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[2018] ZALAC 53
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Nkomati Joint Venture v Commissioner For Conciliation,Mediation and Arbitration and Others (JA 155/2017) [2018] ZALAC 53; (2019) 40 ILJ 819 (LAC) (12 December 2018)
IN
THE LABOUR COURT OF APPEAL SOUTH AFRICA JOHANNESBURG
Reportable
Case no: JA 155/2017
In the matter
between:
NKOMATI JOINT
VENTURE
Appellant
and
COMMISSIONER FOR
CONCILIATION,
First Respondent
MEDIATION AND
ARBITRATION
LIZELLE KRIEL WESSELS
(N.O)
Second Respondent
IAN
SMITH
Third Respondent
NATIONAL UNION OF
MINEWORKERS
Fourth
Respondent
Heard:
20 November 2018
Delivered:
12 December 2018
Summary:
Review of arbitration award – duty of commissioner to assist
unrepresented litigants - employer contending that failure
by the
commissioner to lend a helping hand and to inform it that it was
required to re-open its case and lead evidence in rebuttal
of
employee’s new version was a gross irregularity – held
that: The purpose of the helping hand principle is to prevent
a
procedural defect by ensuring that there is a full ventilation of the
dispute and a fair trial of the issues. An arbitrator may
commit a
gross irregularity, fail to fairly try the issues or render an
unreasonable award where under a duty to lend a helping
hand and then
fails to do so.
Commissioner
finding that dismissal unfair because employer failed to lead
evidence to prove that employee guilty of the charged
– court
finding that court finding commissioner ought to have intervened when
employee recanted on his plea of guilty and
directed employer to
re-open its case – the failure to lend a helping handed at that
stage amounted to a gross irregularity
in the conduct of the
arbitration proceedings, which resulted in an unreasonable outcome.
Labour Court’s judgment and award
set aside – matter
remitted to the CCMA for a determination
de
novo
before a commissioner other
than the second respondent.
Coram: Sutherland and
Jappie JJA and Murphy AJA
___________________________________________________________________
JUDGMENT
MURPHY AJA
[1]
The appellant appeals against the judgment of the Labour Court
(Moshoana J) of 19
September 2017 in which it dismissed with costs
the appellant’s application to review and set aside an
arbitration award
issued by the second respondent (“the
Commissioner”). The appeal is opposed by the third respondent
(“Smith”)
and the fourth respondent (“NUM”).
[2]
Smith was employed as a Shaft Operations Supervisor in February 2014.
His appointment
imposed certain obligations on him in terms of the
Mine Health and Safety Act
[1]
(“the MHSA”) to ensure the safety of employees under his
supervision whilst on duty at the workplace. At disciplinary
proceedings in March 2015, he was charged with four offences: i)
failure to comply with the Standard Operating Procedure: Human
Resources (“the HR SOP”) relating to overtime and standby
by not following the pre-approval check process during the
March 2015
payroll run; ii) failure to comply with the instruction that overtime
requisitions be signed by the Engineering Section:
Head of
Department, Mr Gary Strong (“Strong”) and instead
instructing an unauthorised subordinate, Mr Willie Mkhonazi
(“Mkhonazi”) to obtain related signatures from Strong;
iii) failure to adhere to the induction booking process by not
booking his subordinates for periodic induction before the 17 March
2015 deadline for such training; iv) failure to carry out
instructions from his superiors that disciplinary steps be taken
against one of his subordinates for alleged misconduct.
[3]
At the disciplinary hearing, Smith pleaded guilty to the first,
second and fourth
charges but not guilty to the third charge (failure
to adhere to the induction booking process). The chairperson of the
disciplinary
hearing found him guilty on all four charges and
dismissed him on the grounds that the charges were serious and that
he was subject
to a valid final written warning. Smith unsuccessfully
appealed against his dismissal and thereafter referred an unfair
dismissal
dispute to the Commission for Conciliation, Mediation and
Arbitration (“the CCMA”). The dispute was arbitrated
before
the Commissioner on 7 October 2015. Neither party was legally
represented at the arbitration. The appellant was represented by its
Human Resources Superintendent, Mr Tumi Sefularo (“Sefularo”)
and Smith was represented by an organiser from NUM, Mr
Dumisane
Mavhungu (“Mavhungu”). During the arbitration, Smith
stepped away from his guilty plea and for the first time
offered an
exculpatory version of his conduct. The Commissioner ultimately found
that the appellant failed to prove that the dismissal
was fair and
ordered reinstatement.
