About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2007
>>
[2007] ZALCCT 16
|
|
Andrag Machinery (Pty) Limited v Metal and Engineering Industries Bargaining Council and Others (C246/2005) [2007] ZALCCT 16 (19 November 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO
: C246/2005
In
the matter between:
ANDRAG
MACHINERY (PTY)
LIMITED
..............................................
Applicant
and
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
............................................................
1
st
Respondent
S
HARVEY
................................................................................
2
nd
Respondent
J
CARELSE
...............................................................................
3
rd
Respondent
JUDGMENT
NEL,
AJ
[1]
This is an application in which the applicant, the employer party,
seeks to have reviewed and set aside an award by the second
respondent (“the Commissioner”) handed down on 20 April
2005 under case number NEWC1010 under the auspices of the first
respondent.
[2]
In very brief, the circumstances which gave rise to the dispute,
which in turn led to the arbitration, which is the subject
of this
review, are that the third respondent (“Carelse” or “the
employee”) needed to warm medication on
the day in question.
He needed to do so urgently as he was already two hours late in the
taking of this medication. Carelse
had testified that his kidney
condition was life threatening. He also testified as to what the
symptoms were if he did not take
his medicine at the prescribed time.
Whilst he would normally heat the medication by boiling it in water,
on the day in question
that would have taken too long and he
therefore approached a Mr Arthur Kempen, one of the applicant’s
senior employees, and
obtained leave to heat the medication in a
microwave belonging to the applicant. He had already begun
experiencing the symptoms
as a result of him not having taken his
medication on time. Carelse had assured Arthur Kempen that it would
be safe to heat the
medication in the microwave. Arthur Kempen
accompanied Carelse to the office kitchen. Mr Andrag, the Managing
Director of
the applicant, approached them and enquired as to what
was going on. Arthur Kempen explained the situation to Andrag. Andrag
was
apparently concerned that the whole procedure may have been
unhealthy for people who used the kitchen. Andrag accordingly
indicated
that he did not believe it was safe for Carelse to do the
heating of his medication in an area where food was prepared and
indicated
that this would be last time Carelse would be allowed to
use the kitchen microwave. Carelse was not pleased with
Andrag’s
comments and told him that it would be Andrag’s
fault if, through his lack of compassion, he became sick.
Carelse also
told Andrag that things were bad in the factory because
of Andrag’s reluctance to help people.
[3]
On the employer’s version, Carelse had said to Andrag “Jy
is ‘n dier” or words to that effect.
Andrag also
alleged that Carelse was physically threatening in that he loomed
over him in his face. These allegations were
denied by Carelse
who in turn had alleged that Andrag had said to him “Gaan weg
van my tafel af want ek wil vreet”
or words to that effect.
This in turn was denied by Andrag.
[4]
Carelse was walking away from Andrag’s desk when Andrag ordered
him to come back. Carelse however disobeyed this
instruction
and left the room. This led to Carelse being charged and found guilty
of insubordination and him being dismissed.
He declared a
dispute which in turn led to the arbitration under consideration. The
Commissioner found the dismissal of the applicant
to have been
substantively unfair. She reinstated Carelse retrospectively to
the date of his dismissal, which was 29 July
2004, on the same terms
and conditions as those which prevailed immediately prior to his
dismissal and with no loss of accrued
service or benefits. She
also ordered the applicant to pay Carelse an amount of R11 952, less
statutory deductions.
[5]
The applicant in its founding affidavit criticises the Commissioner
in respect of a number of specific findings and then, so
it would
appear, summarises its grounds of review as being that the
Commissioner:
Failed
to give proper effect to her powers and duties in terms of the
Labour Relations Act; and/or
Reached
conclusions unjustified on the facts and inconsistent with the law;
and/or
Did
not apply her mind properly or fairly or at all to the issues before
her, as she was obliged to do; and/or
Took
into account irrelevant matters and failed to take into account
relevant matters; and /or
Committed
a gross irregularity in the proceedings; and/or
Acted
unreasonably.
