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[2008] ZALCJHB 57
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Leboho v Commission for Conciliation Mediation And Arbitration and Others (JR365/06) [2008] ZALCJHB 57 (27 March 2008)
NOT
REPORTABLE
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO. JR 365/06
In
the matter between:
PATRICK
LEBOHO
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
SIPHO
RADEBE
Second
Respondent
SOUTH
AFRICAN REVENUE
SERVICES
Third
Respondent
JUDGMENT
A
VAN NIEKERK, AJ
Introduction
1.
Mr Leboho (to whom I shall refer as ‘the
Applicant’), was employed by the Third Respondent (SARS) at the
OR Tambo International
Airport. He was dismissed in 2002 after being
found guilty of extorting an amount of USD 600 from a visiting
Chinese national.
The dismissal was confirmed after an appeal
hearing. Mr Leboho referred a dispute concerning an alleged unfair
dismissal to the
CCMA. On 4 August 2005, the Second Respondent (the
commissioner) handed down an arbitration award, upholding the
Applicant’s
dismissal. In these proceedings, the Applicant
seeks to have the award reviewed and set aside.
2.
The factual background to the dispute is
the following. On 30 August 2002, a Mr Chijen (“Chijen”)
arrived at the airport,
on a flight from Singapore. Chijen claimed
that on arrival at terminal 1, he had been searched and found in
possession of five
passports belonging to friends in South Africa.
The Applicant and two other persons told Chijen that his possession
of the passports
was an offence, and that he could be fined.
Chijen gave the men the sum of USD 600, for which he did not receive
a receipt.
Chijen complained, and was taken to the SARS office at the
airport, where he positively identified the Applicant as one of the
employees who had extorted money from him. SARS convened a
disciplinary enquiry, at which Chijen gave evidence. Chijen again
positively
identified the Applicant as one of the persons who had
extorted money from him. He also laid criminal charges against the
Applicant,
which were later withdrawn by the prosecutor.
3.
The arbitration hearing was held on 14 and
22 July 2005. The commissioner records that only the substantive
fairness of the dismissal
was challenged. I do not intend to record
all the evidence given at the arbitration but in summary, SARS’
main witness, a
Ms Tripmaker, testified that Chijen had been
brought to her office, that she gave him two photograph albums, and
that he identified
the Applicant. She also testified that it was
possible for the Applicant to have bypassed the security measures in
place by moving
from one terminal to the other, without detection.
The Applicant denied having met Chijen prior to his disciplinary
enquiry, or
that he had demanded money from him. On the day in
question, the Applicant contended that he had been deployed at
terminal 2, at
that the only time that he was at terminal 1 was when
he reported for work, before 6am.
4.
In his analysis of the evidence, the
commissioner concluded that the evidence of SARS’s witnesses
was credible, and that he
had no reason to doubt their testimony. The
commissioner accepted that the identification of the Applicant from
photograph albums
was fair, and that it was probable that the
Applicant had moved from terminal 2 to terminals 1 where he and his
colleagues extorted
money from Chijen.
5.
The commissioner considered the primary
issue raised in this Court, namely, the admission of hearsay
evidence, being evidence given
by Tripmaker as to what Chijen had
said at the various stages of the investigation and disciplinary
process. The commissioner noted
that Chijen’s unavailability at
the arbitration was not of SARS’s making. That notwithstanding,
the Applicant had been
afforded an opportunity to cross-examine
Chijen at the disciplinary enquiry, and he had been able to deal with
all aspects of Chijen’s
evidence. On this basis, the
commissioner ruled that the hearsay evidence surrounding Chijen
should be admitted. He concluded that
the Applicant had been fairly
dismissed.
6.
In these proceedings, Mr Luthuli (an
official of the United Peoples Union of South Africa) represented the
Applicant. Mr Luthuli
raised two primary arguments during the course
of his submissions. The first related to the withdrawal of criminal
charges against
the Applicant, the second to the admission of hearsay
evidence in the arbitration proceedings.
7.
