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[2003] ZALCJHB 16
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Rainbow Drivers and Crews (Pty) Ltd v Commission of Conciliation Mediation Arbitration and Others (JR531/01) [2003] ZALCJHB 16 (31 January 2003)
NOT
REPORTABLE
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE NO. JR 531/01
In
the matter between :
RAINBOW
DRIVERS & CREWS (PTY) LTD
Applicant
and
THE
COMMISSION OF CONCILIATION
MEDIATION
AND
ARBITRATION
First
Respondent
PROFESSOR
MZUNGULU
MTHOMBENI
Second
Respondent
QWAKA
VELILE
ORCHARD
Third
Respondent
JUDGMENT
PILLEMER,
AJ:
[1]
The Applicant dismissed the Third Respondent from its employment.
He challenged that dismissal as being unfair utilising
the procedures
available to him in the
Labour Relations Act, 1995
. The matter
proceeded as an arbitration under the auspices of the First
Respondent. The Second Respondent, a Commissioner
employed by Second
Respondent was appointed arbitrator. He heard the evidence of
two witnesses, one called by the Applicant
and the Third Respondent
testified in support of his case.
[2]
The transcript of the record of the hearing contains numerous
portions where what was said was indistinct and the transcriber
captures this by the use of the word “indistinct” in
brackets. There are also times when the transcriber cannot
hear
what is being said because two people are speaking at the same time
and a note is made on the transcript to record this difficulty.
In
spite of these problems with the transcript it nonetheless presents a
reasonably full picture of what occurred at the arbitration
and of
the evidence that was given at the hearing.
[3]
The managing director of the Applicant, a Mr Nkosi, conducted the
case on behalf of the Applicant. He did not do a particularly
good job. He was inept and failed to lead evidence central to
his case. In fact he was probably the most important
witness
for the Respondent, if evidence was to be lead to contradict the
version of the Third Respondent, yet he elected not to
testify.
The witness he did call did not take the matter particularly far and
did not deal at all with the allegations of
procedural unfairness. It
was an aspect that ought to have been dealt with fully because the
Third Respondent contended that the
disciplinary process was a sham.
He testified that a person who was described as a partner of Mr
Nkosi, a Mr Skinner, had only
nominally presided. In fact according
to him Mr Nkosi took control of the proceedings and in effect
dismissed him. He was the witness,
prosecutor and judge
notwithstanding Mr Skinner’s presence. Without any
evidence to gainsay this version, which on
the performance of Nkosi
at the arbitration was not improbable, the arbitrator could make no
other finding on the evidence before
him than that the dismissal was
unfair. He also decided that the deterioration in the
employment relationship was such that
it was inappropriate to order
reinstatement and awarded compensation.
[4]
Although there are challenges to the reasoning of the arbitrator on
the basis that some of the factual conclusions to which
he came
cannot properly be deduced from evidence on the record, I am of the
opinion that this feature is of little moment.
I take that view
because the record, as I indicated, is not 100% complete with the
result that there may well have been evidence
in the portions that
were indistinct to justify the factual findings in respect of which
the complaint has been made. These complaints
were not set out in the
founding papers and were simply argued on the basis of the record.
More importantly however I am satisfied
that on the evidence that was
given the finding to which the arbitrator came was the correct one
and, in those circumstances, even
if legitimate criticisms of his
reasoning or factual findings can be made they are of no relevance in
the final outcome. On the
evidence before him he came to the correct
legal conclusion, so even if his reasoning is faulty, the award ought
not to be set
aside on that ground alone.
[5] In
the main argument advanced by the Applicant’s counsel he relied
upon the constitutional right to fair labour practices
and upon
section 138
of the
Labour Relations Act which
provides that the
commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to
determine the dispute
fairly and quickly and must deal with the substantial merits of the
dispute with the minimum of legal formalities.
It was argued
that the commissioner was too preoccupied with dealing with the
matter quickly with the result that this impacted
upon his duty to do
so fairly. There are two passages in the transcript which
reveal that the commissioner was at times impatient
with Mr Nkosi’s
questioning and pointed out to him that he had another arbitration
later in the day and would like to complete
the present one
expeditiously. In my opinion those comments are of little
moment and do not amount to a reviewable irregularity.
What was
pressed in argument was that in his zeal to ensure that the matter
moved quickly the arbitrator fell short of his duty
to advise
unrepresented parties of the consequence of the failure to lead
evidence on matters where there was direct evidence which
they may be
able to contradict. This it was argued rendered the proceedings
unfair and constituted misconduct in the conduct of
the proceedings
making the award reviewable.