[6]
It was further contended by the applicant that the Commissioner’s
award was not based on proper legal principles and that
it
constituted an excess of the Commissioner’s powers as the award
was not justified on the evidence placed before the Commissioner
at
the arbitration proceedings. In argument before Mr Jacobs, who
appeared on behalf of the applicant, very clearly condensed
all of
these attacks by arguing that the review was based on two grounds,
both of which, according to him, warranted the review
and setting
aside of the award. The first ground of review was contended to
be that the Commissioner had failed to apply
her mind to the facts
and the evidence before her and that she accordingly erred in her
finding and award. The second ground
of review was that the
Commissioner’s conduct towards the applicant’s
representatives was such that it either constituted
gross misconduct
or that it displayed a clear bias and prejudicial position against
the applicant and thus that it denied the applicant
the opportunity
for a fair trial.
[7]
I turn to consider first whether there is merit in the applicant’s
contention that the Commissioner failed to apply her
mind to the
facts and evidence before her as a result of which she erred in her
finding and award.
[8]
It is quite apparent from the Commissioner’s award that she was
fully alive to the issues she had to determine.
It is apparent
that in the first instance the Commissioner agreed with the argument
presented to her on behalf of the employer
that employees had a duty
to be respectful and subordinate towards their employer and that
rudeness, cheekiness and insubordination
could all be valid grounds
for dismissal. From this premise it is apparent that the
Commissioner then considered the fact
that the employer alleged that
Carelse was cheeky, rude and insubordinate. In addition the
employer had alleged Carelse was
rude and disrespectful by having
adopted a threatening stance towards Andrag, and calling him an
animal. In addition, the
employer had relied on the fact that
Carelse had refused to return to Andrag’s desk when Andrag had
called him back.
[8]
The Commissioner accordingly clearly indicated what the facts were on
which the employer relied in order to persuade her that
she should
confirm the employer’s finding at the disciplinary enquiry that
Carelse was guilty of insubordination. The Commissioner,
in what I
believe to be a reasoned manner, then set out the facts which she
found and why she made particular findings.
[9]
In the first instance, the Commissioner indicated what the facts were
which were not in dispute. In respect of some of
these facts,
which the Commissioner found not to have been in dispute, she is also
criticised by the applicant. For example,
issue is taken with
the Commissioner’s finding that it was established that the
applicant was in a state of medical crisis.
It was argued on
behalf of the applicant that this conclusion of the Commissioner was
not justified in the absence of expert medical
evidence. A
perusal of the evidence adduced discloses that Carelse had testified
what the symptoms would be that would manifest
itself in the event of
him not taking his medicine timeously. I certainly could not
find any evidence adduced on behalf of
the employer contradicting
Carelse’s evidence as to what these symptoms were. He had
testified, and again I do not
believe this was gainsaid, that his
kidney condition was life threatening. On the evidence adduced
before the Commissioner
I believe she was perfectly justified in
finding that it was established that the applicant was in a state of
medical crisis and
that he needed the dialysis badly. I
certainly do not believe that Carelse needed to call an expert
medical witness to confirm
his evidence, particularly in the absence
of any serious challenge being made of his evidence.
[10]
But for the attack on this part of the Commissioner’s reasoning
in respect of what she recorded were the common cause
facts, the
applicant does not appear to have taken issue with the rest of the
facts the Commissioner had recorded as being common
cause. The
applicant also does not appear to have taken issue with the recorded
facts, which the Commissioner found were
matters in dispute.
[11]
It is quite apparent that the employer in essence relied on the fact
that it alleged that Carelse had called the employer’s
chief
executive officer an animal, (that is “Jy is ‘n dier”).
It further relied on his physical demeanour as
having been
threatening by reason of Carelse having loomed over Andrag and having
been in his face. The third element on
which the employer
relied was that Carelse had walked away from Andrag’s desk and
had ignored Andrag’s instruction
that he must stay and advise
Andrag what he had said. The Commissioner was satisfied that
the actual walking away by Carelse
from Andrag’s desk was
common cause. It is apparent that the Commissioner, however,
accepted the explanation tendered
by Carelse for having walked away.
