of the proceedings
requires a commissioner to apply his or her
mind to the issues that
are material to the determination of the dispute. One of the duties
of a commissioner in conducting an
arbitration is to determine the
material facts and then to apply the provisions of the LRA to those
facts in answering the question
whether the dismissal was for a fair
reason. In my judgment where a commissioner fails to apply his or her
mind to a matter which
is material to the determination of the
fairness of the sanction, it can hardly be said that there was a fair
trial of issues.’
[5]
[Footnotes
omitted]
[17] It is accepted that
commissioners are not expected to merely sit back and allow the
parties to present their cases and not
guide them to the real issues
that are to be determined. There will be instances where intervention
on the part of the commissioner
would be necessary, whether an
adversarial or inquisitorial has been adopted. However, commissioners
must guard against an intervention
that is likely to suggest bias or
a perception of bias in favour of a particular party to the dispute.
He/she must refrain from
assisting a party to the detriment of the
other, cross-examining witnesses by
inter alia
, challenging
the consistency of a witness, expressing doubt about the credibility
and reliability of a witness; putting leading
questions to witnesses;
answering questions for witnesses; showing disrespect to the parties’
representatives; not allowing
representatives to present their cases
without undue interference; doubting the capacity of a party’s
chosen representative
to represent a party and appearing to be an
expert who knows everything and evincing a mind not open to
persuasion. The list is
not exhaustive.
[18] The test for a
reasonable apprehension of bias which is equally applicable to
commissioners was authoritatively illustrated
by the Constitutional
Court as follows:
‘
[35]
A cornerstone of any fair and just legal system is the impartial
adjudication of disputes which come before the courts and
other
tribunals. This applies, of course, to both criminal and civil cases
as well as to quasi-judicial and administrative proceedings.
Nothing
is more likely to impair confidence in such proceedings, whether on
the part of litigants or the general public, than actual
bias or the
appearance of bias in the official or officials who have the power to
adjudicate on disputes’
[6]
.
And that:
‘
[48]
It follows from the foregoing that the correct approach to this
application for the recusal of members of this Court is objective
and
the onus of establishing it rests upon the applicant. The question is
whether a reasonable, objective and informed person would
on the
correct facts reasonably apprehend that the judge has not or will not
bring an impartial mind to bear on the adjudication
of the case,that
is a mind open to persuasion by the evidence and the submissions of
counsel. The reasonableness of the apprehension
must be assessed in
the light of the oath of office taken by the judges to administer
justice without fear or favour;] and their
ability to carry out that
oath by reason of their training and experience. It must be assumed
that they can disabuse their minds
of any irrelevant personal beliefs
or predispositions. They must take into account the fact that they
have a duty to sit in any
case in which they are not obliged to
recuse themselves. At the same time, it must never be forgotten that
an impartial judge is
a fundamental prerequisite for a fair trial and
a judicial officer should not hesitate to recuse herself or himself
if there are
reasonable grounds on the part of a litigant for
apprehending that the judicial officer, for whatever reasons, was not
or will
not be impartial
’
.
[7]
[Footnotes
omitted]
[19]
It should not be difficult for commissioners to meet the required
standard of fairness and impartiality because they have access
to the
CCMA Practice and Procedure Manual which provides a useful guide on
how to conduct arbitrations and what is expected of
the
commissioners.
[20]
In
ZA
One (Pty) Ltd t/a Naartjie Clothing v Goldman No and Others
,
[8]
the court took the view that it was duty bound to play a supervisory
role over the conduct of commissioners in arbitration proceedings
and
may thus consider the conduct of a commissioner even if it was not a
ground for review. The court however, emphasised that
it may only
intervene in terms of its supervisory functions, if it is apparent
from the record before the court that one of the
specific grounds as
listed in section 145(2)(a) of the LRA actually exists, as the
existence of any one of these three specific
considerations must
surely be entirely incompatible with any arbitration proceedings that
would be considered to be lawful, reasonable
and procedurally fair.
[21] The court noted
that, although a commissioner may, in terms of section 138(1),
conduct arbitration proceedings in any manner
he or she deems
appropriate, this did not give the commissioner licence to become
engaged in the proceedings to such an extent
that it appeared that he
or she was a representative of one of the parties. For a commissioner
to descend into the arena and become
an active participant in the
conduct of the case for one of the parties, was simply not fair play
and completely negated the imperative
of conducting fair arbitration
proceedings. In this respect, the court held that the manner in which
the commissioner conducted
herself in the proceedings creates the
perception that she was firmly in favour of finding for the employee
and that it created
a perception of bias.