As I understood him, Mr Luthuli submitted
that the withdrawal of criminal charges against the Applicant, based
as they were on the
same facts what formed the subject of the
disciplinary enquiry, ought to have been dispositive of the case
brought against the
Applicant by his employer. There is no merit in
this submission. It is trite that criminal proceedings and
disciplinary enquires
are discrete processes, with different
objectives. The fact that criminal charges against the Applicant were
withdrawn is not relevant
to either disciplinary or arbitration
proceedings. Criminal charges are withdrawn for a variety of
reasons, not all necessarily
relevant to the merits of those charges.
8.
In relation to the decision by the
commissioner to admit hearsay evidence, Mr Luthuli submitted that
hearsay evidence was always
inadmissible in arbitration proceedings
conducted under the auspices of the CCMA, and that the commissioner’s
award should
be set aside for this reason. There is similarly no
merit in this submission. Section 3 of the Law of Evidence Amendment
Act 45
of 1988 (the Evidence Act) which provides as follows:
‘
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence
at criminal or civil proceedings, unless:
(a)
each party against whom the evidence is to be adduced agrees to the
admission thereof as
evidence at such proceedings;
(b)
the person upon whose credibility
the probative value of such evidence depends, himself testifies at
such proceedings; or
(c)
the Court, having regard to –
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence
is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not
given by the person upon whose credibility the probative value of
such evidence depends;
(vi)
any prejudice to a party which the
admission of such evidence might entail; and
(vii)
any other factor, which should in
the opinion of the court be taken into account, is of the opinion
that such evidence should be
admitted in the interest of justice.
(2)
………..
(3)
…………..
(4)
For the purpose of this section:
“
hearsay
evidence” means evidence, whether oral in writing, the
probative value of which depends upon the credibility of any
person
other than the person giving such evidence;”
9.
In
Southern Sun Hotels (Pty) Ltd v SA
Commercial Catering & Allied Workers Union & Another
(2000)
21
ILJ
1315 (LAC), the Labour Appeal Court said the following (at para 14):
’
The
legislature also decided that the test whether or not hearsay
evidence should be admitted would be whether or not in a particular
case the Court thought it would be in the interest of justice that
such evidence to be admitted …
The
factors which a Court must take into account in order to determine
this are those which are set out in s 3(1)(c)(i) –
(vii) which
includes any other factor which, in the opinion of the Court should
be taken into account.’
10.
In the present instance, the interests of justice and the factors
listed in s 3 (1) (c) justified the admission of hearsay evidence
by
the commissioner. First, in relation to the nature of the
proceedings, arbitrations conducted under the auspices of the CCMA
are informal. Section 138 of the LRA enjoins a commissioner to
determine a dispute with the minimum of legal formality. This does
not imply that a commissioner has carte blanche to admit hearsay
evidence, but it is a factor that must necessarily be taken into
account when a party seeks to admit evidence that is hearsay. The
nature of the evidence, being viva voce evidence by Tripmaker,
clearly points to the Applicant as one of the persons who had
extorted money from Chijen. The evidence clearly establishes that
the
Applicant was identified in the photo album and in person. He
was afforded an opportunity to cross-examine SARS’s
witnesses
and Chijen at the disciplinary hearing but failed to disprove
Chijen’s contention.
11.
Although Chijen did not testify in the
arbitration proceedings, he had testified at the disciplinary
hearing. At the disciplinary
hearing, Chijen gave evidence in
the presence of the Applicant and the Applicant was afforded an
opportunity to cross-examine Chijen.
Chijen did not give evidence at
the arbitration hearing because by the time those proceedings had
been convened, he had returned
to China, and SARS was not in a
position to determine his whereabouts or compel his attendance at the
arbitration.
15.
In
Rand
Water v Legodi NO & others
(2006)
27
ILJ
1933
(LC), the person who was the complainant in the matter which gave
rise to the charges levelled against the employee concerned
testified
at the disciplinary hearing, but not at the arbitration hearing. The
arbitration hearing was postponed in order to obtain
her presence and
testimony. Tracing agents employed were unsuccessful in tracing
her whereabouts, and the rescheduled arbitration
continued without
her. The Court concluded:
‘…
.
