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[2018] ZALAC 8
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NEHAWU obo Hoho v CCMA and Others (PA13/16, PR77/15) [2018] ZALAC 8; [2018] 8 BLLR 768 (LAC); (2018) 39 ILJ 1743 (LAC) (10 May 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Reportable
Case
no: PA13/16
Labour
Court case no PR77/15
In
the matter between:
NEHAWU
OBO KERR HOHO
Appellant
and
CCMA
First
Respondent
JEAN
VAN ZYDAM, N.O.
Second
Respondent
SECRETARY
OF THE EASTERN CAPE LEGISLATURE
Third Respondent
Heard:
16 November 2017
Delivered:
10 May 2018
Summary:
Appeal against a dismissal of a Review application against an
arbitration award –
initially, an award
was reviewed on the grounds that the commissioner applied the wrong
test and the matter was remitted to the
CCMA before same commissioner
to complete the matter by applying the correct test – when CCMA
dealt with the remitted matter
it was not resigned to the initial
commissioner who had resigned from the employ of the CCMA – the
matter was then presided
over by commissioner other than the person
mentioned in the court order and fresh evidence was led on sanction –
the appellant
was then dismissed - the parties had, ostensibly,
consented to the substitution of another commissioner
HELD-
the mere consent of the parties would have been insufficient to
legitimise another presiding officer being assigned - –
moreover, the initial order did not encompass the hearing of further
evidence – the taking of such further evidence inconsistent
with the initial order
HELD
-the terms of the order would have had to be varied by an application
wherein sound reasons why the initial order could not,
appropriately,
be complied with, ought to have been set out.
Accordingly,
the Labour Court’s judgment holding that the resumed hearing
before a substitute commissioner was not susceptible
to review set
aside –
Appeal
upheld.
Matter
remitted to the CCMA for the parties to comply with the initial order
or if not practicable, to seek a variation of the order
Coram:
Coppin, Sutherland JJA and Savage AJA
JUDGMENT
SUTHERLAND
JA
Introduction
[1]
The Third
Respondent, the Secretary to the Legislature of the Eastern Cape
Province employed Mr Kerr Hoho (Hoho) as a researcher.
In October
2011, Hoho was charged with misconduct related to his disruptive
behaviour towards colleagues and members of the Legislature,
abusing
e-mail communications media to do so and resulting in bringing the
Legislature into disrepute. In a disciplinary enquiry,
it was found
he had committed this misconduct. Hoho then referred an unfair
dismissal dispute to the first respondent, the Commission
for
Conciliation, Mediation and Arbitration (CCMA), which was heard by
commissioner Mzama Mama. Commissioner Mama held that the
misconduct
was proven and convicted Hoho, and thereupon dismissed him,
articulating the rationale thus:
‘
I find that ….the
unrepentant nature of [Hoho], his previous disciplinary record, any
reasonable decision maker could have
arrived at the decision of the
[employer].’
[2]
Commissioner
Mama’s decision was then taken on review before Van Niekerk J.
The finding of guilt of the misconduct was not
disturbed. However, it
was held that the test used to determine the sanction, as cited
above, demonstrated that the commissioner:
‘ …
..misconceived the
nature of the enquiry that he was obligated to undertake, in short
….[he] asked the wrong question and
in doing so applied the
wrong test’.
[1]
[3]
Van Niekerk
J stated further that:
‘
Both parties agreed that in the
event that the commissioner’s award was set aside, it should be
referred back to the same
commissioner for him to conduct the enquiry
into an appropriate sanction on the basis of the test established by
Sidumo
.
This would appear to be a pragmatic and principled way forward –
the papers in this matter [are] voluminous and this matter
has taken
some time to reach the point of a hearing in this court. The
commissioner is best placed, having made findings in relation
to
conduct, to identify all of the factors relevant to sanction,
properly assess them and come to a decision that is fair.’
[4]
Pursuant
thereto, an order was made thus:
‘
(1) The arbitration award….on
5 November 2012 … is reviewed and set aside.
(2) The matter is remitted to the
second respondent [ie commissioner Mama] to the extent that the
second respondent is directed
to determine a fair sanction for the
misconduct that he found to have been committed by Kerr Hoho.’
[5]
A point of
importance to stress is that Van Niekerk J did not endeavour to sever
the parts of the award that dealt with guilt and
sanction. In my
view, it is not obvious that it would be proper to do so in review
proceedings. Accordingly, the entire award was
set aside, not merely
the sanction.
[6]
Following
upon these events, the matter again came before the CCMA on 2 March
2015. However, Commissioner Mama did not preside over
the resumed
hearing. Instead, the matter was assigned to commissioner Jean Van
Zydam. The sole reason why this occurred is explained
in the Award of
commissioner Van Zydam:
‘…
.commissioner Mama has
since resigned as a part-time commissioner and is no longer
contracted to the CCMA. After lengthy discussions
and explanations,
the parties accepted that commissioner Mama was no longer qualified
to hear this dispute again. It was acceptable
to the parties that I
continue with the matter despite the labour Court’s
instructions.’
[7]
The resumed
proceedings then were embarked upon. Fresh evidence was presented by
both parties directed at sanction. At the conclusion
thereof, the
sanction of dismissal was held to be fair.
