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[2008] ZALCJHB 8
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Karen Beef (Pty) Ltd v Bovane NO and Others (JR1605/05) [2008] ZALCJHB 8 (16 March 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR1605/05
In
the matter between:
KAREN
BEEF (PTY) LTD
First
Applicant
And
BONISWA
BOVANE
N.O 1
ST
Respondent
CCMA
2
nd
Respondent
SOUTH
AFRICAN COMMERCIAL
CATERING
ALLIED WORKERS UNION
OBO
MATHE
3
RD
Respondent
JUDGMENT
MOLAHLEHI J
Introduction
[1]
This is an application in terms of
s145 of the Labour Relations Act 65 of 1995 (the LRA) in terms of
which the applicant seeks
to review and set aside the arbitration
award issued by the first respondent (the commissioner) under case
number MP5909-04 and
dated 08 May 2005. In terms of this award
the commissioner found the dismissal of the third respondent, Mr
Mathe to be both
substantively and procedurally unfair.
[2]
The review application was opposed by the
South African Chemical Catering and Allied Workers Union (SACCAWU)
acting on behalf of
Mathe.
Background
[3]
Prior to his dismissal, Mathe was employed
as a driver responsible for delivering meat products to the
applicant’s clients.
[4]
The applicant dismissed Mathe for being
drunk on duty on 6 October 2004. At the time of his dismissal he was
on a final written
warning for the same offence.
[5]
The version of Mathe during the arbitration
hearing was that, on arrival at the applicant’s premises on 20
September 2004,
he was informed by the security officers that the
britalizer machine was not “in commission” that day.
He then
proceeded to clog in and finalised the loading of his truck.
[6]
According to him at about 09:37 he
proceeded to the gate with his truck and the delivery invoices. When
he arrived at the gate he
found that the britaliser machine was in
good condition and working. He was then required to blow into the
machine and the results
thereof were positive. He was then
informed by the security officers to change into his civilian clothes
and go home.
[7]
After changing into his civilian clothes on
his way back from the change room he met with a certain Jack who
advised him to take
the second test. They both approached the
security officer who agreed to conduct the second test, the results
of which were
negative.
[8]
Mathe then phoned Mr Scheiker the manager
to inform him about the negative results of the second test.
Scheiker responded
by informing him that he should go home and that
he (Scheiker) would be chairing his disciplinary hearing. What
then followed
thereafter was a disciplinary hearing against Mathe.
[9]
Scheiker, the chairperson of the
disciplinary hearing testified for and on behalf of the applicant
that Mathe attempted to evade
the alcohol test on the day in
question. He further testified that the level of alcohol which
was found in Mathe was 0.011%
which was in excess of the statutory
limit for truck drivers which is 0.002%.
[10]
The second witness of the applicant Mr Jan
Mofokeng the security officer, testified that the britaliser machine
he used to conduct
the test on Mathe on the day in question is
calibrated every six month and on that day it was unlikely that it
was not functioning
properly. He further testified that Mathe
attempted to bypass the britaliser test when reporting for work but
was compelled
to take the test when he presented his papers for the
security check before departing with his loaded truck.
Grounds for review
[11]
The applicant contended that the conclusion
of the commissioner that the dismissal was both procedurally and
substantively unfair
was not reasonable and justifiable based on the
evidence properly before her and that in this regard the commissioner
committed
a number of irregularities in analysing the evidence placed
before her.
[12]
In as far as procedural unfairness is
concerned the commissioner found that Mathe’s dismissal was
unfair because the chairperson
of the disciplinary hearing was
biased. This conclusion is based on the finding by the
commissioner that the chairperson
conceded that when Mathe approached
him concerning the alcohol test he refused to speak to him and told
him to go home because
he would be chairing his disciplinary
hearing. The commissioner found in this regard that the
chairperson of the disciplinary
hearing had prior information
regarding the allegations labelled against, Mathe and was therefore
biased.
[13]
This conclusion, the applicant argued,
constitutes a gross irregularity because the commissioner
misconstrued the test for bias.
[14]
The relevant legal principles governing the
concept of bias received attention in the appellate division case of
BTR Industries SA (Pty) Ltd v Metal and
Allied Workers’ Union
[1992] ZASCA 85
;
1992 (3) SA 673
(A)
.
In dealing with the definition of the word “bias” the AD
quoted with approval what was by the house of Lords in the
case of
Franklin v Minister of Town and Country
Planning
1948 AD 87
(HL) at 103m,
where
it was held that the proper significance of the word “bias”
means:
“…
to
denote a departure from the standard of even – handed justice
which the law requires from those who occupies judicial office
or
those who are commonly regarded as holding a quasi-judicial office
…”.
[15]
Of significance in the determination of the
issue before this court was the determination of the test to be
applied by the commissioner,
in assessing the existence of bias as
claimed by Mathe. In this regard Hoester JA held at 693 para
I-J in BTR Industries
that:
“…
I
conclude that in our law the existence of a reasonable suspicion of
bias satisfy the test: and that an apprehension of a real
likelihood
that the decision maker is biased is not a prerequisite for
disqualifying bias”.