[22]
In
Raswiswi
v CCMA and Others
,
[9]
the Labour Court came to a similar conclusion about the conduct of
the arbitrator during the proceedings when the following was
said:
‘
This
line of questioning directed by the commissioner continues in the
same vein, with the applicant's union representative scarcely
getting
a word in. Apart from the fact that the applicant's representative
had only asked one question before the arbitrator launched
into his
own line of cross-examination, it is clear that the character of his
questions to the applicant was very different to
the character of the
questions he asked the company witnesses. The entire thrust of his
questioning was not aimed at elucidating
or clarifying the
applicant's defence, but at challenging it. Moreover, the
arbitrator's questions to the applicant did not follow
naturally from
an incomplete line of cross-examination initiated by the employer:
the arbitrator took the initiative by directly
attacking the
applicant's defence, while he was still giving evidence in
chief.’
[10]
[23]
The conduct of the same commissioner who arbitrated this dispute was
again a subject of consideration by the Labour Court in
Innovation
Maven (Pty) LTD v CCMA and Others
[11]
where the following observation was made by Van Niekerk J:
‘
[17]
In
the present instance, in my view, and after a careful perusal of the
record, the commissioner’s conduct was such that she
overstepped the mark. It is difficult to convey the magnitude of the
extent to which the commissioner actively engaged in the proceedings,
but read as a whole, the transcribed record reflects that the
commissioner failed to respect the roles of the parties’
respective
representatives and assumed to herself the role of leading
evidence and conducting cross-examination
.’
[12]
[24] Unfortunately, the
same observations are applicable in this case. The record is replete
with instances where the commissioner
took over the presentation of
the case by leading evidence and not recognising the role of the
parties’ representatives.
She regularly interfered in the
appellant’s examination of the respondent’s witnesses;
allowed the respondent’s
representative to interject and
interrupt the course of questioning by the appellant’s
representative; expressed scepticism
regarding certain evidence
adduced or to be adduced by the appellant, prematurely expressed
views about appellant’s conduct
about the incident; solicited
hearsay and similar fact evidence relating to other learners who had
been allegedly approached by
the appellant and appeared to be
assisting the respondent’s representative to the detriment of
the appellant.
[25] A few examples of
instances referred to above will suffice; otherwise traversing each
and every instance of inappropriate intervention
will require me to
rewrite the entire record or attach the entire transcript of the
arbitration proceedings to this judgment.
[26] It is remarkable to
note that after the learner was sworn in, the arbitrator took over
the examination in chief in its entirety.
In fairness to the
respondent’s representative (Mr Vorster), he tried his best but
found it difficult to wrestle the process
from the arbitrator and
lead evidence in chief as required. He in most cases had to ask “
Can
I come in here Ma’am
”, “
Can I …
”.
The arbitrator would reply “
Mm…
” Mr Vorster
would ask one question and the arbitrator would immediately take over
and run with the leading of evidence. At
one occasion Mr Vorster
appeared to be pleading with the arbitrator by saying “
Ma’am,
can I just come in?
” and she replied, “
Hold on
”.
In this process, the arbitrator went at length to illicit hearsay
evidence from the learner about another learner on a
misconduct
allegation that had been withdrawn, running into several pages of the
record.
[27] The questioning by
the arbitrator led her again to extract hearsay evidence about
another learner who was not going to be called
as a witness and had
never been interviewed by the respondent. This incident seems to have
annoyed Mr Vorster who complained that
his witness was being confused
by matters not relevant to the dispute. The following altercation
ensued between the arbitrator
and the representative, Mr Vorster:
‘
Mr
Vorster
: Commissioner, no, she
mentioned S.’s name and you asked her who S. is. And that’s
why she explained. She didn’t
actually state that S.- at first
she didn’t state that S. went through the same thing as them.
You asked her, that’s
how it came out.
Commissioner
:
No, I asked her- she mentioned S. in the question Mr Satani said, one
of the questions he asked her, how far she live from her.
Mr
Vorster
: Yes.
Commissioner:
So that’s why I mentioned who she was. I
didn’t know that S. suffered the same fate, if you like.
Mr
Vorster
: Yes. But you mentioned
now that why did she only, almost like why does she bring this up now
only. She didn’t want to bring
it up- you were asking her.