[8]
The
decision of commissioner Van Zydam then was taken on review before
Mahosi AJ, who dismissed the review. The main grounds of
review were
these:
8.1.
The
matter should have been referred to commissioner Mama only, and
commissioner Van Zydam ought not to have heard it.
8.2.
The
decision on sanction in the award was not rationally connected to the
“information”’ before the hearing and
certain of
the fresh evidence was ignored.
[9]
It is that
judgment which is the subject of this appeal and the same complaints
have been raised as the grounds of appeal.
[10]
The second
ground of appeal cannot be addressed because the record composed for
this Court omits the record. On a strict approach,
the appeal ought
to be struck off on that ground. We do not do so, because of the
conclusions reached on the first ground.
Evaluation:
Was it competent to have the matter heard by Commissioner Van Zydam?
[11]
It is
abundantly plain from the order granted by Van Niekerk J, and the
rationale in the judgment, cited above, that the order contemplated
only commissioner Mama hearing the matter and no other person. No
less important is that the rationale for doing so was to speedily
expedite the conclusion of the case, premised on commissioner Mama
being steeped in the facts of the case. Moreover, it is not
plausible
to read the order as contemplating further evidence being adduced;
the matter was remitted to determine a sanction based
on the existing
record. It might be an open question whether further
argument
might be heard on the record, which undoubtedly would, generically,
be of assistance in the resumed decision-making process, but
a
resumption of a hearing for more than that, is inconsistent with the
order.
[12]
A
reading of the award of commissioner Van Zydam does not supply any
indication that the voluminous record was studied. A contention
advanced on behalf of the Legislature that an inference could be
drawn that commissioner Van Zydam had some record thereto cannot
be
sustained on a proper reading of the award. Rather, the proceedings
before commissioner Van Zydam were quite distinct from the
earlier
proceedings before commissioner Mama. It can be inferred that it was
assumed by the parties that a fresh enquiry could
legitimately be
embarked upon before commissioner Van Zydam into sanction, premised
on the finding about guilt by commissioner
Mama. This fresh
enquiry
was not in compliance with the order of Van Niekerk J,
whose
order contemplated an evaluation of the existing record. Even if a
switch of the presiding officers could have been justified,
the
failure to make a decision based on the record of the earlier
proceedings is fatal to the legitimacy of these proceedings before
commissioner Van Zydam.
[13]
As to the
switch of presiding officers, the only explanation available is that
cited in the award of commissioner Van Zydam. Although
there is no
reason to doubt the veracity of that narration or the
bona
fides
of all the persons who were party to that decision, the explanation
is inadequate to justify a switch. Ostensibly, Mama is physically
available but is merely not contracted to serve. It is not suggested
that there might be a consideration present that renders it
inappropriate to appoint Mama to complete the matter. Were such a
factor present, for example, a reason to question the integrity
of
the commissioner, then it ought to have been stated. In addition, it
is by no means obvious that Mama did not remain seized
of the matter
despite his resignation, but there is no need to consider that point
in this judgment.
[14]
Furthermore,
were
there
to have been a proper reason not to appoint Mama
ad
hoc
,
the mere consent of the parties would have been insufficient to
validate another presiding officer being assigned. The terms of
the
order made by Van Niekerk J would have had to be varied by an
application, supported by all parties and setting out the reasons
why
the initial order could not, appropriately, be complied with. Such
an
application needed to be no more than a brief explanation of the
circumstances, and would have benefited from the obvious aspect
of
how another presiding officer should approach the matter being
expressly addressed so that Van Niekerk J could give due
consideration
to an appropriate variation.
[15]
As a
result, the proceedings are irreconcilable with the order of Van
Niekerk J. The appeal must be upheld and the decision in the
Labour
Court and the award of commissioner Van Zydam must be set aside.
Appropriate
further Relief
[16]
The primary
objective of the relief must be to fulfil the purpose of the order
granted by Van Niekerk J.
[17]
That
objective will be achieved by reinstating the initial order, and
directing the parties, if it is impossible to comply, to approach
Van
Niekerk J with an application to vary the order.
[18]
Given the
elapse of time, the parties should be put on terms to do so within
strict time limits.
[19]
As to
costs, the blunders seem to have been perpetrated in concert and it
is appropriate to make no orders.
The
Order
(1)
The appeal
is upheld.
(2)
The order
of the court
a
quo
is
set aside and the award is set aside.
(3)
The order
made by Van Niekerk J is reinstated.
(4)
The order
of Van Niekerk J must be complied with no less than 90 days from the
date of this judgment; in this regard, the first
respondent shall
make special arrangements to expedite a hearing.
(5)
The parties
may, if they wish, address argument at the hearing on the issue of
sanction, with reference to the record of the proceedings
before
commissioner Mama.
(6)
In the
event compliance cannot be achieved, an application to Van Niekerk J
to vary the order must be made within 60 days of the
date of this
judgment.
(7)
There is no
order as to costs.
_________________
Sutherland
JA
Sutherland
JA (with whom Coppin JA and Savage AJA concur)
APPEARANCES:
FOR
THE APPELLANT:
In person.
FOR
THE THIRD RESPONDENT:
Adv Sam Swartbooi,
Instructed by the State
attorney, East London.
[1]
Paragraph [8] of
the judgment per Van Niekerk J.