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[2002] ZALCJHB 29
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Crystallite Plastics (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR258/02) [2002] ZALCJHB 29 (19 March 2002)
[COMMENT1]
Sneller
Verbatim/JduP
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR258/02
2003.03.19
In
the matter between
CRYSTALLITE
PLASTICS (PTY)
LTD Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION AND
ARBITRATION
1
st
Respondent
ELIAS
HLONGWANE 2
nd
Respondent
CHEMICAL
ENERGY PAPER PRINTING
WOOD AND ALLIED
WORKERS UNION
3
rd
Respondent
RONNIE
NKOSI 4
th
Respondent
STANFORD
MAZIBUKO 5
th
Respondent
J
U D G M E N T
REVELAS,
J
:
1.
The fourth and fifth respondents, former employees of the applicant,
were dismissed by the applicant
following a disciplinary inquiry held
on 30 November 2000. That inquiry was chaired by the managing
director of the applicant,
Mr M E Coetzee, who is also the deponent
to the founding affidavit in support of the application in terms of
section 145
of the
Labour Relations Act, 66 of 1995
, as amended ("the
Act"), wherein the applicant seeks to set aside the award made
by the second respondent, (“the
arbitrator”), in favour
of the fourth and fifth respondents. The arbitrator found that the
dismissals of both the fourth
and fifth were both substantively and
procedurally unfairly.
2.
At the disciplinary inquiry held on
30 November 2000
the
fourth and fifth respondents faced charges against them for allegedly
having had, on various occasions, -
"
unlawfully
removed goods belonging to the applicant from its warehouse and
offered these goods for sale to various customers with
the purpose of
enriching themselves.
"
3.
The fourth and fifth respondents (to whom I shall refer to as "
Nkosi" and "Mazibuko"
respectively) were also charged
with having failed to deliver goods to -
"
designated
customers and subsequently offered these goods to potential buyers,
also to enrich themselves.
"
4.
When Nkosi and Mazibuko were dismissed, they referred their dispute
about the alleged unfair dismissal
to the first respondent, where the
dispute was eventually arbitrated by the arbitrator. The applicant
was ordered to reinstate
the fourth and fifth respondents and to pay
them compensation equal to 12 months' remuneration each.
5.
The disciplinary inquiry, which I referred to and which was held on
30 November 2000
, was preceded by another hearing, held on
3
November 2000
, where Nkosi and Mazibuko were faced with the same
charges. They were also found guilty at that hearing, but that
finding was subsequently
overturned at an appeal hearing held on
23
November 2000
, which was presided over by a Mr Dietrich of the
applicant. He found that there was no proper evidence to substantiate
a finding
of guilty. The next day,
24 November 2000
, Nkosi and
Mazibuko were notified to attend the hearing referred to, which was
held on 30 November 2000, where further evidence
was led.
6.
At this point it is noteworthy that the only evidence which was
before the chairman at the first
hearing (Coetzee) was an unsigned
statement of one of the customers who allegedly dealt with the fourth
and fifth respondents.
7.
At the second hearing (30 November 2000), the evidence presented was
four affidavits,
inter alia,
by customers of the applicant,
which supported the claims or charges levelled against the
respondents. The third and fourth respondents
were not afforded the
oppurtunity to cross-examine any of these witnesses, and I can at
this stage say, much was also conceded
by counsel on behalf of the
applicant, that these proceedings were procedurally unfair.
8.
The question whether or not an employee may be subjected to two
hearings was an issue which came
before the Labour Appeal Court in
BMW South Africa (Pty) Ltd v van der Walt
2000 (2) BLLR at
121, where Conradie JA held:
"
Whether or not a
second disciplinary inquiry may be opened against an employee would,
I consider, depend on whether it is in all
circumstances be fair to
do so. I agree with the
dicta
in
Amalgamated
Engineering Union of South Africa and Others v Carlton Paper of SA
(Pty) Ltd
1998 (9) ILJ 588 IC at 596A-D, that it is
unnecessary to ask oneself whether the principles of
autrefois
acquit
or
res judicata
ought to be
imported into Labour Law. They are public policy rules. Advantage of
finality in criminal and civil proceedings is
thought to outweigh the
harm which is made in individual cases being caused by the
application of the rule. The labour law of fairness,
and fairness
alone, is the yardstick. (See also
Botha v Gengold
1996 (4) BLLR 441
IC, and
Maliwa v Free State Consolidated
Gold Mines Operations Ltd
,
President Steyn Mine
1989 (10) ILJ 934 IC). I should make two cautionary remarks: It may
be that the second disciplinary inquiry is
ultra vires
,
the employer's disciplinary code. (See
Strydom v Busco Ltd
1997 (3) BLLR 343
CCMA at 350F-G). This might be a stumbling block.
Secondly, it would probably not be considered to be fair to hold more
than one
disciplinary inquiry, save in rather exceptional
circumstances.
"
9.
The arbitrator found that there were not any exceptional
circumstances in this matter, which necessitated
two hearings, I
agree with him. The applicants were notified that the purpose of the
second inquiry was to hear new evidence, and
that the previous
findings of. Dietrich was arrived at on the basis that the case would
be reheard, should new evidence be found.
10.
Of course the fourth and fifth respondents were not notified of
anything of the kind at the first hearing.
They were not aware of the
precondition attached to the appeal findings before the enquiry
started.
11.
In accordance with the principles set out in the
BMW
case, the
dismissal was procedurally unfair.
12.
It is trite, and that was supported by the Labour Appeal Court, that
an arbitration hearing is a hearing
de novo
. At the
arbitration hearing the evidence presented before the second hearing
was put before the arbitrator. A Miss Beatrice Goetze,
an employee of
the applicant, abc investigated the alleged offences and gave
evidence in detail about them; Mr Goetze, also gave
evidence about
the routes and the duty times of the fourth and fifth respondents,
indicating where they were on the days in question.
A Mr McKenzie
also gave evidence.
13.
The arbitrator simply did not deal with this evidence in his award.
He decided the whole matter and came to
a conclusion based on what
transpired at the two disciplinary hearings. These hearings, I have
pointed out, were procedurally unfair
but the question of substantive
fairness was never considered by the arbitrator if one has regard to
the conclusions that he came
to. It was as if such evidence was never
before him. The arbitrator did not apply his mind in this regard. If
a disciplinary inquiry
was procedurally unfair, because witnesses
were not called, that defect should be capable of being cured by an
arbitration hearing.
The converse would be unfair to an employer who,
due to a mere technicality, would be forced to continue a
relationship with employees,
it believes or knows, to have committed
fraud and theft.
14.
In my view, it would be more than fair to set the award aside and
refer it back to the CCMA, where the matter
should be arbitrated
before a different commissioner, and the issue of substantive
fairness, to be the only issue to be considered.
15.
In the circumstances I make the following order:
1. The
dismissal of the fourth and fifth respondents was procedurally
unfair.
2. The award
is set aside insofar as the question of substantive fairness was not
properly considered by the second
respondent.
3. The matter
is referred back to the Commission for Conciliation, Mediation and
Arbitration, for the question of substantive
fairness only is to be
heard by a different commissioner.
4. Each party
is to pay their own costs.
________________
E
Revelas
[COMMENT1]
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