[12]
The fact of the matter is that in respect of two of the three crucial
factual elements, on which the employer relied for its
allegation
that Carelse was insubordinate, the Commissioner reasoned herself
through to a particular conclusion. This in effect
was that she
rejected the version put forward on behalf of the employer and found
that the employee’s version was more believable.
[13]
In this regard, as I said, the applicant launched a number of
specific attacks on the Commissioner’s reasoning. In finding
that there were some discrepancies between Kempen junior and Andrag’s
evidence in respect of the physical position Carelse
had adopted when
confronting Andrag in his office, it was suggested on behalf of the
applicant that the Commissioner had failed
to consider the fact that
Andrag was facing Carelse head on and that Kempton junior had
witnessed the incident from a very different
angle and from a
distance. In this regard it must be remembered that, in her
award, the Commissioner indicated that Kempen
junior’s physical
demonstration did not corroborate Andrag’s version that Carelse
had leant over his desk in a threatening
manner. She indicated
what Kempen junior’s demonstration had indicated and concluded
that his evidence did not corroborate
that of Andrag. I certainly do
not believe that the angle at which Kempen junior viewed the incident
could justify the differences
in specific respects between his and
Andrag’s evidence and which he apparently had demonstrated to
the Commissioner.
[14]
A further attack launched on the Commissioner’s award was in
respect of her findings that Kempen and Andrag had contradicted
one
another on where the conversation between Carelse and Andrag had
taken place. I do not believe that the Commissioner
as a matter
of fact was wrong and inaccurate in how she assessed Kempen junior
and Andrag in respect of where the conversation
had taken place.
It must be remembered that two witnesses with the surname Kempen
testified before the Commissioner.
The one was Arthur Kempen.
The other Kempen was identified by the Commissioner, to distinguish
him from Arthur Kempen, as Kempen
junior. It is apparent that
the Commissioner was at all times alive to the fact that Arthur
Kempen’s evidence really
only dealt with what happened in the
kitchen between Carelse and Andrag. When she, in her award,
says that Arthur Kempen’s
evidence corroborated that of Carelse
on most aspects, that obviously is with reference to what had
happened in the kitchen.
[15]
The point was made by the applicant that the Commissioner erred in
concluding that Andrag’s evidence indicated that the
entire
conversation between himself and the applicant took place at his
desk. Having regard to the Commissioner’s summation
of
the evidence, it is quite clear that she was alive to the fact that
Andrag had testified that he had gone to the kitchen to
wash an apple
he intended eating. Having regard to Andrag’s evidence it
is, however, apparent that Andrag did contend
that the entire
conversation, as well as the events on which the employer relied for
its accusation of insubordination, took place
at his desk in his
office. If one has regard to the evidence of Arthur Kempen, one
sees that his evidence was in the first
instance that he only
observed the conversation between Andrag and Carelse, which took
place in the kitchen. Arthur Kempen
testified that Andrag said
in the kitchen that the microwave oven is only there to heat food and
that Andrag did not know whether
medicine could be heated in it, as
it could be dangerous. According to Arthur Kempen, Andrag also
said to Carelse that it
was the first and the last time that Carelse
may heat his medicine in the microwave. Arthur Kempen further
testified that
Carelse had told Andrag about the hot water he would
heat his medicine in and that he had explained about his kidney
situation.
Arthur Kempen also testified that Carelse had told
Andrag that he, Carelse, was already two hours late with the taking
of his medication
as well as that Carelse had said that they were
busy at another place and that he was not able to heat his medication
there.
Carelse had also, according to Arthur Kempen, told
Andrag of the different processes, which Carelse had used to heat the
medicine
on a little stove.
