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[2006] ZALCJHB 19
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Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation Mediation And Arbitration and Others (JR782/05) [2006] ZALCJHB 19 (13 March 2006)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO. JR 782/05
In
the matter between:
AVRIL
ELIZABETH HOME
FOR
THE
MENTALLY
HANDICAPPED
Applicant
and
THE COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
BUTI
ZWANE
N.O.
Second
Respondent
NEHAWU
Third
Respondent
JULIA
MVUMVU
Fourth
Respondent
JUDGMENT
A
VAN NIEKERK AJ
This
is an application in terms of section 145 of the Labour Relations
Act, 66 of 1995 (“the LRA”) to review and set
aside an
arbitration award made by the Second Respondent (“the
commissioner”). The commissioner found that the
Applicant
had unfairly dismissed the Fourth Respondent and ordered her
reinstatement.
The
Applicant seeks to review and set aside the award on the basis that:
1
the commissioner failed to apply his mind to
the evidence before him;
2
the commissioner applied
the incorrect test in weighing the evidence
and assessing the probabilities;
3
the commissioner failed and/or refused to consider
the Applicant’s
evidence and submissions on what an appropriate remedy would be if
the Fourth Respondent’s dismissal
was found to be unfair; and
4
the commissioner reached an irrational and
unjustifiable conclusion
in relation to procedural fairness, and committed a gross
irregularity in failing to allow the Applicant’s
witness to
testify in relation to this issue.
Prior
to considering the merits of the Applicant’s submissions, some
background to the case is appropriate. The Applicant
offers a
facility to care for approximately 150 intellectually and physically
disabled residents as well as a number of day visitors.
The Fourth
Respondent ('Mvumvu') was employed in 1998 as a supervisor. In that
capacity, Mvumvu was responsible for taking charge
of and properly
organising the daily operation of a section assigned to her, and for
the supervision, training and discipline of
care workers assigned to
her. Mvumvu’s duties also included the offloading and
stacking of donated jumble after office
working hours and at
weekends. It was in respect of this latter duty that she
was found guilty of misconduct and dismissed.
The charges of
misconduct brought against Mvumvu related to an incident that
occurred in the administration office on 18 April
2004. Mvumvu
was alleged to have been an accomplice to a theft that occurred in
the office late that afternoon in that she
watched Ms Patience
Letselebe, the main home supervisor, wilfully removing donated jumble
from the administration office.
A
disciplinary hearing was held on 20 May 2004. On 21 May 2004, the
chairperson found Mvumvu guilty of the charge against her and
imposed
a sanction of summary dismissal. An appeal hearing took place
on 4 June 2004. The chairperson of that hearing
upheld the
finding and sanction imposed at the disciplinary hearing.
Mvumvu
referred a dispute concerning her dismissal to the CCMA. An
arbitration hearing was convened on 8 February 2005 at
the CCMA,
Johannesburg, before the commissioner. After hearing the evidence of
both parties, the commissioner issued an award in
which he found that
Mvumvu's dismissal was substantively and procedurally unfair, and
ordered her reinstatement.
The
evidence before the commissioner
At the
arbitration hearing, the Applicant produced as evidence a video tape
recording that clearly shows another employee, Ms Patience
Letselebe,
stealing a plastic bag, which contained a pair of boots. This
recording is the primary source of evidence on which the
Applicant
relied to sustain Mvumvu’s dismissal. The submission before the
commissioner was to the effect that the inference
could be drawn from
the video footage was that Mvumvu was also involved in the theft.
This inference was sought to be drawn on
the basis that Mvumvu could
be seen speaking to Letselebe, that she was facing Letselebe when the
theft took place, and that Mvumvu’s
body language during the
course of the incident gave credence to her involvement in the theft.
Mvumvu
denied any involvement in the theft. She testified that she had not
seen Letselebe remove the boots, since she had had her
back to
Letselebe at the time the theft occurred.
The
commissioner's award
The
commissioner made the following material findings on the evidence
adduced at the arbitration hearing:
1
the video footage was not conclusive in supporting the Applicant’s
version because Mvumvu’s face could not be seen on the video
recording and her movements were not conclusive;
2
in regard to the footage showing Letselebe and Mvumvu speaking to
each other
before Letselebe stole the boots, the inference that the
two were speaking about stealing the plastic bag in which the boots
were
contained was not the "only inference" to be drawn.
The commissioner states at one point in the award "
There
is no evidence that the two were prohibited in talking to each other,
and that since they did, the only inference to be drawn
is that they
were planning to steal the plastic bag.
(sic)
".
