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[2006] ZALCJHB 27
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Masstores (Pty) Ltd t/a Builders Warehouse v CCMA and Others (JR412/04) [2006] ZALCJHB 27 (31 January 2006)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NUMBER: JR 412/04
IN
THE MATTER BETWEEN
MASSTORES
(PTY) LTD
APPLICANT
T
/ A BUILDERS WAREHOUSE
AND
CCMA
FIRST
RESPONDENT
STEVE
DAWSON N.O
SECOND
RESPONDENT
ARNOLDUS
M. VAN DER MERWE
THIRD
RESPONDENT
JUDGMENT
Cele
AJ
Introduction
[1]
This is an application in terms of section 145 of the Labour
relations Act 66 of 1995 to review and set aside an arbitration
award
dated 23 January 2004 issued by the second respondent while he was
acting under the auspices of the first respondent. The
second
respondent found the dismissal of the third respondent to have been
unfair and ordered the applicant to reinstate and pay
to him a
compensatory emolument.
Background
Facts
[2]
The third respondent commenced employment with the applicant on 1 May
2002, as a Land manager. He earned between R 10 000 to
R 22 000 per
month.
[3]
The applicant conducted the business of retail and wholesale in
building industry. When purchasing goods from the applicant,
the
general procedure was that buyers were required to have an original
cash slip in their possession before they could remove
goods from
applicants premise.
[4]
In terms of applicant’s disciplinary code, being under the
influence of alcohol was considered to be a very serious offence
which warranted dismissal as a sanction.
[5]
In January 2003 the third respondent was served with a notice to
attend an internal disciplinary enquiry. On 9 January 2003
the
enquiry commenced with one Dr J.J Moller as chairperson, Mr Jacques
Perie was the complainant and the third respondents appear
unrepresented. He was facing charges:
1.
Under the influence of alcohol whilst driving a company vehicle and
working under said influence during workinghours
2.
Gross negligence and / or disregard of work rules and regulations and
/ or gross misconduct resulting in potential and / or actual
loss to
the company.
3.
Serious deviation from company policy.
4.
Violation of safety rules.
5.
Behaviour that caused a disruption in the work production process.
[6]
The third respondent pleaded not guilty to the charges. He was
acquitted of the first two but was found to have committed the
last
three. Various sanctions were imposed thus:
In the
third – Counselling or training;
In the
fourth – Dismissal, if he could present an original valid
invoice the charge would be withdrawn and sanction removed
from the
outcome.
In the
fifth – Part i – Final written warning
Part
ii – Dismissal, alternatively demotion and transfer.
[7]
On 4 February 2003 the third respondent lodged an appeal. On 18
February 2003 the outcome of disciplinary hearing and the sanction,
were confirmed by one Mr Hermse who chaired the appeal hearing. The
third respondent was accordingly dismissed, on 18 February
2003. He
was aggrieved and a dismissal dispute arose between him and
applicant.
[8]
On 10 April 2003 the third respondent referred the dismissal dispute
to the first respondent for conciliation. He was granted
condonation
for the late referral of the dispute and a certificate of outcome was
issued on 14 August 2003. As the dispute could
not be resolved. The
third respondent referred the dismissal dispute for arbitration.
[9]
On 19 January 2004 the arbitration proceedings commenced with the
second respondent as the arbitrator. One Mr Duvenhage of MNU
solidarity represented the applicant.
[10]
Before the mechanical recording started, the second respondent
endeavoured, in conjunction with the parties, to resolve the
matter.
There are facts of the matter in relation to which an agreement was
reached that they were common cause. In the main, such
facts form
part of the background facts herein.
[11]
The matter was referred to arbitration for the determination of both
substantive and procedural fairness of the dismissal.
The dismissal
was not in dispute. Mr Duvenhage then withdraw the procedural
unfairness ground of the dismissal. The applicant was
then called
upon to prove that the dismissal of the third respondent was
substantively fair.
[12]
The applicant called two witnesses, Mr Hermse who was the chairman in
the internal appeal hearing and one Mr Dlamini. In respect
of each of
the witnesses of the applicant, the second respondent indicated that
their evidence was irrelevant. That of Mr Harmse,
he ruled to be
irrelevant as the procedural ground of dismissal was withdrawn by the
third respondent at the beginning of arbitration
proceedings. He
ruled the evidence of Mr Dlamini to be inadmissible and said Mr
Dlamini did not work with the third respondent
nor was Dlamini privy
to any training which the third respondent would have received from
the applicant. The rulings made by the
second respondent resulted in
there being numerous arguments between him, Mr Boswell and Mr Harmse.