[16]
If one assesses what Andrag’s evidence in chief was in respect
of what occurred in the kitchen between him, Carelse and
Arthur
Kempen, one sees that, according to Andrag, he went to the kitchen to
wash his apple. Arthur Kempen and Carelse were busy
at the
microwave. Andrag saw the bag being placed into the microwave
and he enquired about what it was. Arthur Kempen
answered that
it was Carelse’s medicine. This was the first Andrag had
heard about he medication that Carelse would
need. According to
Andrag he had a question in his mind about the hygiene and that he
had remarked that he did not know about
the safety issues, whether it
was safe to heat medicine in the microwave. Then he passed
Arthur Kempen and Carelse and went
back to his desk. From his
desk he could hear Carelse telling Arthur Kempen that the substance
needed to be heated up for
ten minutes at full heat. He heard
Arthur Kempen asking whether it would be safe and whether it could
not explode and that
he was assured by Carelse that it was safe and
that he had done this in the same way at his home. On realising
that it might
be unhealthy to heat the medicine in the kitchen,
Andrag said that he then from his desk said that he was not sure that
it was
safe to have the medication heated in an area where food was
prepared and that he had then had said to Carelse that it would be
better if he did it in another way. It was then, according to
Andrag, that Arthur Kempen had asked Carelse after a while
whether he
had heard Andrag’s statement that heating of the medicine
should be done in a different way.
[17]
The record accordingly clearly reflects differences between the
evidence of Arthur Kempen and Andrag as to what was said in
the
kitchen. And this is so particularly in respect of where what
was said. I am accordingly of the view that the Commissioner
was
perfectly justified in concluding that Andrag and Arthur Kempen
contradicted one another as to where what part of the conversation
had taken place.
[18]
The Commissioner went to the length of indicating in her award that
she made a note of Andrag’s demeanour whilst he was
testifying. It is trite that an appeal or review court will not
easily interfere with a Court
a quo’s
assessment on
credibility, particularly insofar as it relates to demeanour.
[19]
Andrag’s demeanour is however not the only aspect on which the
Commissioner relied for her eventual conclusion.
I have already
referred to the fact that the Commissioner also concluded that there
were contradictions between Arthur Kempen and
Andrag as to where
conversation had taken place.
[20]
The reasoning of the Commissioner, relating to Andrag having
testified that the conversation at his desk was quiet and the
fact
that Kempen junior said that he heard nothing save for the fact that
Andrag said that he did not want to argue any more and
that Carelse
had called Andrag an animal, appears to me to be a perfectly rational
reasoning process, which the Commissioner embarked
on, in order to
assess the evidence adduced before her.
[21]
Lastly, the Commissioner also, as I said, relied on Kempen junior’s
evidence about Carelse’s physical stance and
the fact that it
differed from that of Andrag.
[22]
Having reasoned herself through, with reference to these particular
aspects of the evidence adduced before her, the Commissioner
came to
a conclusion that she was satisfied, on a balance of probabilities,
that the employer had not established that the animal
comment had
been made by Carelse, or that Carelse was aggressive or threatening
in his physical stance. In respect of the
Commissioner’s
reasoning, I find her conclusion perfectly justifiable having regard
to the evidence adduced before her.
[23]
Having arrived at the aforementioned conclusion, the Commissioner
then embarked on a comprehensive assessment of the circumstances
and
the situation, which prevailed at the time. In this regard the
Commissioner considered the evidence before her that Andrag
had a
dislike for NUMSA and its members. She also considered the fact
that Andrag was disdainful about the “dirty”
medication
bag and the fact that he had regarded the heating of Carelse’s
medication as potentially dangerous and the Commissioner
regarded
Andrag’s approach as inappropriate and poorly judged. The
Commissioner concluded that Andrag was seemingly
unaware that he was
witnessing a serious health crisis in another person who deserved his
support and not his contempt. I
am unable to find any of the
extensive reasoning of the Commissioner in this regard capable of
attack in the sense that she perpetrated
a reviewable irregularity,
misconducted herself or exceeded her powers. Likewise, her conclusion
that Carelse’s failure to
return, when called back by Andrag,
did not amount to insubordination, is in my view wholly justifiable,
having regard to the reasons
the Commissioner provided therefore and
the evidence on which she had relied for this conclusion.