Commissioner
:
No, but I just asked her who she was. I didn’t know she was
going to bring this up.
Mr
Vorster
: Oh.
Commissioner:
I didn’t ask her- I didn’t know
that she was going to- I just thought she was going to say she was
living near me.
Mr
Vorster
: No, I’m just
(indistinct).
Commissioner:
Ja, but I didn’t know she was going to
bring this up.
Mr
Vorster
: Yes. Okay. You asked
her just now why now, why now only
.’
What the arbitrator seems
to have overlooked is a warning that never ask a party’s
witness a question to which you do not
know an answer. Had she
allowed the representative to lead his witness the above situation
would have been avoided. To try and
save the situation the following
line of questioning ensued:
‘
Commissioner
:
Okay. So if you say that she- after the Principal – after the
Principal, she said she was (indistinct), did you tell the
investigating person, who was it – Ms Allen?
Mr
Vorster
: Janice Elliott.
Commissioner
:
Yes- Ms Elliott. Did you tell Ms Elliott about S.?
[Learner
]:
Yes.
Commissioner
:
That’s why you could have a look if the investigating report
says that. So you told Ms Elliott about S.? Sorry- do you know
who Ms
Elliott is before we go any further?
[
Learner]:
Yes.
That person that (indistinct) there at the school.
Commissioner
:
Yes. She was the person investigating and asked you about all this
from the Department.’
In conclusion, the
arbitrator enquired from the Learner if she knew of “
anybody
else
” that the educator asked for their phone numbers and
she replied that she does not know. She further asked if the Learner
thinks that S. would come and tell her story and she replied in the
positive. The arbitrator then said the following to the
representative
: “‘it’s up to you,
Department…..Carry on”
. By asking these questions
the arbitrator was undertaking an investigation against the
appellant, a role she should avoid as an
adjudicator.
[28] The issue of S. and
the investigation report did not end there. The arbitrator later
during the proceedings engaged the respondent’s
representative
as follows:
‘
Commissioner
:
But also, what I want to put on record, is I am subpoenaing the
investigation report. Was S. in- was she investigated?
Mr
Vorster
: No.
Commissioner
:
Was a statement taken from her?
Mr
Vorster
: No.
Commissioner:
Did the Department know about her?
Mr
Vorster
: I really don’t
know. It was never- like I said, you know, I just came here to the
arbitration (intervention).
Commissioner
:
Okay, no, no, well, you read the investigation report, because I
don’t know how you can do this case if you haven’t
read
it. Have you read the investigation report?
Mr
Vorster
: No, there is nothing
said about S. here.
Commissioner:
No. Okay.
Mr
Vorster
: In the report,
investigation report, nothing (intervention).
Commissioner:
Okay. So I just want- the investigation report
I’m subpoenaing. I want to see the statements of [the Learner]
and the statement
of A.
Mr
Vorster
: Okay.
Commissioner
:
But she has said now that she told the Principal about S..
Mr
Vorster
: Ja, because you asked
her.
Commissioner
:
No, no, but she said so! So let’s see if says so.
Mr
Vorster
: (
indistinct)
wasn’t mentioned in the hearing.
Commissioner
:
No. But it was mentioned in the- she told the principal about it, and
the Principal should have told the investigator. We’ll
see what
the Principal says
.’
It is clear from this
altercation that the arbitrator was sharing her knowledge and
experience of the investigation processes at
the appellant and also
gives instructions on the documentary evidence she wants. The manner
in which she did it was clearly to
descend into the arena reserved to
the parties to the dispute and leaving the appellant with no doubt
that she was partial. It
is worth noting that on the subsequent
hearing of the arbitration, Mr Vorster was replaced by Mr Clayton.
The reasons for the reshuffle
are not disclosed. It is however
notable that Mr Clayton also took issue with the arbitrator for
concentrating on issues relating
to a charge that the appellant was
not facing which appeared to be confusing the witness. In response,
the commissioner mentioned
that such issues had to do with
credibility and that he could address her in his closing argument
about what he perceived to be
contradictions.
[29] Just before the
cross-examination of the Learner commenced, the arbitrator explained
the following to the Learner: “…
what is going to
happen now, you can take a little break. Mr Satani’s lawyers
are going to ask you questions, okay? Their
job, obviously, is to
tell you that your evidence is not true. Okay? So they won’t
ask you very nice questions, maybe. But
that’s the way the
process goes. Okay? Do you understand what I’m saying?”