After the evidence of these
witnesses the applicant applied for a
postponement of the matter but it was refused by the second
respondent.
[13]
The applicant indicated to the second respondent that it had more
witnesses to call but that none of them were present at the
arbitration proceedings and still asked for the matter to be
postponed and indicated that it was in any event at the end of the
day. The second respondent informed the parties that he would work
until he would complete the matter, even if it meant working
at
night. It was then about 16h45. When the applicant could not call any
further witnesses, the second respondent asked if Mr Boswell
was
closing his case. Mr Boswell said that he was not closing his case.
Mr Boswell asked to be allowed to go to Pretoria to pick
up his
children from school. The second respondent said that no time was set
at which the matter would be completed. He indicated
that he had
cases for which he sat until 19h00 and even 20h00 because matters had
required to be finished.
[14]
Mr Boswell indicated to the second respondent that the applicant came
for the arbitration proceedings with the hope that there
would be a
pre – arbitration hearing. He said that the applicant did not
know what case to meet and needed the pre –
arbitration
proceedings to be held. He was still asking for the matter to be
postponed. Mr Boswell indicated that the applicant
was faced with a
difficulty of having had to attend to two arbitration proceedings on
one day. One had been held in Pretoria in
the morning and the second
was the one in progress. The second respondent then refused the
application for a postponement and he
indicated that he would not
even hear the other side. When Mr Boswell was unable to call the next
witness, the second respondent
closed the case of the applicant. Mr
Boswell recorded his objection to his case being closed.
[15]
The third respondent was then called and he testified. The first
charge dealt with was of the processing of a cash refund.
The third
respondent said that he was not the person who processed it but that
one Mr Moosa Sabier had done it. The second charge
related to the
removal of a braai stand from the shop premises. The third respondent
admitted having removed it but said that he
had paid for it with his
money. He said that it was in June when he purchased the braai stand.
In July there was an allegation
that he had stolen the braai stand.
He then brought the original slip and showed it to the shop manager
and that such production
was done in the presence of a securing
guard. He said that the slip had been signed by the security guard
who confirmed such signing.
He said that he had made two copies of
the original and kept them. He said that the branch manager had kept
the original slip and
had apologised to him for the incident. He said
further that the branch manager had called one Mr Mamakwe who was the
person that
had lodged a complainant. The head of security and the
Human Resources Director were also called. It was in their presence
that
he produced the slip and it was on 17 July 2002.
[16]
The third respondent said that it was three weeks later that he was
called by a financial manager of the applicant and was
again
confronted on exactly the same issue of the braai stand. He said that
he produced a copy of the slip as the original was
still with the
branch manager. He said that he was again confronted on the same
matter for the third time and thought that was
then about six months
later, December.
[17]
The third respondent produced a copy of the till slip (it was
referred to as an invoice). Initially Mr Boswell objected to
the
production and filing of that slip on the basis that the slip could
pertain to any one of the braai stands. Once it was shown
that the
invoice number on the slip corresponded with the invoice number in
the charge sheet, Mr Boswell withdrew his objection
and said that it
was an invoice the third respondent had been asked to produce. He
agreed further, to the slip being handed in
by consent. The slip was
received as an exhibit.
[18]
The charge which was then dealt with related to the removal of timber
on 12 November 2002 from the shop yard to the premises
of a customer.
The evidence of the third respondent was that he was authorised by a
branch manager, one Mr Johnny Kruger. He said
that there was an
invoice from the construction customer for the timber in question.
[19]
The last charge was of driving the company vehicle whilst he was
drunk or under the influence of liquor. He denied it and said
that he
was not subjected to any alcohol testing on 12 November 2002, a day
it was said he committed the offence.
[20]
Before Mr Boswell began to cross – examine the third
respondent, Mr Boswell asked for the matter to stand down for a
while
so that he could make a telephone call to make arrangements for his
children. The stand down was granted. On resumption,
Mr Boswell put
it on record that the applicant was contesting the validity of the
cash register slip which had been handed in.