[4]
The principal issue in this matter concerns the nature and extent of
the duties of
a commissioner of the CCMA to assist legally
unrepresented parties to conduct their cases in arbitration. In its
application to
the Labour Court, the appellant sought to have the
award reviewed and set aside on two grounds: i) the Commissioner
failed to lend
a helping hand to the appellant (as contemplated in
clause 21.3 of the CCMA Guidelines) when Smith retracted his plea of
guilty
and changed his version during the arbitration; and ii) the
award was unreasonable because the Commissioner ordered Smith to be
reinstated despite the fact that he had pleaded guilty during the
disciplinary hearing and was subject to a final written warning.
[5]
Clauses 20 and 21 of the CCMA Guidelines are the source of the
so-called helping hand
principle. The provisions require an
arbitrator at the commencement of arbitration proceedings to inform
the parties (
inter
alia
)
of: i) the fact that the proceedings will be recorded; ii) any
potential conflicts of interest; iii) the rules of proceedings;
iv)
the role and powers of the arbitrator; iv) the procedure in terms of
which documents are introduced into proceedings; and v)
the
requirement that if evidence of a witness is disputed, the other
party should, at the appropriate stage, question the witness
in that
regard and put its version to the witness so that the witness has an
opportunity to respond.
[2]
Clause 21 of the CCMA Guidelines is of particular relevance. It
reads:
‘
21
The extent to which the arbitrator deals with any of these issues
should be determined by
the experience of the parties, or their
representatives, and their knowledge of CCMA procedures. If it is
evident at a subsequent
stage that a party or its representative does
not understand the nature of proceedings and that this is prejudicing
the presentation
of its case, the arbitrator should draw this to the
attention of the party. Circumstances in which it may be appropriate
for the
arbitrator to do this include if a party:
21.1
fails to lead evidence of its version under oath or affirmation;
21.2
fails to cross-examine the witnesses of the other party or fails to
puts its version to those witnesses
during cross-examination; and
21.3
changes its version of events or puts a new version during
proceedings.’
[6]
The Commissioner was evidently aware of her duties to assist the
parties and appropriately
attempted to do so. At the commencement of
the arbitration proceedings, she narrowed the issues in dispute as
follows:
‘
Okay
can I confirm the only thing in dispute and needs to be determined by
the Commission is whether there is a rule or awareness
and the breach
to these charges which is basically detailed at page 9 of the
Respondent’s bundle together in terms of the
sanction whether
or not it is harsh or whether or not in essence counselling would
have sufficed in the poor work performance versus
a written warning.
Okay is that correct parties?’
[7]
Sefularo and Mavhungu confirmed that these were the issues in
dispute. Sefularo then
proceeded to give evidence on behalf of the
appellant. He testified that Smith had pleaded guilty to the first,
second and fourth
charges during his disciplinary enquiry, was on a
final written warning for a similar offence; and had attended an
induction programme
and was therefore aware of the HR SOP. He
testified further that the appellant’s disciplinary code
provided that an employee
on a valid final written warning could be
dismissed for the commission of a similar offence. Mavhungu
thereafter cross-examined
Sefularo during which he did not challenge
or dispute the guilty plea, the valid final written or that Smith was
aware of the HR
SOP. His cross-examination focussed rather on the
argument that the appellant should have counselled Smith for poor
work performance
instead of disciplining him for misconduct. Mavhungu
also did not put Smith’s altered exculpatory version to
Sefularo. At
the end of his testimony, Sefularo closed the
appellant’s case without calling any further witnesses.
[8]
Smith then gave his evidence in chief during which he essentially
recanted his plea
of guilty to the first, second and fourth charges.
He testified that he did not fully understand the charges, had been
coerced
into pleading guilty to them and in fact had done nothing
wrong. Sefularo cross-examined Smith but limited his line of enquiry
to confirming that Smith had pleaded guilty to the three charges, was
on a valid final written warning, understood the charges and
had not
put his exculpatory version to the chairperson of his disciplinary
enquiry.
[9]
During the course of the arbitration, the Commissioner intervened on
occasion to seek
clarification. At the conclusion of Sefularo’s
evidence in chief, the Commissioner said:
‘
Okay
just before you conclude and I need to enquire into this, you have
taken me through the charges. I have noted I have not received
any
evidence in terms of the actual transgressions apart from that he
pleaded guilty to them. Are you standing by that?’
[10]
Sefularo responded that the fact that Smith had pleaded guilty
clearly showed that he accepted
that he had committed a transgression
and thus he thought it was unnecessary to go into further detail.