This explanation is obviously incorrect with regard to the
process and purpose of cross-examination. It has the potential of
either
scaring a witness or making her hostile towards the
representative. A proper explanation as to the purpose and the
process of cross-examination
would have cleared any doubt of bias on
the part of the arbitrator.
[30] In the course of the
Learner’s cross-examination, the arbitrator turned to the
appellant who had not taken the oath as
he was not yet called to
testify and the following ensued:
‘
Commissioner
:
Then wasn’t it fair that you- you should have found the
mother’s number some other way. Why you are you just calling-
did you call D.’s mother?
Mr
Satani
: They were fighting.
Commissioner
:
I understand but did you call D.’s mother?
Mr
Satani:
Yes ma’am. I
called D.’s mother and [Learner’s] mother.
Commissioner:
How did you get hold of her?
Mr
Santan
i: which one? [Learner]?
Commissioner
:
Yes.
Mr
Santani
: D.’s number. D.
gave me his parent’s number, then I take that number and I went
to the staff room and I called his
mother.
Commissioner
:
Yes, but how did you call the [Learner’s} mother?
Mr
Santani
: I didn’t call her
mother’
Commissioner
:
But it’s not very fair to call D.’s mother and she had
started the fight.
Mr
Santani
: What I am saying is
they were fighting. Now I wanted to solve that.
Commissioner:
I understand, but you don‘t call the
person who started the fight’s mother. What is the point?
Mr
Santani
: The point is that they
were fighting there and I was… (intervention).
Commissioner:
I understand all that, I’ve got you. But
now you call the boy who didn’t start the fight’s mother.
What was the
point?
Mr
Santani
: No I wanted to…
(intervention).
Commissioner:
I know what you wanted to do but you called
D.’s mother’ who didn’t even start the fight.
Mr
Santani:
the reason that I –
I just wanted to call both parents.
Commissioner
:
yes I know but you didn’t call her mother, so what the point?
Mr
Santani
: I did’t get the
number.
Commissioner
:
So why didn’t you get from the principal?
Mr
Santani:
The principal doesn’t
have.
Commissioner
:
So what’s the point of calling D.’s mother? I don’t
understand.
Mr
Santani
: I said both of them,
they must give…(intervention).
Commissioner:
Yes but they didn’t, so what was the
point of calling D.’s mother? You are not understanding my
question. Am I being….
I understand you’ve got two
children of the fighting, one of them started the fight, so you call
his mother but not her mother,
and she started the fight. What’s
the point?
Mr
Santani
: they give me numbers,
then only D. gave me the number and I said “I am going to call
your mother” and I asked the
[Learner] to bring the number.
Commissioner:
She didn’t.
Mr
Santani
: She didn’t. Then
I called her mother, D.’s mother, to say that she must came.
Commissioner
:
So she came, so what did you tell her? Somebody else started the
fight.
Mr
Santani
: She came to school and
I said that there was a fight and I was waiting for [the Learner’s
mother].
Commissioner
:
So between July and- you have this child in your class and you don’t
have the number for them but you don’t get the
number. Okay
fine.
Mr
Santani
: That’s is why
ma’am, (indistinct) the principal said we must get numbers.
That’s because there was no information.
Commissioner
:
Okay well we’ll get there. We’ll ask the principal all
that
…’
The above
cross-examination was a warning shot of what to expect during the
appellant’s actual cross-examination. Same was
also
characterised by interjections and interruptions.
[31] It needs to be
mentioned, for fear of burdening this judgment with excerpts from the
record, that the Learner’s cross-examination
was marred by the
arbitrator’s intervention as well. She dominated the process by
taking over the questions asked and in
the result diluted the essence
of the questions. It is fair to say that the representative asked far
fewer questions than the arbitrator.
She, in one instance, insisted
that appellant’s representative explains the appellant’s
case and the relevance of a
document. She allowed uncontrolled
interjections by the respondent’s representative during the
cross-examination of the Learner
and repeatedly repeated her evidence
when cross-examined.
