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[2001] ZALCJHB 3
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Sud Chemie SA (Pty) Ltd v Mothuloe NO and Another (JR946/01) [2001] ZALCJHB 3 (22 January 2001)
[COMMENT1]
Sneller
Verbatim/mc
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR946/01
DATE:
2001-10-22
In
the matter between
SÜD CHEMIE SA
(PTY)
LTD Applicant
and
W T
MOTHULOE
N.O 1
st
Respondent
H M
KWITSHANA 2
nd
Respondent
J
U D G M E N T
LANDMAN
J
:
Süd Chemie (Pty) Limited, dismissed its HR manager Mr Quitshana
in April 2000 after a disciplinary tribunal found him
guilty of
insubordination. An internal appeal was unsuccessful. The
parties thereafter agreed to refer the dispute
to private arbitration
in terms of the
Arbitration Act 42 of 1965
.
Mr W T Mothuloe was
appointed the arbitrator. The arbitrator delivered a lengthy
award and found that the dismissal of the
employee was procedurally
unfair and that this was the end of the inquiry. He therefore
found it unnecessary to find whether
the dismissal was substantively
unfair. He awarded the employee compensation in the amount
equivalent to 10 times his monthly
salary.
Süd Chemie has
launched an application in terms of
section 33
of the
Arbitration Act
to
set aside the award. Although the commissioner did not make
a finding on the substantive fairness of dismissal, he was clearly
of
the opinion that the offence of insubordination had been committed
and that it was a serious infraction. He also thought,
although
it was not necessary for him to decide this, that the sanction was
too severe.
The arbitration award
sets out the employee's complaint about the procedural unfairness of
his dismissal.
The notice of appeal to
the internal appeal tribunal sets out in some detail the complaints
of the employee relating to the hearing
before the disciplinary
tribunal. The employee based his appeal on the following:
"I respectfully
submit that the hearing was procedurally unfair in that the party
prosecuting the case, Mr L C Dalton, was
also the only witness
against me.
The
chairperson erred in dismissing me on the evidence which was lodged
on hearsay presented by Mr Dalton with no attempt to call
the
witnesses involved, to enable me to cross-examine them.
I
further respectfully submit that the chairman in the way in which he
conducted this matter from the outset, clearly indicated
that he was
biased in favour of the company and that the outcome of the hearing
was a foregone conclusion."
The employee was also
dissatisfied with the fairness of the appeal hearing. He set
this out in a document entitled "Reply
to written summary by
chairman of appeal hearing". He said:
"It is not, with
respect, the chairman of the appeal hearing's duty to correct the
deficiencies in leading further evidence
to clarify issues which
should have been addressed at the disciplinary hearing.
I
respectfully submit that to do so would be a gross irregularity and
would confirm my suspicions that my dismissal is a foregone
conclusion and that this appeal is merely designed to give the
impression that my dismissal was procedurally substantive and fair."
and:
"I note with
interest that the chairman of the appeal hearing has failed to
address any of the points raised in my notice of
appeal under the
question of substantive fairness and, insofar as an offence may have
been committed, the fairness of the sanction
imposed. Instead
the chairman of the appeal hearing has now raised an alleged previous
written warning which does not exist
and in respect of which no
evidence whatsoever was led in the disciplinary hearing. The
written warning to which reference
is made is no more than an office
memo which was never intended to be a written warning as alleged."
The arbitrator deals with
the question of the procedural unfairness of the dismissal and he
says in his award that Mr Dalton, the
principal witness, engaged the
assistance of Mr Louis Clarke, to preside over the disciplinary
hearing. Two charges were
preferred against the employee. Both
of them were about the same facts. He notes that Mr Dalton said
that he had made out
a charge-sheet. But the arbitrator says
that the disciplinary chairperson, Mr Clarke, testified that Mr
Dalton came to see
him, or called him to his office, discussed the
matter and that he, Mr Clarke, assisted Mr Dalton to formulate the
charges as well
as to arrange administrative matters relating to the
disciplinary hearing.
The arbitrator also notes
that the chairperson of the hearing, dismissed the objection of the
employee who was complaining about
the duplication of charges, but
thereafter Mr Dalton relented and abandoned to one charge. The
arbitrator then notes the
complaint which is set out in the
employee's documents, that Mr Dalton was the prosecutor and a single
witness.
The award traverses, in
more detail, the question of the charge-sheet. When the
arbitrator was investigating and evaluating
the evidence of Mr Dalton
and Mr Clark, he set out certain admissions which merely reinforce
what I have said above.