In a later passage, the commissioner
states "
I find no reason why I
should find talking to each other between the Applicant and Patience
irregular or constituting a plan to
steal. It may be that that was
the case if an adverse inference is drawn, however the fact that they
could have been talking about
stealing the plastic bag is not the
only inference that could be drawn
(sic)”.
3
Mvumvu later found and returned a bag containing the stolen shoes.
This
demonstrates that she could not have intended to steal them.
The
commissioner then concluded that not only was Mvumvu's version the
more probable, but that she could not have been an accomplice
to
theft because no theft had occurred. He states
"
In
the circumstances I find the Applicant’s version more probable
than that of the Respondent, in that she did not see Patience
kicking
the plastic bag. Thereby could not have been accomplice to the
alleged theft. There is no evidence that indeed the theft
in question
occurred, consequently in absence of theft, there is no justification
for the allegation of accomplice against the
Applicant
(sic)
.”
This is a remarkable
conclusion, given that the existence of an act of theft perpetrated
by Letselebe and clearly visible on the
video recording was never in
dispute.
Evidence
was also led during the arbitration relating to the procedure adopted
prior to Mvumvu's dismissal. It was submitted on
Mvumvu's behalf that
her dismissal was procedurally unfair in that the chairperson of the
disciplinary hearing, Ms Kathleen
Jooste, was a subordinate of
the initiator of the hearing, Ms Sylvia Haywood. In these
circumstances, it was submitted further
that a reasonable
apprehension of bias existed and that the proceedings were
consequently unfair.
The
commissioner upheld this argument. He concluded that "
Ms
Haywood's participation at the disciplinary hearing as an initiator
being a senior to the chair is some what irregular. The chairperson
of the disciplinary hearing may have been intimidated in such that
she was biased in favour of the respondent. It is therefore
my view
that the perception of bias has been established, and therefore the
dismissal is also procedurally unfair (
sic)".
On the
basis of his findings that Mvumvu's dismissal was both procedurally
and substantively unfair, the commissioner ordered the
Applicant to
reinstate Mvumvu.
I deal
first with the commissioner's conclusions relating to substantive
fairness. It is trite that the test to be employed to determine
whether or not an employee is guilty of the misconduct alleged by the
employer is a balance of probability, on the evidence presented
at
the arbitration. Although the commissioner makes reference in his
conclusions to a single aspect of Mvumvu's version (that she
did not
see Letselebe kick the bag) being the more probable, this is not his
conclusion in respect of her version generally, nor
is it the basis
of his reasoning for rejecting the version proffered by the
Applicant's witnesses.
While
he purported to apply the balance of probabilities test, the
commissioner in fact applied a different test, namely as to whether
any doubt existed as to the employee's guilt, or whether the only
reasonable inference to be drawn was that proffered by the Applicant.
This is apparent from the award read as a whole, and particularly
from the passages quoted above.
This
Court has previously held that when a commissioner errs by applying a
standard stricter than proof on a balance of probabilities,
the award
is reviewable. (See
Potgietersrus
Platinum Ltd v CCMA & others
(1999)
20
ILJ
2679
(LC),
Markhams (a division of Foschini
Retail Group (Pty) Ltd v Matji NO & others
[2003] 11 BLLR 1145
(LC)).
Mr
Baloyi, who appeared for the Third and Fourth Respondents, agreed
that the correct test to be applied was that of a balance of
probability, but submitted that the commissioner nevertheless came to
the correct conclusion on the evidence presented to him.
In this
regard, he referred
to Rustenburg
Platinum Mines Ltd v CCMA and others
[2003] 7 BLLR 676
(LAC).
I do
not consider that it necessarily follows from any agreement between
counsel to the effect that the commissioner's approach
was or may
have been fatally flawed that I should without further consideration
apply the proper test to the evidence that was
presented to the
commissioner and substitute his decision for my own. The
Rustenburg
Platinum
decision was concerned with
the severity of the sanction imposed by an employer and a finding by
the Court that the facts on which
the commissioner relied to sustain
his conclusion that dismissal was too severe a penalty had not been
established by the evidence.
It did not concern, as the present
matter does, a fundamental failure by a commissioner to determine, on
the evidence before him
or her, the preponderance of probabilities
given the conflicting versions presented by the parties during the
arbitration proceedings.
I am
not persuaded that it is appropriate in this instance for me to
ignore the flawed approach adopted by the commissioner and
simply
substitute my own finding on the merits after having applied the test
that he should have applied. While the Court
obviously has a
discretion when reviewing and setting aside an award to substitute
that award, this is not one of those matters
where the exercise of
that discretion is appropriate.