[24]
I lastly turn to deal with the second ground of review, and that is
with reference to the fact that, towards the end of the
arbitration
proceedings, the Commissioner excluded Mr Jordaan, the applicant’s
representative at the arbitration, from the
arbitration proceedings
as he was held by the Commissioner to have disrupted such
proceedings.
[25]
Mr White, who appeared before me on behalf of the third respondent,
in argument before me drew my attention to the fact that
the
applicant elected not to file any replication to the third
respondent’s opposing answering affidavit. In respect
of
this particular ground of review, Mr Whyte drew my attention to the
following allegations made by the third respondent, which
stands
uncontested by the applicant. Carelse’s replying affidavit
refers to specific pages of the transcript of the arbitration
proceedings. He then alleges that it would be readily apparent
from the specific extract in the record that once the Commissioner
had overruled Mr Jordaan’s objection, Jordaan continued to
argue with her in an aggressive manner. Carelse further
pointed
out that Jordaan’s demeanour towards the Commissioner was
extremely aggressive and inappropriate, considering the
nature of the
proceedings.
[26]
Apart from the fact, as I said, that these allegations stand
undenied, I for myself perused the specific parts of the record
to
which Carelse referred me. The record itself reflects Jordaan’s
aggressive and inappropriate manners. Carelse
further contended
that, in respect of Jordaan’s approach towards the
Commissioner, it warranted her finding that he was disrupting
proceedings. Apart from this allegation not having been
contested by the applicant, I agree therewith.
[27]
Carelse then referred me to the specific part of the record, which
contains the whole incident, which led to the Commissioner
excluding
Jordaan from the proceedings. Carelse submitted that the
exchange that occurred was wholly inappropriate and that
Jordaan had
gone so far as to harass and intimidate the Commissioner. Yet
again this allegation stands uncontested and having
perused the
record, Carelse is in my view wholly justified in making these
allegations of his.
[28]
Carelse’s opposing answering affidavit further pointed out that
Jordaan’s intimidatory tactics were not limited
to the verbal
exchanges recorded but that he had adopted a physically threatening
manner towards the Commissioner and Carelse himself.
This is not
gainsaid by the applicant in any replying affidavit.
[29]
The applicant alleges in his founding affidavit that, during the
hearing, Jordaan raised objections to leading questions that
were
being asked by Carelse’s representative. It is alleged
that when Jordaan specifically objected to a question in
which
something which was never testified to was put to the witness
Williams as being part of his evidence, the Commissioner refused
to
hear Jordaan’s objection. It is alleged that she even
verbally attacked Jordaan. It is said that the Commissioner
then switched off the recording, I assume verbally attacking Jordaan
off record, and that she allegedly proceeded off record to
verbally
attack Jordaan in a hysterical state. The submission was made
that the Commissioner was completely out of control.
Although
the Commissioner did not depose to any answering affidavit in respect
of these allegations, Carelse, who was present,
denied that the
Commissioner was hysterical or out of control and he contended that
she had handled the situation to the best of
her ability.
[30]
I believe that the fact that the Commissioner was fully justified in
finally deciding to exclude Mr Jordaan from the proceedings
is
perhaps best illustrated by extracts from the record of the
arbitration proceedings itself. The first incident to which
Carelse referred the Court is recorded as follows:
“
Arbitrator:
I must ask you please to just relax and behave properly …
(talking simultaneously).
Mr
Jordaan: I hear what you are saying … can I just ask you
but how many times do we need to listen to this.
That is what I
am asking you. That is your responsibility.
Arbitrator:
Mr Jordaan, that is my responsibility and if I find that the
questioning is going on too long I will stop the
questioning. I
have noted your objection, I have overruled it and I will allow Mr
Piedt to continue to question the witness
and I would appreciate it
if you would stop sighing and … (intervention).
Mr
Jordaan: Does that disallow me from having any feelings about
this?