[32] At the conclusion of
cross-examination of the Learner, appellant’s representative
was not satisfied with the arbitrator
independently calling for
statements of witnesses and people not called as witnesses. He was
also concerned as to how those statements
are going to be dealt with
and to be part of the arbitration. The arbitrator’s response
was simply:
‘
Use
it for what they are. You can’t cross-examine them. I just
asked for them. You are not going to deal with them in any
way. I’ll
just deal with them and give the weight to the evidence that I want
to. You are not going to, we are not going
to cross-examine them, so
it…
’
What is conveyed by this
response is not entirely clear. However, if the arbitrator means that
she will alone decide on what weight
to attach to those statements
without the parties being afforded an opportunity to test them
through cross-examination, is not
only surprising but a gross
irregularity.
[33] Generally, the
process adopted by the arbitrator in conducting the arbitration
appears to have been an unbalanced one, leaning
in favour of the
respondent. The transcript reveals that the respondent benefited from
advice by the arbitrator to its representative
to call the principal
to testify; that he should check the transcripts of the disciplinary
hearing to see whether the appellant’s
evidence was consistent;
that he might need S.’s evidence to address some of the
difficulties in his case which were pointed
out by the arbitrator;
that he should also call more witnesses to address ether difficulties
he was facing; indicating scepticism
regarding certain of the
evidence adduced or to be adduced by the appellant; and displaying
sympathy with the Learner. Furthermore
the arbitrator took over the
questioning of one K. who was the appellant’s witness thereby
depriving the appellant’s
representative of a proper
opportunity to examine the witness and to tender the evidence they
wished to place on record.
[34] The difficulties
pointed above are not isolated incidents that are drawn out of
context. They are to be found throughout the
entire transcript of the
proceedings. In my view, the Labour Court was too conservative to
conclude that she came close to overstepping
the mark, but she did
not. In my view, a case of overstepping the mark that is clearer than
this one is rare to find. To contend
that the arbitrator was trying
to “
smooth the pitch
” because Mr Vorster was doing
his first arbitration and appellant was represented by an attorney is
in the circumstances
of this case without merit. Firstly, there was
never an inquiry as to the background and qualifications of Mr
Vorster. Secondly,
she never informed the parties about the role she
would play to obtain their views. Thirdly, the very Mr Vorster who
never indicated
that he wanted playing field to be levelled, was
unimpressed by the conduct of the arbitrator. The record does not
even suggest
that he was incapable of representing the respondent. In
any case, she overstepped the fine line between legitimate
intervention
and assistance, amounting to advancing one party’s
case at the expense of the other. Although she intervened when the
respondent’s
representatives were also questioning the
witnesses, her intervention had the result of benefitting the
respondent. To think that
in the circumstances the arbitrator was
trying to assist for the sake of fairness is not borne by the facts
and is speculative.
[35] The Labour Court
held that appellant’s attorney neither objected to the style
with which the arbitrator conducted the
arbitration nor did he ask
for her recusal. Failure to object by a party or its legal
representative cannot render an unfair process
or conduct fair or
acceptable. The test for reasonable apprehension of bias is not
premised on whether the representative objected
to the process or
not. It is an objective test which is whether a reasonable, objective
and informed person would on the correct
facts reasonably apprehend
that the commissioner has not brought an impartial mind to bear in
the adjudication of the dispute.
In any case, it has been shown above
that an attempt by the respondent’s representative to stop the
arbitrator from her conduct
failed to yield any positive results.
[36]
In my view, the award must be reviewed and set aside because the
scope, nature and effect of the arbitrator’s interventions
and
dominance were such that she failed to
afford
the parties a fair hearing. Her conduct gave rise to a reasonable
apprehension of bias.
[37]
In
Herholdt
v Nedbank Ltd,
[13]
the Supreme Court of appeal had the following to say about the review
of arbitration awards:
‘
After
Sidumo the position in regard to reviews of CCMA arbitration awards
should have been clear. Reviews could be brought on the
unreasonableness test laid down by the Constitutional Court and the
specific grounds set out in ss 145(2)(a) and (b) of the LRA.
The
latter had not been extinguished by the Constitutional Court but were
to be ‘suffused’ with the constitutional
standard of
reasonableness.
What this meant
simply is that a ‘gross irregularity in the conduct of the
arbitration proceedings’ as envisaged by
s 145(2)(a)(ii) of the
LRA, was not confined to a situation where the arbitrator
misconceives the nature of the enquiry, but extended
to those
instances where the result was unreasonable in the sense explained in
that case
. Beyond that there was
no reason to think that their meaning had been significantly altered
provided they were viewed in the light
of the constitutional
guarantee of fair labour practices.’