In
these circumstances, it is not necessary for me to consider the
further grounds for review on which the Applicant relies in relation
to the commissioner’s finding of substantive unfairness.
I turn
now to the commissioner's conclusions regarding procedural
unfairness. In essence, he finds that Mvumvu's dismissal was
procedurally unfair because the chair of the enquiry was in a
position junior to that of the complainant, and that it necessarily
followed on account of that relationship that there was at least a
valid perception of bias.
The
Third and Fourth Respondents concede that the mere fact that a
subordinate of Ms Haywood chaired the hearing does not necessarily
give rise to an inference of bias. It was submitted though that
the Third and Fourth Respondents had demonstrated a reasonable
apprehension of bias, and that the commissioner's findings in this
regard should therefore be upheld.
The
primary authorities relied on by the Third and Fourth Respondents to
the effect that valid perceptions of bias in the context
of a
workplace disciplinary enquiry should be addressed, all precede the
enactment of the 1995
Labour Relations Act.
To
some extent, Chapter VIII of the
Labour Relations Act represents
a
codification of the jurisprudence that preceded it. The Act
itself is silent on the content of any right to procedural
fairness,
it simply requires that an employer establish that a dismissal was
effected in accordance with a fair procedure. The
nature and extent
of a right to fair procedure preceding a dismissal for misconduct is
spelt out in specific terms in the Code
of Good Practice: Dismissal
in Schedule 8 to the LRA.
Item 4
of the Code provides:
“
(1)
Normally, the employer should conduct an investigation to determine
whether there are grounds for dismissal.
This
does not need to be a formal enquiry
.
(My emphasis)
The
employer should notify the employee of the allegations using a form
and a language that the employee can reasonably understand.
The
employee should be allowed the opportunity to state a case in
response to the allegations. The employee should be entitled
to a
reasonable time to prepare the response and to the assistance of a
trade union representative or fellow employee. After the
enquiry, the
employer should communicate the decision taken, and preferably
furnish the employee with written notification of that
decision.”
It
follows that the conception of procedural fairness incorporated into
the LRA is one that requires an investigation into any alleged
misconduct by the employer, an opportunity by any employee against
whom any allegation of misconduct is made, to respond after
a
reasonable period with the assistance of a representative, a decision
by the employer, and notice of that decision.
This
approach represents a significant and fundamental departure from what
might be termed the 'criminal justice' model that was
developed by
the industrial court and applied under the unfair labour practice
jurisdiction that evolved under the 1956
Labour Relations Act. That
model likened a workplace disciplinary enquiry to a criminal trial,
and developed rules and procedures, including rules relating
to bias
and any apprehension of bias, that were appropriate in that context.
The
rules relating to procedural fairness introduced in 1995 do not
replicate the criminal justice model of procedural fairness.
They
recognise that for workers, true justice lies in a right to an
expeditious and independent review of the employer’s
decision
to dismiss, with reinstatement as the primary remedy when the
substance of employer decisions are found wanting. For employers,
this right of resort to expeditious and independent arbitration was
intended not only to promote rational decision making about
workplace
discipline, it was also an acknowledgement that the elaborate
procedural requirements that had been developed prior to
the new Act
were inefficient and inappropriate, and that if a dismissal for
misconduct was disputed, arbitration was the primary
forum for
determination of the dispute by the application of a more formal
process.
The
balance struck by the LRA thus recognises not only that managers are
not experienced judicial officers, but also that workplace
efficiencies should not be unduly impeded by onerous procedural
requirements. It also recognises that to require onerous workplace
disciplinary procedures is inconsistent with a right to expeditious
arbitration on merits. Where a commissioner is obliged (as
commissioners are) to arbitrate dismissal disputes on the basis of
the evidence presented at the arbitration proceedings, procedural
requirements in the form that they developed under the criminal
justice model are applied ultimately only for the sake of procedure,
since the record of a workplace disciplinary hearing presented to the
commissioners at any subsequent arbitration is presented
only for the
purpose of establishing that the dismissal was procedurally fair. The
continued application of the criminal justice
model of workplace
procedure therefore results in a duplication of process, with no
tangible benefit to either employer or employee.
The
signal of a move to an informal approach to procedural fairness is
clearly presaged by the explanatory memorandum that accompanied
the
draft Labour Relations Bill. The memorandum stated the
following:
“
The
draft Bill requires a fair, but brief, pre-dismissal procedure …(It)
opts for this more flexible, less onerous, approach
to procedural
fairness for various reasons: small employers, of whom there
are a very large number, are often not able to
follow elaborate
pre-dismissal procedures; and not all procedural defects result
in substantial prejudice to the employee.”