Arbitrator:
You may have feelings, Mr Jordaan, but please refrain from sighing
and disrupting the proceedings … (intervention).
Mr
Jordaan: I am not disrupting …(intervention).
Arbitrator:
Please behave …(intervention).
Mr
Jordaan: If I am sighing I am not disrupting him.
Arbitrator:
Please behave in a manner fitting your status as a representative.
Mr
Jordaan: Are we now getting personal (indistinct)?”
[31]
Later on in the proceedings, the following incident occurred:
“
Mr
Jordaan: Objection Commissioner. That is not what was
said.
Mr
Piedt: It is a statement.
Mr
Jordaan: No, it is not a statement. Keep to the facts.
It is not what was said …
Arbitrator:
I am not going to entertain argument.
Mr
Jordaan: I am not arguing, Commissioner but surely …
(intervention).
Arbitrator:
Mr Jordaan, I am going to warn you now especially on record …
(intervention).
Mr
Jordaan: Okay, can I just ask you what …(intervention).
Arbitrator:
No, you may not, Mr Jordaan. Do you want me to (indistinct)
contempt, because I am tired of you interrupting
me every time I say
something (indistinct) …(intervention).
Mr
Jordaan: Commissioner, can I just ask you, …(intervention).
Arbitrator:
No …
Mr
Jordaan: …. Do I have the right to object?
Arbitrator:
I will give you one minute and I will eject you from these
proceedings if you don’t allow me to finish my
sentences.
Mr
Jordaan: Okay, then can I ask you ….(intervention).
Arbitrator:
I have never refused you an opportunity to speak when it is your turn
to speak, Mr Jordaan. So I will not
continually be intimidated
and interrupted by you in these proceedings, and at the moment I am
speaking and what I am trying to
say at the moment is that I will
allow that question and I will not accept the disrespectful attitude
that you display towards
this forum, and I am putting it on record
that I object to the disrespectful attitude that you have for this
forum, I object to
your constant interruptions, I object to your
constant argumentation with the rulings that I make and if it happens
again you will
be found in contempt of (indistinct) proceedings and I
will eject you from this hearing.
Mr
Jordaan: I hear that.
Arbitrator:
Thank you, Mr Jordaan.
Mr
Jordaan: Can I answer to that Commissioner?
Arbitrator:
No, you cannot answer, (indistinct)… (intervention).
Mr
Jordaan: You put it on record – can I just ask you,
Commissioner, can I object when I believe that Mr …
(intervention).
Arbitrator:
Mr Jordaan, we had this discussion last time you were here. I
made it very clear …(intervention).
Mr
Jordaan: Commissioner, just answer, say no.
Arbitrator:
Don’t interrupt me.
Mr
Jordaan: Commissioner, just say no then. Say no
(indistinct) object.
Arbitrator:
We will stand down for five minutes.
Machine
switched off – on resumption
Arbitrator:
Okay, we have taken a five minute break. Hopefully Mr Jordaan
has thought about his conduct (indistinct)
these proceedings. Mr
Jordaan, my final warning to you.
Mr
Jordaan: (indistinct).
Arbitrator:
If this carries on, if you interrupt these proceedings again in
disrespectful manner and if you continue to interrupt
me and do not
give me the respect which I am due you will be ejected from these
proceedings and your client will conduct –
or finish the
cross-examination and his argument on his own.
Mr
Jordaan: Can I ask you permission, can I answer to that?
Arbitrator:
No, you can’t.
Mr
Jordaan: Can I get my client to just ask you Commissioner
…(intervention).
Arbitrator:
(indistinct). You cannot.
Mr
Jordaan: I insist to answer to that because I don’t agree
…(intervention).
Arbitrator:
(indistinct) you are excused.
Mr
Jordaan: Can I ask you Commissioner …(intervention).
Arbitrator:
(indistinct).
Mr
Jordaan: … Would you consider recusing you from the
case?
Arbitrator:
Mr Jordaan, I am telling you again on record that you are now excused
from these proceedings. I am asking
you to leave the room.