[Emphasis
provided]
And further that:
‘
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 s 145(2)(a) of the
LRA. For a defect in the conduct of the proceedings to amount
to a
gross irregularity as contemplated by s 145(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 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.’
[Emphasis
provided]
[38] Mr O’Brein who
appeared on behalf of the responded correctly conceded that the
interventions by the arbitrator cannot
be defended. He went further
to state that the record made a painful read. He however urged us to
consider whether the reasonableness
of the arbitrator on the record
as it stands. In
casu
, the arbitrator committed a gross
irregularity in that she misconceived the nature of the inquiry such
that the parties were denied
a fair hearing. The outcome of her award
is therefore irrelevant because there is no material that can be said
to be properly before
the arbitrator to determine whether the outcome
is reasonable. The entire proceedings have been tainted hence the
conclusion that
the parties have been denied a fair trial. I
therefore find no merit in Mr Bosch’s submission that we should
substitute the
award with a finding that the respondent committed an
unfair labour practice. It would be appropriate under the
circumstances to
refer the matter back and if need be, be arbitrated
de novo
but before a different arbitrator. It would be
according to the requirements of the law and fairness that each party
carry its
own costs.
[39] In the result, the
following order is made:
a. The arbitration award
issued by the second respondent on 4 March 2014 is reviewed and set
aside.
b. The matter is remitted
to the third respondent for, if need be, a fresh hearing before a
commissioner other than the second respondent.
c. There is no order as
to costs.
_______________________
Tlaletsi
DJP
Waglay JP and Murphy AJA
concur in the judgment of Tlaletsi DJP.
APPEARANCES:
FOR THE APPELLANT: CS
Bosch
Instructed by M Funeka
Attorneys
FOR THE RESPONDENT:
Instructed by The State
Attorney
[1]
Sec
138(1)
The
commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the dispute
fairly and quickly, but must deal with the substantial merits of the
dispute with the minimum of legal formalities.
(2)
Subject to the discretion of the commissioner as to the appropriate
form of the proceedings, a party to the dispute may give
evidence,
call witnesses, question the witnesses of any other party, and
address concluding arguments to the commissioner.
[2]
[2009] 1 BLLR 1
((CC); (2008) 29 ILJ 2461 (CC); 2009(9) BCLR 1 (CC).
[3]
At
para 64.
[4]
In
County
Fair Foods (Pty) LTD v Theron NO and Others
(2000)
21 ILJ 2649 (LC, the following was said.
“
7…The
basic standards of proper conduct for an arbitrator are to be found
in the principles of natural justice, and in
particular the
obligation to afford the parties a fair and unbiased hearing. (See
Baxter Administrative Law at 536). These principles
have been
reinforced by the constitutional imperatives regarding fair
administrative action. (See
Carephone (Pty) Ltd v Marcus NO
(1998) 19 ILJ 1425 (LAC) at 1431I-1432A.) The core requirements of
natural justice are the need to hear both sides (
audi alteram
partem
) and the impartiality of the decision-maker (
nemo
iudex in sua causa
). (See Baxter (supra) at 536.).
8. It follows from the
above principles that a Commissioner must conduct the proceedings
before him in a fair, consistent and
even-handed manner. This means
that he must not assist, or be seen to assist, one party to the
detriment of the other. Therefore,
even though a Commissioner has
the power to conduct arbitration proceedings in a manner that the
Commissioner considers appropriate
in order to determine the dispute
fairly and quickly under the provisions of section 138(1) of the
Act, this does not give him
the power to depart from the principles
of natural justice. Thus, further, although it clearly lies within
the Commissioner’s
powers to decide whether to adopt an
inquisitorial or adversarial mode of fact finding, once this
decision has been made it ought
to be consistently applied to both
parties.”
[5]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007]
12 BLLR 1097 (CC) at paras 266-267.
[6]
President
of the Republic of South Africa and Others v SA Rugby Football Union
and Others
[1999] ZACC 9
;
1999 (4) SA 147
(CC) at para 35.
[7]
President
of the Republic of South Africa and Others v SA Rugby Football Union
and Others
at para 48. .
[8]
(2013) 34 ILJ 2347 (LC).
[9]
2011) 32 ILJ 2186 (LC).
[10]
At para 18.
[11]
(2016)
37 ILJ 465 (LC).
[12]
At
para 17.
[13]
2013 (6) SA 224
(SCA); (2013) 34 ILJ 2795 (SCA) at paras 14 and 25