On
this approach, there is clearly no place for formal disciplinary
procedures that incorporate all of the accoutrements of a criminal
trial, including the leading of witnesses, technical and complex
‘charge sheets’, requests for particulars, the
application
of the rules of evidence, legal arguments, and the like.
The
nature and extent of the fair procedure requirements established by
the
Labour Relations Act and
the Code is supported by international
labour standards. International Labour Organisation Convention 158
requires procedures to
promote compliance with the obligation to
ensure that dismissals are based on valid reasons. Although South
Africa has not ratified
Convention 158, and is therefore not obliged
to implement its terms in domestic legislation, the Convention is an
important and
influential point of reference in the interpretation
and application of the LRA. (see
NUMSA
and others v Bader Bop (Pty) Ltd and another
[2002] ZACC 30
;
[2003] 2 BLLR 103
(CC)). The observations and surveys by the ILO's
Committee of Experts on Convention 158 are equally important as a
point of reference
in the interpretation of Chapter VIII of the LRA
and the Code since they give content to the standards that the
Convention establishes.
This is particularly so in the present
instance because both Chapter VIII and the Code draw heavily on the
wording of Convention
158.
International
labour standards are also significant in that they give content to
the constitutional right to fair labour practices
(
see
NEHAWU v University of Cape Town & others
(2003) 24
ILJ
94 (CC) at 113 – 114). The right to fair labour practices
contained in section 23 of the Constitution, to the extent that
it
provides the foundation on which section 185 of the LRA (the right
not to be unfairly dismissed) is based, itself requires a
recognition
of the tension between the interests of workers on the one hand and
the interest of employers on the other. The
Constitutional
Court has stated that care must therefore be taken to accommodate,
where possible, these conflicting interests so
as to arrive at the
balance required by the constitutional conception of fair labour
practices. It is in this context that
the LRA, and in this
instance, Chapter VIII and the Code, must be construed (see the
University
of Cape Town
case at 113B-C).
Article
4 of Convention 158 provides that “
the
employment of a worker shall not be terminated for reasons related to
the worker’s conduct or performance before he is
provided an
opportunity to defend himself against the allegations made, unless
the employer cannot reasonably be expected to provide
this
opportunity
.“
In its
interpretation of this Article, the ILO’s Committee of Experts
has observed that the Convention does not state explicitly
what form
the opportunity to present a defence should take, or the form in
which the allegations should be presented. In its last
General Survey
on the application of the Convention, the Committee of Experts
observed that -
“
[147]
It is clear from the preparatory work
that the opportunity for a worker to defend himself is related to the
possibility of his being
afforded an opportunity to be heard by the
employer, without there being a need for an adversarial proceeding.
In reply to the
proposed text submitted to the Conference by the
Office and after the first discussion, which provided that the
employment of a
worker should not be terminated for reasons related
to his conduct or performance before being afforded a hearing by the
employer
and given the opportunity to defend himself against the
allegations made, three governments proposed to delete the reference
in
this paragraph to the word “hearing”, which they
believed implied a quasi-judicial procedure, with a view to greater
flexibility. The Office pointed out that inasmuch as the word
“hearing” might have such a connotation it felt that
this
reference could well be deleted without affecting the substance of
this provision, according to which a worker should not
have his or
her employment terminated for reasons of conduct or performance
before being given an opportunity to defend him- or
herself against
the allegations made.
[148]
Over and above the terms of Article 7 and its meaning, which is to
allow workers to be heard by the employer, the purpose
of this
Article is to ensure that any decision to terminate employment is
preceded by dialogue and reflection between the parties
.”
[1]
[1]
This
conception of the right to a hearing prior to dismissal (what the
Committee of Experts refers to as a preceding opportunity
for
'dialogue and reflection') is reflected in the Code. When the Code
refers to an opportunity that must be given by the employer
to the
employee to state a case in response to any allegations made against
that employee, which need not be a formal enquiry,
it means no more
than that there should be dialogue and an opportunity for reflection
before any decision is taken to dismiss.
In the absence
of exceptional circumstances, the substantive content of this process
as defined by Item 4 of the Code requires
the conducting of an
investigation, notification to the employee of any allegations that
may flow from that investigation, and
an opportunity, within a
reasonable time, to prepare a response to the employer’s
allegations with the assistance of a trade
union representative or
fellow employee. The employer should then communicate the decision
taken, and preferably communicate this
in writing. If the decision is
to dismiss the employee, the employee should be given the reason for
dismissal and reminded of his
or her rights to refer any disputed
dismissal to the CCMA, a bargaining council with jurisdiction, or any
procedure established
in terms of a collective agreement (see Item 4
(1) and (3)).