Mr
Jordaan: Commissioner, I have asked you to answer to your
allegations because I don’t believe that I was disrespectful
to
you.
Arbitrator:
No, (indistinct).
Mr
Jordaan: I don’t believe that I – kom ek spel dit
vir u in Afrikaans. Ek dink u het geen reg …
(tussenbeide).
Arbitrator:
I would like the record to show that I have asked Mr Jordaan to leave
the room.
Mnr
Jordaan: Ek dink ons het kennis geneem – Kommissaris ek
wil hê u moet weet …(tussenbeide).
Arbitrator:
Mr Jordaan is ignoring my instructions and he is not accepting my
ruling in this matter (indistinct) …(intervention).
Mnr
Jordaan: Ek aanvaar u ruling. Kommissaris, ek aanvaar die
ruling. Wat ek u vra, repliseer (rekuseer?) uself
…
(tussenbeide).
Arbitrator:
I am going off the record. I am going to wait for Mr Jordaan …
Machine
switched off – on resumption:
Mr
Jordaan: It is highly irregular what you are doing.
Arbitrator:
I have asked you to leave the room, Mr Jordaan. If you have any
problem with the irregularity I am sure
you know the correct forum to
deal with those allegations.
Mr
Jordaan: Yes. You can bargain on that. You can
bargain on that. You’ve displayed this attitude
from the
start.
Arbitrator:
Thank you, Mr Jordaan, you are excused from these proceedings.
Mr
Jordaan leaves the room.”
[32]
The above, and particularly the allegation that Jordaan adopted a
physically threatening manner towards the Commissioner, in
my view
serves as justification for the Commissioner’s conclusion that
Jordaan was disrupting the arbitration proceedings.
Mr White
contended before me that under these circumstances, the Commissioner
acted appropriately and within her statutory powers
in excluding
Jordaan from the proceedings. Mr White continued to argue that
it was apparent from the transcript of the proceedings
that the
Commissioner went out of her way to ensure that the applicant
nonetheless received a fair hearing.
[33]
Mr White on the one hand did not refer me to any particular section
of any statute on which he relied for his proposition that
the
Commissioner was statutorily empowered to exclude Mr Jordaan from the
hearing by reason of his disruptive conduct. The
Commissioner
derives her powers from the Labour Relations Act (“the LRA”).
It is trite that Section 138 of the
LRA gives a Commissioner the
power to conduct the arbitration in a manner that she considers
appropriate in order to determine
the dispute fairly and quickly but
that she must deal with the substantial merits of the dispute with
the minimum of legal formalities.
I do not believe that this
wide discretion to conduct the arbitration in a manner the
Commissioner considers appropriate includes
the power to exclude a
representative of a particular party if he in the view of the
Commissioner is obstructing the process.
I have
considered whether the Commissioner, in terms of Section 142(8) of
the LRA, may have the right to exclude a representative
of a party
from the arbitration proceedings. One sees that if a person
insults, disparages or belittles a Commissioner, or
pre-prejudices or
improperly influences the proceedings, or improperly anticipates the
Commissioner’s award, or wilfully
interrupts the conciliation
or arbitration proceedings, or misbehaves in any manner during those
proceedings, a Commissioner may
make a finding that a party is in
contempt of the Commission. However, such a finding may be
referred, together with the
record of the proceedings, to the Labour
Court for its decision, who may then affirm, vary or set aside the
finding of contempt
of the Commissioner. It is apparent that
only once the Labour Court has confirmed a finding by a Commissioner
that a party
is in contempt, then it is the Labour Court who may make
any order that it deems appropriate which may include suspending a
person’s
right to represent a party in the Commission and the
Labour Court, but only in the case of a person who is not a legal
practitioner.