Then the arbitrator
finds:
"Dalton himself now
says that when the applicant breached the instruction that he had
specially given to him, the trust relationship
broke.
Consequently I asked myself this question: Was the applicant
brought to the disciplinary hearing and charged
with this one charge
of insubordination merely to create the window dressing to convict
him of that charge and the rest that proceeded
the hearing."
The arbitrator sets out
certain practice which caused him to hold this opinion and continues:
"Admittedly there is
no evidence placed before me to answer this question unequivocally in
the positive. However, there
are suggestions in the evidence
before me that the question is pregnant with substance. For
example the poor relations between
the threesome and the foregoing
factors in themselves."
The arbitrator considered
and rejected the employee's complaint that because Mr Dalton was the
sole witness, prosecutor and representative
of the company, that this
gave rise to an unfair hearing. He did this although he was not
entirely comfortable with Süd
Chemie's failure to have arranged
for a modest, yet acceptable disciplinary procedure, presumably to be
conducted by an outside
person. The arbitrator noted that the
employee's attorney had not taken the point that cross-examination
was not allowed
but the arbitrator found that this contributed to an
unfair hearing.
The arbitrator also found
the hearing to have been irregular because the chairperson guided Mr
Dalton in the formulation of the
charges and with the administrative
details pertaining to the disciplinary inquiry. This led the
arbitrator to find that
the dismissal had been procedurally unfair.
The arbitrator adopted the sanction for procedural unfairness as
contemplated
in the
Labour Relations Act 66 of 1995
and awarded the
employee compensation.
The parties chose the
arbitrator and there is nothing irregular in regard to his finding
that the disciplinary hearing was unfair,
even though he appears to
have been satisfied that the misconduct had been committed.
That of course does not preclude him
from finding that the hearing
was procedurally unfair.
On
the face of it there are no grounds to interfere with this finding.
However, Süd Chemie alleges that the arbitrator
committed
misconduct in the arbitration proceedings as he was biased against
the company.
It is correct that the
arbitrator descended into the arena. He also took at least one
point which the employee had not taken
with regard to the procedural
fairness of the dismissal. He expressed himself clearly that in
his view the dismissal was
part of a fixed resolve of the company to
rid itself of the employee; and, to some extent it, may be inferred
that he regarded
the disciplinary hearing to have been something of a
sham. Süd Chemie says that the arbitrator had decided in
advance
that the employer had not been accorded the respect which an
employer of his seniority deserved. This was a relative
consideration.
Whether the arbitrator made too much of it is
not a matter for this court to decide. The arbitrator was
following a line
of inquiry as the evidence unfolded. It was
relevant to his final decision and was not improper for him to follow
this line.
The arbitrator's
description of Ms Cadwell as "impressionable and feebleminded"
may have been harsh. Not having
heard the evidence I am not
able to say that it was actuated by ill motives. Certainly the
relationship of godfather, goddaughter
between Mr Dalton and Ms
Cadwell aroused some suspicion in the mind of the arbitrator.
Once again I cannot say that it was
improper or irregular for him to
have borne it in mind. It was important for the arbitrator to
examine the reasons for the
dismissal, including the motivation of
the company.
It does seem that the
arbitrator was sharp-tongued coming towards Ms Cadwell and Mr
Dalton. In Mr Dalton's case it may
have something to do with
the tone of his voice when he answered questions put to him by the
arbitrator. There is a hint
that this may be so on the record.
Once again I did not hear
the evidence and I cannot say that there was anything improper.
I do not wish to be understood to
say that I am in agreement with the
arbitrator in the way he reasoned and expressed himself in his
award. In certain circumstances
this may be an indication of
bias but on reading the award and the record I do not get this
impression.
Süd Chemie's
attorney who represented it at the arbitration proceedings did not
object to the arbitrator's conduct in any way.
The arbitrator's
award, his reasoning and his remarks in the award is the main
complaint company's allegation of bias. I am unable
to come to the
conclusion that the arbitrator was biased.
Süd Chemie also
relies on two other grounds to attack the award, but they do not go
to procedural unfairness and therefore
it is unnecessary to go into
them.
The result is that the
finding of procedural unfairness and that the award of compensation
is such that it cannot be disturbed.
In
the premises therefore, the application cannot succeed and it is
dismissed.
______________________
A
A Landman
Judge
of the Labour Court of South Africa
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[COMMENT1]
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