[16]
Earlier on in the judgment the court had
quoted with approval what was said by full bench of the Cape
Provincial Division per Conradie
J at 880 E-G in the case of
Monnig
and Others v Council of Review and others
1989 (4) SA 866
(C),
where the learned Judge said
:
“
Since
the appearance of impartiality have to do with the public perception
of the administration of justice, it is only to be accepted
that some
tribunals will be more vulnerable to suspicion of bias than the
other. The most vulnerable, I ventured to suggest,
our
tribunal- other than the courts of law- which have all the attributes
and are expected by the public to have exactly as a court
of law
does”.
[17]
The view expressed by Conradie J in the
above quotation was expressed in the context of a court martial.
The same view was
expressed by the Labour Appeal Court in the case of
Anglo American Farms t/a Boschendal
Restaurant v Komjwao (1992) 13 ILJ 573 (LAC) at para [583].
In
that case the Court quoted with approval Cameron in an article
entitled “The Right to a Hearing before Dismissal Part 1”
(1986) 7 ILJ 183 at 2132 where the learned author said:
“
While
allowance will be made for the unavoidable practicalities of prior
contract, personnel impression and mutual reaction in the
employment
relationship, any further feature which precludes the person hearing
the complaint from bringing an objective and fair
judgment to been on
the issues involved- such as bias or presumed bias stemming from a
closed or prejudiced mind or family or other
relationship will render
the procedure unfair. The importance of appearances in
this area must not be left out of account
and it is admitted that
where an employee has a reasonable basis for believing that something
more than merely the traces of unavoidable
left by prior contact in
the employment relationship is present and this precludes a fair
hearing, a complaint on the grounds of
bias should be upheld”.
[18]
The learned author went further to say:
“
In
the employment context the full rigour of the law as it has developed
in relation to statutory or domestic tribunals is not applied.
The person or person’s deciding on guilt or innocence and on
the appropriate penalty will in many cases know the accused
employee
(including past history, employment record, previous warning) and may
have even termed some initial impression as to the
event in issue”
.
[19]
It is clear that the complaint of bias that the Mathe relied on in
this matter is founded on the response that the chairperson
of the
disciplinary hearing gave him when he (Mathe) sought to speak to him
about the britaliser test. The chairperson refused
to speak to
him as he indicated that he would be chairing the disciplinary
hearing.
[20]
It is apparent that the commissioner based her determination of bias
on the subjective submission by Mathe and not on the objective
assessment of the evidence before her. In fact even on Mathe’s
own version, the evidence was in my view insufficient to arrive
at a
conclusion that the chairperson of the hearing was bias. In
this regard it is also my view that the commissioner’s
conclusion is unsupported by the evidence or the evidence before her
was insufficient to support the conclusion she reached.
[21] I align myself to
the decision in the unreported case of Sil Farming CC t/a
Wigwan v CCMA (JR 3347/2005), where Van
Niekerk AJ held:
“
[16]
A commissioner arrives at a decision which no reasonable decision
maker could reach if the decision is unsupported by
any evidence, or
by evidence that is insufficient to reasonably justified a decision
arrived at or where the decision maker ignores
award
uncontradicted evidence”.
[22]
In the present case, the evidence of Mathe goes no
further than allege that when he contacted the chairperson
with
the view to discussing with him the britaliser test, the chairperson
informed him, that he would be chairing the disciplinary
hearing
arising from the allegation of him having being drunk at work.
It is from this acknowledgment by the chairperson
that the
commissioner drew the conclusion that the chairperson of the
disciplinary hearing was biased.
[23]
The commissioner ignored in her assessment the reason given by the
chairperson of the disciplinary hearing that he did not
want to speak
to Mathe as he knew he would be chairing the disciplinary hearing.
Had the commissioner applied her mind she
would have found that by
refusing to speak to Mathe about this matter the chairperson of the
disciplinary hearing was seeking to
eliminate any apprehension of
bias from either of the parties.
[24]
Except for the above evidence there was no other evidence that
suggested that the chairperson of the disciplinary hearing was
privy
to other details regarding the merits of the case. Thus the
conclusion by the commissioner that the chairperson of
the
disciplinary hearing was bias because he was privy to the merits of
the case is nothing but speculation on the part of the
commissioner.
[25]
The other piece of evidence which the commissioner ought to have
taken into account in assessing whether or not the chairperson
of the
disciplinary hearing was biased is the fact that Mathe who had been
represented by Mr Sithole of SACCAWU never raised an
objection or
complaint at the disciplinary hearing that the chairperson was biased
because he had prior knowledge of the case.
There was also no
application for the recusal of the chairperson for the same reason.
[26]
Speculation on an issue by a commissioner is enjoined to determine
that issue, is in my view indicative of the commissioner
failing to
perform his or her duties as required by the
Labour Relations Act.