[6]
The point in general terms is a good one. There obviously is a
duty upon commissioners to assist laymen in the conduct
of their
arbitrations. The court has on a number of occasions set aside
awards where this has not occurred. The following
examples are
illustrative. In
Dimbaza
Foundries Limited v CCMA and Others
(1999) 20 ILJ 1763(LC), it was held that a commissioner is obliged to
guide the process and to be alert to a layman representative’s
lack of legal training. The commissioner’s failure to postpone
the matter
mero moto
so as to enable the employer to produce the necessary witnesses and
his consequent findings on the limited evidence presented
to him was
found to constitute a reviewable defect. In
Consolidated
Wire Industries Proprietary Limited the CCMA and Others
[1999]
10 BLLR 1025
(LC), it was held that where laymen are involved the
commissioner must take charge of the proceedings when a version is
changed
or a new one suddenly presented and cannot simply rely on the
parties to realise what is expected of them unaided. In
Char
Technology Proprietary Limited v Nnisi and Others
(2000) 7 BLLR778 (LC) a commissioner was found to be obliged to
explain proceedings, rules of evidence and the manner of dealing
with
documents to the parties at the outset. In
East
Cape Agricultural Co-operative v Du Plessis and Others
(2000) 9 BLLR1027 (LC) it was held that a commissioner cannot find
against a party on a point not canvassed during the hearing,
that he
is obliged to call for documentation when it appears material,
explain the procedure he intends to follow and narrow and
explain the
issues at the outset of proceedings. In
DB
Thermal Proprietary Limited v CCMA and Others
(2000)
10 BLLR1163 (LC) it was held that the commissioner is obliged to
advise lay clients on the evidence that should be led.
In
Scholtz v Commissioner Masekono and
Others
(2000) 21 ILJ1854 (LC)
it was held that a commissioner is obliged to inform parties about
his discretion to allow legal representation
about the status of a
written statement and about the influence that he could draw from the
failure to give oral testimony.
[7]
The Applicant relies upon misconduct by the commissioner and it bears
the
onus
of
establishing that misconduct. While the record may in an
appropriate case be all that is required because it speaks for
itself, generally, the averments should be made expressly and clearly
in the founding papers. In that way the commissioner is afforded
an
opportunity of dealing with the criticism of his conduct and is
afforded a proper opportunity to set out factual matters which
may
well be relevant. In this case for instance if the complaints that
were made in argument had also been clearly set out in the
affidavits
the arbitrator would have been able to explain what it is that he did
if anything, in advising the parties of the process
and the need to
give evidence or that he satisfied himself that that had access to
such advice and assistance. It may well be that
there were matters
which were canvassed before the matter was formally recorded, which
as I understand it, often occurs before
the matter proceeds formally
and on record. If the allegations of misconduct by the arbitrator are
not made in the founding affidavit
then it is generally not open to a
party to rely on acts of misconduct which do not emerge plainly from
the record itself. In this
case the founding affidavit only makes the
complaint in the following terms:-
“
Mr
Skinner did not give evidence because I did not realise that his
evidence was necessary. It should have
become apparent to the Second Respondent
that the evidence of this witness was relevant. In order to
support the Applicant’s
defence it became apparent to me during
the proceedings that I required the attendance of Mr Skinner. I
applied for a postponement
during the proceedings but the Second
Respondent refused this. I submit the Applicant was severely
prejudiced in its
defence
of the allegations because of the failure of the Second Respondent to
permit the Applicant to properly present its case”.
There
is nothing on the record which indicates that a postponement was
sought. It is most improbable on a reading of the record
as a whole,
even taking into account that there are portions that are indistinct
that such an application was in fact made. So
while it is true that
the record contains passages that are indistinct, the complaint as
set out in the founding affidavit contradicts
the approach adopted in
argument. In argument it was submitted that the commissioner
had a duty to explain to the Applicant
that it was essential for the
Applicant to call Mr Skinner as a witness and for Mr Nkosi himself to
testify. On the affidavit
it is alleged that the misconduct
arose as a result of a so-called refusal to postpone the matter in
order to enable Mr Nkosi to
call further witnesses. The
contradiction is obvious - if Nkosi had indeed applied for leave to
call further witnesses he
would have appreciated that it was
necessary to do so and needed no explanation. I assume that the
contention that a postponement
was refused was not persisted in
during argument because that is not supported by the record at all
which, if anything, suggests
that Nkosi was unsure of whether or not
he should call further witnesses, but not that he was refused a
postponement.
[8] An
Applicant who alleges relatively serious misconduct against a
commissioner should do so expressly and clearly so that the
commissioner is in a position to deal with those criticisms. In
my view this was not done in the present case. I am
not
satisfied that the Applicant has established that the commissioner
was guilty of an irregularity in the conduct of the proceedings
and,
as I indicated above, the conclusion to which he came on the evidence
before him was in my view the correct one.
[9] In
those circumstances I take the view that the review should fail.
The application is dismissed with costs.
____________________
PILLEMER,
AJ
Date of
hearing:
23 January 2003
Date of
Judgment:
31 January 2003.
For
Applicant:
Allardice and Partners.
For
Respondent:
Mashego Attorneys