He asked the second
respondent to make a ruling on that. An argument ensued on this
aspect between Mr Boswell and the second respondent.
Mr Boswell was
saying that he was withdrawing his consent to the handing in of the
cash slip and the second respondent was saying,
it was then a matter
for arguments later and he linked the withdrawal of consent to a
stand down to make a telephone call, to which
link Mr Boswell took
ambridge.
[21]
After the case of the third respondent was closed, Mr Boswell
indicated that he was not ready to address the third respondent
on
the merits of the case and he requested that written submissions be
handed in. Mr Duvenhage indicated his readiness. The application
for
handing in written submissions was refused. An application for the
matter to stand down for a few minutes to prepare was however
granted.
The
award
[22]
The second respondent found that the two witnesses called by the
applicant were of no help in that they did not testify about
the
commission of the offences in question. He found that the only
evidence led before him regarding the commission of the alleged
offences was the evidence of the third respondent who stated that he
did not commit any of the charges that were set out in the
charge
sheet. The second respondent found that the explanation by the third
respondent regarding charges against him was more than
satisfactory.
He found that the applicant had failed to dismiss the onus imposed on
it in terms of section 192 of the Act and he
found the dismissal of
the third respondent to have been unfair.
[23]
The second respondent then ordered the applicant to reinstate the
third respondent from the date of dismissal, on terms and
conditions
not less favourable than those that existed prior to the third
respondent’s dismissal. Further, he ordered the
applicant to
pay the third respondent R 264 000 in lieu of salary that the third
respondent had lost as a result of the dismissal.
[24]
It is this award which the applicant seeks to have reviewed and set
aside.
Grounds
for Review
[25]
Three grounds for review have been identified by the applicant for
the
review of the award. There are:
1.
Misconduct in relation to duties as an arbitrator,
2.
Gross irregularity in the conduct of arbitration proceedings.
3. The
absence of a rational objective basis justifying the connection made
by the commissioner between the material properly available
to him
and the conclusion he arrived.
[26]
The applicant identified three circumstances in respect of which the
applicant alleges that the second respondent’s award
is
reviewable. They are:
1. A
refusal by the second respondent to grant the applicant a
postponement of the arbitration proceedings;
2.
Bias on the part of the second respondent.
3. The
compensatory orders made by the second respondent.
Analysis:
[27]
In terms of rule 7(A) (8) (a) of the rules of Court, the applicant
served and filed its supplementary affidavit on 30 September
2004.
The third respondent had 10 days within which to serve and file his
answering affidavit but only did so on 15 October 2004.
He has asked
that such one day late serving and filing be condoned and the
applicant has indicated that it is not opposed to the
application
being granted. Having applied my mind to the applicable legal
principles, the application is granted.
[28]
The applicant’s detailed reference to another disciplinary
enquiry which did not form the subject matter of the present
dispute
is irrelevant and is thus struck out.
[29]
Section 145 of the Act states that:
“
(1)
Any party to a
dispute
who alleges a defect in any arbitration proceedings under the
auspices of the Commission may apply to the Labour Court for an order
setting aside the arbitration award-
(a)
within six weeks of the date that the award
was served on the applicant, unless the alleged defect
involves the
commission of an offence referred to in part 1 to 4, or section 17,
20 or 21(in so far as it relates to the aforementioned
offences) of
Chapter 2 of the
Prevention and Combating of Corrupt Activities Act,
2004
; or
(b)
if the alleged defect involves an offence referred
to in paragraph (a) within six weeks of the date that
the applicant
discovers such offence.
(2)
A defect referred to in section (1), means –
(a)
that the commissioner –
(i)
committed misconduct in relation
to the ,duties of the commissioner as an arbitrator;
(ii) committed
a gross irregularity in the conduct of the arbitration proceedings;
or
(iii) exceeded
the commissioner’s powers; or
(b)
that an
award has been improperly obtained”.
Misconduct
[30]
The case of
Reunert Industries (Pty) Ltd t/a Reutech Defence
Industries v Naiker and others (1997) 18 ILJ 1393 (LC
) caused
Landman J to have to examine the meaning of misconduct. His answer to
this vexed question was given in ten points. Three
of the ten points
are:
“
(5)
for there to be misconduct there must have been some 'wrongful or
improper conduct on the part of the commissioner. See Dickenson’s
case at 176. Some
personal
turpitude is required.