Thus
had the commissioner appreciated the task before her, she would
have realised that the test for biased was an objective test and
that
there was insufficient evidence to come to the conclusion that Mathe
had a reasonable apprehension of bias. The commissioner
would
have further found that Mathe had a fair hearing because the
chairperson was open- minded and impartial.
[27]
The second ground upon which the applicant relied on in challenging
the conclusion of the commissioner is based on the finding
that the
second britaliser test produced a negative result.
[28]
The commissioner’s conclusion was based on the evidence of the
two security officers who testified during the disciplinary
hearing
and not at the arbitration hearing. The commissioner relied on
their evidence as contained in the transcript of the
disciplinary
hearing which was presented at the arbitration hearing. The two
security officers never testified before the commissioner.
[29] The two security
officers had testified at the disciplinary hearing that there were
two tests conducted on the day in question.
They confirmed that
the first test was positive and the second negative. A print
out was produced for the first and not for
the second test. The
commissioner after considering the evidence of the two security
officers in the absence of a print out for
the alleged second test
concluded as follows:
“
Mr
Scheiker conceded that there were two security officers who, during
the disciplinary hearing testified that there was indeed
a second
test that was conducted and the results were negative. He
stated that he did not attach much weight to the testimony
as there
was no documentary proof to this effect. Mr Mathe correctly
responded to the question regarding the outcome of the
print out of
the second test that it was not his responsibility/job description to
ensure that the print out is done by the security
officers. The
record of the disciplinary hearing show that there was no reason
advanced by the security officers for failure to
print the result.
There was no reason given by the respondent party why would the
custodian of the alcohol policy give a false
testimony during the
enquiry. Save to ask for a print out to that effect their
evidence was also not challenged”.
[30]
It is evidently clear from the above quotation that the commissioner
was influenced and placed emphasis on the evidence of
two security
officers who as indicated earlier on testified during the
disciplinary hearing but not at the arbitration hearing.
The
commissioner was also influenced in her decision by the fact that no
print out of the second test was produced at the hearing.
The
commissioner in this regard found that the chairperson failed to
attach weight to this evidence. In this regard the commissioner
placed the onus to explain the absence of the print out of the second
test on the applicant despite the fact that it was Mathe
who alleged
the existence thereof.
[31]
In my view, in arriving at this conclusion the commissioner failed to
apply, in a fundamental way the rules of evidence and
thereby denying
the applicant a fair hearing.
[32]
The case of the applicant in seeking to discharge its onus in showing
that the dismissal was fair was founded on the evidence
that only one
test was conducted. The case of Mathe on the other hand was
that there were two test conducted. The second
test according to him
was conducted on his return from the change room. There is no
evidence as to the time spent in the
change room by Mr Mathe after
undertaking the first test. There is also no evidence by Mr Mathe
explaining why there was no print
out of the second test.
[33]
In relation to the print out of the alleged second test the
chairperson of the disciplinary hearing testified during
cross
examination that he enquired from Mathe whether he did ask for the
print out and his answer was in the negative. The assessment
by the
commissioner would have been sustainable had there been evidence
before her that Mathe, requested the disclosure of the
print out of
the second test (if at all this test was ever done), and was refused.
[34]
The commissioner also accepted the evidence that the second test was
done based on the transcript of the disciplinary hearing.
The
commissioner accepted this evidence despite the fact that the two
security officers who testified during the disciplinary hearing
did
not testified before her and there was no evidence that the parties
had agreed that the record of the disciplinary hearing
would serve as
evidence at the arbitration hearing.
[35]
It is therefore my view that the conclusion by the commissioner that
the second test was done was unreasonable because she
arrived at this
conclusion on the evidence which was not properly before her. There
was also no explanation given by Mathe why
he failed the first test
and why he passed the second test. And more importantly the
commissioner does not explain why she
disregarded the evidence of the
first britaliser test which constituted evidence properly placed
before her and which was common
cause.
[36]
In the circumstances of this case I am of the view that the dismissal
of Mathe was both substantively and procedurally fair.
[37] The dictates of law
and fairness do not require that cost order be issued.
[38] For the above
reasons, the commissioner’s award stand to be reviewed and set
aside. In my view there is no point
in remitting this matter
back to the CCMA as there is sufficient information upon which this
court can determine the matter.
I according make the following
order:
1.
The first respondent’s award issued
under case number MT 5909-04 and dated 29 April 2005 is reviewed and
set aside.
2.
The award of the commissioner is
substituted with the following award:
(a)
“
The dismissal of Mr Mathe is both
substantively and procedurally fair”
3.
There is no order as to costs.
_______________
MOLAHLEHI
J
DATE
OF HEARING :
06 DECEMBER 2007
DATE OF JUDGMENT
: 16 MARCH 2008
APPEARANCES
FOR
THE APPLICANT : DEON MASHER
INSTRUCTED
BY : BELL DE WAR &
HALL ATTORNEYS
FOR
THE RESPONDENT: SAC
CAWU (UNION OFFICIAL)
INSTRUCTED BY
: SACCAWU