[34]
I do not believe that any of these sections of the LRA to which I
have referred, or for that matter any other section of the
LRA, does
give a Commissioner the power to exclude a representative of a party
from the proceedings by reason of the representative’s
misconduct or because of the representative disrupting the
arbitration proceedings. Accordingly, I am of the view that in
excluding Jordaan from the arbitration proceedings, as unacceptable
as his conduct was, which I certainly find as a fact his conduct
was,
the Commissioner nevertheless in my view exceeded her powers in
excluding Jordaan from the rest of the arbitration proceedings.
I
believe that what the Commissioner was empowered to do was to make a
finding that Jordaan was in contempt of the Commission.
The
Commissioner should then have postponed the arbitration indefinitely
and referred her finding, together with the record of
the
proceedings, to the Labour Court for its decision, who may then have
affirmed, varied or set aside the finding of contempt
of the
Commissioner. Only the Labour Court had the power to make any order
that it deemed appropriate, which may have included
suspending
Jordaan’s right to represent a party in the Commission, but
only in the case of Jordaan not having been a legal
practitioner.
[35]
Although I am of the view that the Commissioner accordingly exceeded
her powers by excluding Jordaan from the arbitration proceedings,
I
do however agree with Mr White’s contention that the
Commissioner went out of her way to ensure that the applicant
nonetheless
received a fair hearing. In this regard she allowed
Jordaan, at the request of Mr Andrag, to remain present although she
continued to refuse to allow Jordaan the right to further participate
in the proceedings. The Commissioner further allowed
the
parties to present their legal argument in writing.
[36]
The incident of the Commissioner excluding Jordaan from the
proceedings further occurred at a stage when only one witness still
had to be cross-examined by the applicant. This witness of the
employee Carelse, Mr Elias Williams, presented a lot of evidence,
which was never put to the employer’s witnesses. The
Commissioner recorded that she did not take such evidence of Williams
into account. The purpose of his evidence was further, so it
would appear, to persuade the Commissioner that the applicant
had
acted inconsistently in respect of the sanction it imposed on Carelse
with reference to two other employees who, according
to Williams, had
been found guilty of the same offence, but were both given final
written warnings. I do not believe that
any of the evidence
adduced by Williams affected the Commissioner either in her reasoning
or the conclusion she arrived at.
[37]
Although I am accordingly of the view that the Commissioner exceeded
her powers when she excluded Jordaan from the arbitration
proceedings, I am satisfied that, by reason of the late point in time
during the arbitration proceedings that Jordaan was excluded;
the
fact that Jordaan was allowed to assist Andrag the remaining part of
the proceedings; the fact that the witness who then had
to be
cross-examined by the applicant’s representative who could only
be assisted by Jordaan gave evidence which was either
ignored by the
Commissioner or did not influence her conclusions; and lastly, the
fact that the Commissioner allowed written argument
to be presented,
all drives me to the conclusion that the Commissioner having exceeded
her powers by excluding the applicant’s
representative
nevertheless did not lead to the applicant having suffered any
prejudice or it not having had a fair hearing.
[38]
Under all these circumstances, I am satisfied that the applicant has
not succeeded in showing that the Commissioner has perpetrated
any
irregularity or misconduct which justifies the review and setting
aside of her award herein. As I have said a moment
ago, in
respect of the conclusion that the Commissioner exceeded her powers
when she excluded Jordaan from the arbitration proceedings,
I am
nevertheless not persuaded, for the reasons I stated, that this in
and by itself justifies the reviewing and setting aside
of the award
herein.
[39]
Under all these circumstances, the application falls to be dismissed.
No special circumstances have been placed before me for
consideration
in support of a conclusion that the costs should not follow the
result herein. Accordingly the order that I
make herein is the
following:
(1)
The application is dismissed.
(2)
The applicant is ordered to pay the third
respondent’s cost of suit.
DEON
NEL
ACTING
JUDGE OF THE LABOUR COURT
Date
of hearing: 24 April 2007
Date
of Judgment: 19 November 2007
Appearances:
For
the applicant: Mr Willem Jacobs of Willem Jacobs and Associates.
For
the third respondent: Mr Jason White of Cheadle Thompson and Haysom
Inc.