……………
..
(7)
The ordinary meaning of misconduct will not
embrace
a
bona fide
mistake of law or fact. See
Dickenson’s
case at 176
……………
..
(9) A
gross mistake of law or fact may be indicative
of
misconduct in the sense described above….”
[31]
In
Stocks Civic Engineering (Pty) Ltd v
Rip No and another
(2002)
23 ILJ (LAC)
Zondo JP, in his judgment,
said that the case law on misconduct by an arbitrator evidences
tension between the requirements of
speed and finality in arbitration
(and therefore a minimum of interference by the Courts) and the
requirements of fairness (which
is a public policy consideration and
also the supposition upon which the arbitrators appointment is based.
Gross
irregularity
[32]
An irregularity in this sense will inevitably relate to the procedure
adopted in the course of the proceedings either of a
tribunal, a
Court or in the arbitration proceedings. It will therefore not mean
or relate to an incorrect judgment. It refers not
to the result but
rather to the method of a trial. The consequence attendant to there
being a gross irregularity is that the aggrieved
party will have been
prevented from having his or her case fully and fairly determined.
See
Ellis v Morgen ;
Ellies v Desai
1909 TS 576
at 581 and
Goldfields Investments Ltd
and another v City Council of Johannesburg and another
1938 TPD 551
at 560.
Justifiability
and rationality
[33]
When dealing with the standard of review, Froneman DJP (as he was) in
Care phone (Pty) Ltd v Marcus NO and
others (1998) 19 ILJ 1425 (LAC)
had
this to say:
“
[30]
It appears from a number of High Courts that the effect of
particularly, the administrative justice section in the Bill of
Rights is seen as broadening the scope of Judicial review of
administrative action (See Tseleng v Chairman, unemployment Board
and
another (1995)16 ILJ 830 (T)…
[31]
The peg on which the extended scope of review has been hung is the
constitutional provision that administrative action must
be
justifiable in relation to the reasons given for it
(S 33
and item 23
(b) of schedule to the constitution). This provision introduces a
requirement of rationality in the merit or outcome
of the
administrative decision. This goes beyond mere procedural impropriety
as a ground for review, or irrationality only as evidence
of
procedural impropriety. But it would be wrong to read into this
section an attempt to abolish the distinction between review
and
appeal”.
A
refusal to postpone arbitration proceedings.
[34]
I have been able to glean from the record of pleadings that, at the
commencement of the arbitration proceedings, the applicant
applied,
albeit with no success, for the proceedings to be postponed. This
would have taken place before the proceedings were mechanically
recorded as the transcribed record of the proceedings bears no
reference to such an application.
[35]
There would have been discussions between the parties and in the
presence of the second respondent for the second respondent
to have
began the mechanically recorded proceedings by recording issues which
he found to have been common cause between the parties.
In doing so,
he however made no reference at all to there having been an
application for the postponement of the arbitration proceedings
as at
that stage.
[36]
The view I have of the second leg to this application for
postponement compels me to say no more in relation to the first leg.
[37]
Once two witnesses of the applicant had testified, the applicant
indicated to the second respondent that it had a number of
witnesses
that were crucial to its case who were however not present at the
hearing. It was also indicated to the second respondent
that the
applicant would not close its case at that stage. The second
respondent reminded the applicant’s representative
that he had
told them that they would proceed until the matter would be finished.
The applicant’s representative pointed
out that he had to pick
up his children at school in Pretoria. The second respondent
indicated unequivocally that he would proceed
with the matter and he
said that he had been sitting with matters until 19:00, 20:00 because
matters required to be finished. The
time was then around 16:45,
according to the second respondent, as they could not even agree on
it.
[38]
The applicant’s representative said that the applicant had
asked for pre – arbitration hearing so that they would
know how
to prepare for the case. He said that they had other matters pending
in Pretoria (referring to other CCMA matter which
had been schedule
for 19, 20 and 21 January 2004 and had already been postponed on that
very day for applicant to attend to this
case in Johannesburg).
[39]
A discussion ensued between the second respondent and the applicant’s
representative. The second respondent then asked
if the applicant’s
representative was making an application for a postponement and an
answer in the affirmative was given.