This was obviously wrong
in that evidence was needed to establish
both the charge on which Smith had pleaded not guilty and the
seriousness of the offences
for the purpose of determining the
appropriateness of the sanction of dismissal. The Commissioner
limited her response to this
explanation by asking merely if that was
his testimony. Mavhungu’s cross-examination was of a limited
nature, taking up a
mere four pages of the transcript, and was
confined to debating with Sefularo whether the conduct of Smith
amounted to an instance
of poor performance rather than misconduct.
At the conclusion of it, the Commissioner asked Sefularo if he
intended calling other
witnesses, in particular, two persons he had
mentioned to her off record. Sefularo replied that he was closing his
case without
calling them.
[11]
During the course of Smith’s testimony, the Commissioner asked
him if he understood why
he had pleaded guilty at the disciplinary
hearing and after listening to his exculpation remarked: “So
you pleaded guilty
but you had a reason”. Later, while Mavhungu
was exploring the issue of poor performance, Smith commented that the
charges
did not relate to poor performance. The Commissioner then
intervened as follows:
‘
Can
I note for the record that the challenge is no longer poor work
performance? It’s actually whether or not the applicant
committed the misconduct or not. So the narrowing of the issues is
now changed. The Commission will determine whether the applicant
is
guilty of the charges. Anything else?’
Mavhungu responded that
he would stop there and with that ended his leading of Smith. As
mentioned earlier, Sefularo limited his
cross-examination of Smith to
seeking concessions from Smith that he had pleaded guilty to the
three charges, was on a valid final
written warning, understood the
charges and had not put his exculpatory version to the chairperson of
his disciplinary enquiry.
[12]
In her award, the Commissioner, having concluded that Smith was aware
of the relevant rules,
dealt with the evidentiary issue as follows:
‘
In
terms of the breach; the actual misconducts……both
parties failed to address the evidence appropriately in relation
to
the proceedings before the Commission being
de
novo
. The Respondent solely relied on
that the Applicant pleaded guilty, that the Applicant had a Final
Written Warning and that the
policy…calls for a dismissal….
The Applicant’s evidence, on the other hand,
was not tested with the Respondent but informs the Commission that
although he
pleaded guilty to the misconducts he had reasons (which
on its own can be regarded as reasonable) but those reasons could not
be
weighed on a balance of probabilities; together with the
probabilities could not be tested as the Respondent also failed to
lead
any evidence surrounding the circumstances of the charges
levelled and the plea being confirmed. Consequently, the balance of
probabilities
remains weighed 50/50 and as the onus rests with the
Respondent to discharge the fairness of the dismissal, the Commission
is bound
to favour the Applicant. The Commission therefore cannot in
fairness confirm the dismissal as appropriate in the circumstances.’
[13]
On review, the appellant contended that the failure by the
Commissioner to lend a helping hand
and to inform the appellant that
it was required to re-open its case and lead evidence in rebuttal of
Smith’s new version
or defence was a gross irregularity as
contemplated in section 145(2) of the LRA and resulted in there not
being a fair trial of
the issues.
[14]
The Labour Court held that the helping hand principle did not apply
in this instance because
what had transpired did not amount to
changing a version. As for the order of reinstatement, it found that
section 193(2) of the
Labour Relations Act
[3]
(“the LRA”) required the Commissioner to order
reinstatement unless the exceptions in that section applied and that
a plea of guilty does not necessarily exclude reinstatement. The
appellant had thus failed to show that the award of the Commissioner
was so unreasonable as to warrant interference on review.
[15]
The Labour Court, while acknowledging that the helping hand principle
had been applied in various
cases,
[4]
was of the view that it is no longer applicable since the decision in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[5]
which would require the court to uphold a reasonable award even where
a helping hand was not provided when it should have been.
[16]
The Labour Court in any event found further that Smith had not
changed his plea of guilty to
the three charges whilst giving
evidence during the arbitration proceedings; and thus the
Commissioner did not commit a gross irregularity
in the conduct of
the arbitration proceedings by failing to advise the appellant that
it needed to reconsider re-opening its case.
Its conclusion was
informed by the view that arbitrations are proceedings
de
novo,
meaning that what happened at the
disciplinary hearing did not continue to the arbitration as the
process began anew with the parties
bearing different onuses
depending on the issues. The appellant was obliged to lead evidence
on the charges afresh and to prove
that Smith was guilty of
misconduct and that the misconduct, if proven, was grave enough to
warrant dismissal. On this basis, the
Labour Court distinguished
between Smith’s version at the disciplinary hearing and his
version at the arbitration hearing
and held that the appellant became
aware of the version at the arbitration hearing but failed to lead
any evidence in rebuttal.
It found that a commissioner does not carry
a duty to assist litigants on how to prosecute their cases because
that would be contrary
to the requirement of impartiality.