The
Convention goes on to require what it terms a right of appeal. This
is not the right of appeal to a higher level of management
that the
criminal justice model requires, it is a right of recourse to an
independent tribunal when the substantive merits of a
decision to
dismiss are challenged. This requirement is of course met by
these provisions of the LRA that require the arbitration
or
adjudication of disputed dismissals. Neither the Act nor the
Code obliges an employer to provide any workplace right of
appeal
against the decision to dismiss.
The
standard of procedural fairness that I have described above is the
standard that the Act establishes and which must be applied
by
commissioners. Section 203 of the Act obliges them to do so. That
section requires, in peremptory terms, that any person
who
interprets or applies the Act must take into account any relevant
code of good practice.
This
is not to say that employers and unions cannot agree to retain the
criminal justice model if they are so inclined, whether
by way of a
collective agreement (as was the case in
MEC:
Dept of Finance, Economic Affairs and Tourism, Northern Province v
Mahumani
[2005] 2 BLLR 173
(SCA)) or by
way of a contract of employment or employment policies and practices.
In this instance, employers are obviously bound
to apply the
standards to which they have agreed or that they have established. It
is also possible that the application of administrative
law to
employment issues may rqeuire a greater degree of formality. There
are conflicting judgments dealing with this issue, but
because this
matter arises in the private sector, I need not consider them.
In the
present matter, there was no legal basis for the application of the
rule against bias that the commissioner applied. In the
formulation
and application of a rule against bias, the commissioner clearly
applied the criminal justice model of procedural fairness,
and the
standards associated with it.
It
is now well established in this Court that arbitration proceedings
conducted under the auspices of the CCMA may be reviewed on
the
grounds that the commissioner committed a material error of law. (See
Hira and Another v Booysen and Another
1992 (4) SA 69
(A) at p.93,
Mlaba
v Masonite (Africa) Ltd and Others
[1998]
3 BLLR 291
(LC) at 301C-302E,
National
Commissioner of SA Police Service v Potterill NO and Others
(2003)
24
ILJ
1984 (LC) at para 25,
OK Bazaars (A
division of Shoprite Checkers) v Commissioner for Conciliation,
Mediation and Arbitration & others
(2000)
21
ILJ
1188 (LC) at para 10, and
Foschini Group
(Pty) Ltd v CCMA and others
(2002) 23
ILJ
1048
(LC) at para 25.)
The
reviewability of an arbitration award on the basis of an error of law
on the requirements set out in
Hira v
Booysen
was recently approved by the
Labour Appeal Court. In
Mlaba’s
case, this Court held that the review
of CCMA awards on the basis of an error of law is essentially one of
materiality (at page
301).
The
test of materiality may be described as follows -
“
If,
in the exercise of this discretion, a commissioner makes an error of
law, this does not render the decision of the commissioner
reviewable
unless it is a material error in the sense that it results in the
commissioner asking the wrong question or basing his
or her decision
on a matter not prescribed by the statute.”
(See
Moolman Brothers v Gaylard NO &
others
(1998) 19
ILJ
150 (LC) at 150 at 156).
In
summary, the commissioner failed to apply the test of a balance of
probabilities in determining the existence of misconduct,
and failed
to apply the provisions of the Act read with the Code by requiring a
standard of procedural fairness that is not contemplated
by either
the Act or the Code and that cannot otherwise be justified.
These shortcomings disclose material errors of law,
and the
commissioner's award stands to be reviewed and set aside on that
basis.
I
accordingly make the following order:
1.
The Second Respondent's arbitration award is
reviewed and set aside.
2.
The matter is referred back to the CCMA for
re-hearing before another commissioner.
3.
The Third and Fourth Respondents are to pay the
costs of these proceedings.
_________________________________
ANDRE
VAN NIEKERK,
Acting
Judge of the Labour Court
Date
of hearing
: 22
November 2005
Date
of judgment:
: 14
March 2006
Attorneys
for Applicant
: Mr
Chris Todd
Attorneys
Bowman Gilfillan Inc.
Counsel
for 3
rd
& 4
th
Respondents:
Advocate S Baloyi
Attorneys
for Respondent:
Kathrada Norval Rice Patel
[1]
[1]
Protection
Against Unjustified Dismissal’ General Survey, International
Labour Conference 82
nd
Session of the International Labour Conference 1995