The following exchanges then
ensued –
“
Commissioner
:
I am not going to hear the other side, the Application is refused.
Are you going to call your next witness?
Mr
Boswell
: Mr Arbitrator we would
like to call our next
…
..
(Intervenes)
Commissioner
:
Please call them. If they are not here, I will close your case for
you. I am going to record now that your witness is not present
and
that you are unable to call them and that I have ruled, I have
refused the application for an adjournment and that I am proceeding
with the matter.
Mr
Boswell:
As it (indistinct) we object
to that the (indistinct) you want to close our case
(indistinct).
Case
for the respondent.”
[40]
I have no qualms in finding that the attitude of the applicant of
coming to the arbitration proceedings with the expectation
that it
would necessarily be granted an indulgence of the hearing being
postponed was unreasonable in the circumstances. The applicant
was
faced with having to attend two arbitration proceedings of the CCMA
in Pretoria and in Johannesburg on 19 January 2004. The
proceedings
in Johannesburg, and for this case, were scheduled to commence at
14H00. The reason why the applicant did not make
arrangements for
witnesses for this matter have remained illusive throughout these
proceedings.
[41]
However, once the applicant had lodged an application for the
proceedings to be postponed it behoved of the second respondent
to
have acted in compliance with the duties of a commissioner. He had
then to listen to the merits and demerits of the application
from
both parties; he had to apply his mind to the issues at hand and had
to consider among others –
§
Whether it was in the interest of justice
and fairness that the postponement be granted or refused.
§
What prejudice was likely to be suffered by
either party should the postponement be granted or refused;
§
Whether such prejudice could be cured by an
appropriate order
§
Whether the application was
bona
fide
or a mere tactical manoeuvre
See
Petzer v Independent Broadcasting
Authority (2000) 5 LLD 409 (LC) at 410
,
per Molahleli AJ.
[42]
In the transcript of the proceedings it is manifestly clear that the
second respondent would not hear the reaction of the third
respondent
to the application for postponement. Yet in the award he states –
“
The
representative of or the applicant (the third respondent
in
this case) opposed the said application on the basis that the
applicant would suffer prejudice if the matter was postponed because
it was nearly a year since applicant had
been
dismissed from employment and it was in the interest
of
all parties concerned that this matter was brought to
finality”.
[43]
There never was an opposition to this application by the third
respondent. To the extent that the second respondent has made
an
error of fact, he has misdirected himself. It might very well be so
that the granting of the application would result in the
third
respondent suffering prejudice in that the resolution of the
dismissal dispute would be delayed. It was incumbent on the
second
respondent to investigate the circumstances of such prejudice and to
decide whether or not it could not be cured by an appropriate
order.
The second respondent relinquished this important duty as a
commissioner and thus committed a gross irregularity. If he
had
conducted this investigative task, he might have found that the third
respondent might have been content with a costs order
in his favour.
It has to be borne in mind that any delay in the matter not having
been heard earlier was due only to the fault
of the third respondent.
[44]
The reason which the second respondent has given in his award for
refusing to grant the postponement of the arbitration proceedings
is
not supported by the evidential material which was available to him.
This must have eluded Mr Branford who appeared for the
third
respondent in his opposition to this application. The unavailability
of further witness of the applicant can not reasonably
be
justification for a commissioner to abandon the duties given to him
by law. Consequently, there is no rational objective basis
justifying
the connection made by the second respondent between the material
properly available to him and the conclusion he eventually
arrived
at. I need look no further to review and set aside this arbitration
award.
[45]
The demand of law and fairness of this case inform me that the costs
should not necessarily follow the results.
ORDER
1.
The arbitration award dated 23 January 2004 issued by commissioner
Steve Dawson in case number G 13265 – 03 is reviewed
and set
aside.
2.
The matter is remitted to the CCMA for a
de
novo
hearing before another
commissioner.
3.
No costs order is made.
CELE
AJ
_______________________
Date
of hearing
: 27 September 2004
Applicant
Counsel :
Adv L.M Malan
Instructing
Attorneys :
Bowman Gilfillan Inc
Respondent’s
Counsel : Adv
D.J Branford
Instructing
Attorneys
: Serfontein Viljoen & Swart Attorneys
Date
of Judgment
: 31
January 2006