[17]
The appellant has raised various grounds of appeal. It is not
necessary to deal with them all.
[18]
The reasoning of the Labour Court that the
Sidumo
case dispensed with the helping hand principle is not quite correct
and may overstate the effect of the judgment. An arbitrator
may
commit a gross irregularity, fail to fairly try the issues or render
an unreasonable award where under a duty to lend a helping
hand and
then fails to do so. Where the circumstances and procedural fairness
so require, a commissioner must intervene in accordance
with the
precepts set out in the CCMA Guidelines. Not to do so will invariably
result in an unreasonable award. The purpose of
the helping hand
principle is to prevent a procedural defect by ensuring that there is
a full ventilation of the dispute and a
fair trial of the issues. A
commissioner commits a reviewable irregularity not only when the
outcome of an award is unreasonable
but also where the nature of the
enquiry has been misconceived, which may happen when the issues are
not ventilated by proper lines
of enquiry.
[19]
The Labour Court’s conclusion that Smith did not recant in his
plea of guilty is mistaken.
He obviously did. The appellant proceeded
on the basis that at least three of the charges had been established
by the evidence
at the disciplinary hearing by virtue of Smith having
admitted to them by pleading guilty. That is not to say Smith was not
at
liberty to change his version at the arbitration hearing. But, the
fact remains that the appellant was caught off guard at the
arbitration hearing as was evident from the stated assumptions of
Sefularo in presenting the appellant’s case. The question
is
what was the duty of the Commissioner in the circumstances?
[20]
At the closing of the appellant’s case, by reason of the
limited nature of the line of
cross-examination, the only issue that
appeared to be in dispute was whether the appellant should have
counselled Smith for poor
work performance instead of disciplining
him for misconduct. Mavhungu did not cross-examine Sefularo on
whether dismissal was a
fair sanction. Mavhungu also did not put
Smith’s exculpatory version to Sefularo, namely that he had not
understood the charges,
was not guilty of the charges, had pleaded
guilty to the charges for an ulterior reason and hence placed his
misconduct in dispute.
Sefularo thus was entitled to assume that
Smith was not placing his final written warning, awareness of the
rule or contravention
of the rule into dispute.
[21]
Smith then recanted on his plea of guilty in his evidence in chief.
The award provides a clear
indication that the Commissioner
understood that Smith had recanted his plea of guilty to the three
charges. Moreover, she re-defined
the issues. Once that happened, the
appellant needed to lead evidence on the merits of the charges. Yet
the Commissioner found
that Smith had placed the merits of the three
charges in dispute and that the dismissal was consequently
substantively unfair because
the appellant had failed during the
arbitration proceedings to prove that Smith was guilty of these
charges. She arrived at this
conclusion without advising the
appellant that it needed to consider re-opening its case in order to
lead evidence on the merits
of the three charges. Sefularo’s
cross-examination of Smith indisputably indicated that he mistakenly
believed that he did
not have to deal with the merits of the three
charges. It was at this stage that in fairness the Commissioner
should have applied
a helping hand and told Sefularo that the
appellant was entitled to reopen its case. The failure to do that
constituted a gross
irregularity in the conduct of the arbitration
proceedings, which resulted in an unreasonable outcome rendering the
arbitration
award reviewable in terms of section 145(2)(b)(ii) of the
LRA.
[22]
It is accordingly unnecessary to consider the other appeal grounds
dealing with the question
of sanction and the remedy of
reinstatement. The matter must be remitted to the CCMA for
consideration by a different Commissioner.
In view of the ongoing
relationship between the appellant and NUM, the appellant rightly
does not seek an order of costs.
[23]
The following orders are made:
[23.1] The appeal
is upheld and the award of the Second Respondent is set aside.
[23.2]
The dispute is remitted to the First Respondent for consideration
anew by a commissioner other than the Second Respondent.
__________________
JR Murphy
Acting Judge of Appeal
Sutherland
and Jappie JJA concur
APPEARANCES:
FOR THE
APPELLANT:
Adv MJ van As
Instructed by Cliffe
Dekker Hofmeyr Inc
FOR THE
RESPONDENT:
Adv M Makoti
Instructed
by: Mathobi Attorneys
[1]
Act 29 of 1996.
[2]
Clause 20 of the CCMA Guideline.
[3]
Act 66 of 1995.
[4]
Dinbaza
Foundries v CCMA and Others
(1999) 20 ILJ 1993 (LC) at para 87;
Bafokeng
Rasimone Platinum Mine v CCMA and Others
[2006] 7 BLLR 647
(LC) at para 12.
[5]
[2007] BLLR 1097
(CC) (
Sidumo
).