The fact that arbitration proceedings are regarded as hearing de novo
does not mean that the legislation permitting hearsay in
certain
circumstances would not apply in arbitration hearings … the
decision-maker or truer of fact, faced with the same
situation as the
arbitrator was faced with in this case, had a discretion to permit
hearsay evidence or to exclude it ….”
…
in
terms of s 3(1) of the Amendment Act, hearsay evidence may be
permitted in certain circumstances such as when the relevant witness
is not available and it would be in the interest of justice to do so.
Once the decision is made to admit the evidence, then the
weight to
be given to the particular testimony depends on the probabilities and
credibility of the witness …
…
.
the arbitrator erred in law by rejecting the transcript entirely as
hearsay, and then selectively relying on it to make certain
findings
in favour of Mauna (employee). The arbitrator’s error
resulted in an unfair trial
17.
The commissioner's decision to admit hearsay evidence and to uphold
the Applicant’s dismissal must be measured against
the standard
established in
Sidumo v R
Rustenburg Platinum Mine
[2007]
12 BLLR 1097
(CC). In that case, the Constitutional Court developed
what it termed a “reasonable decision-maker test”. On
this approach,
this Court is entitled to interfere with an
arbitration award only if the arbitrator makes a decision that a
reasonable decision-maker
could not reach. The Labour Appeal
Court has recently held (see
Edcon
Limited v Pillemer N.O. & others
(DA4/06)) that this “
boils down to
saying the decision of the commissioner is to be reasonable ….
meaningful strides are taken to refocus attention
on the supposed
impartiality of the commissioner as a decision-maker at the
arbitration whose function it is to weigh all the relevant
factors
and circumstances of each case in order to come up with a reasonable
decision. It is in fact the relevant factors and the
circumstances of
each case, objectively viewed, that should inform the element of
reasonableness or lack thereof
”
(see paragraph 21 of the judgment). I understand this to mean that
this Court is required to determine whether the arbitrator’s
decision was reasonable or not having regard particularly to the
reasons given for the decision. In this regard, the Court must
remain
alive to the distinction between appeals and reviews and the
significance of that distinction. The Court’s function
primarily is to ensure that decisions made by arbitrators exercising
their functions under the Labour Relations Act fall within
the bounds
of reasonableness (
see Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004
(4) SA 490
(CC)).
18.
In
Palaborwa Mining Company Limited v
Anthony James Cheetham & 2 others
(unreported
JA 7/2006) the Labour Appeal Court elaborated further on the
significance of the
Sidumo
judgment,
and its consequences for applications for review brought in this
Court. The Court confirmed that the standard to be applied
is whether
a decision reached by a commissioner is one that a reasonable
decision-maker could not reach. The Court referred
further,
with approval, to the minority judgment of Ngcobo J who noted that
the intention of the LRA is that “
as
far as is possible arbitration
awards
would be final and would only be interfered with in very limited
circumstances
”.
19.
The Labour Appeal Court observed that the effect of the
Sidumo
judgment was to reduce the scope for a dissatisfied employee
to take his or her dispute further when it comes to an employer’s
decision to dismiss, and reduces the potential for the Labour Courts
to exercise scrutiny over the decisions of commissioners appointed
to
arbitrate in terms of the Labour Relations Act (see page 9 of the
unreported judgment). The Court went so far to suggest that
the test
is now “
very much narrower and simpler …. indeed it
will be rare indeed that the Courts can interfere with a dismissal
which has
been confirmed by a Commissioner
”.
20.
I am satisfied that the arbitrator’s decision to uphold the
Applicant’s dismissal was not one which a reasonable
decision-maker could not reach.
21.
I accordingly make the following order:
1.
the application is dismissed, with
costs;
2.
In terms of section 162(3) of the Labour
Relations Act, the United Peoples Union of South Africa, as the
representative of the Applicant,
is jointly and severally liable with
the Applicant, the one paying the other to be absolved, for the costs
of this application.
_________________________________
ANDRE
VAN NIEKERK,
Acting
Judge of the Labour Court
Date
of Hearing:
27 March 2008
APPEARANCES
For
the Applicant:
Mr Luthuli
UPUSA
For
the Third Respondent:
Advocate E Mokutu
Instructed
by Ndou Attorneys