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[2009] ZALCJHB 20
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Mollo v Metal And Engineering Industries Bargaining Council and Others (JR1147/03) [2009] ZALCJHB 20; (2010) 31 ILJ 971 (LC) (22 September 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NO: JR 1147/03
In
the matter between:
ROBERT
MOTELA MOLLO
APPLICANT
and
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
1
ST
RESPONDENT
PAT
STONE N.O
2
ND
RESPONDENT
JEANNE
GAYLARD N.O
3
RD
RESPONDENT
ARCEKIR
– MITTAL SA LIMITED
4
TH
RESPONDENT
(Previously
known as iscor flat steel)
JUDGMENT
NYATHELA AJ
Introduction
[1]
This is an application for review in terms
of section 145 of the Labour Relations Act 66 of 1995 (the LRA) of an
arbitration award
issued by the second respondent on 26 May 2003.
[2]
In terms of the award, second respondent
ruled that: “
The dismissal of the
applicant by the respondent on 07/05/02 is upheld as being
substantively fair”.
[3]
It is this award which applicant seeks to
review and have it set aside.
[4]
The application is opposed by fourth
respondent
The parties
[5]
The applicant is Robert Motela Mollo a
former employee of the fourth respondent.
[6]
The first respondent is Metal and
Engineering Industries Bargaining Council, a statutory body
established in accordance with the
provisions of the LRA.
[7]
The second respondent is Pat Stone N.O, a
commissioner employed as such by the first respondent. The second
respondent is cited
in his capacity as a commissioner who arbitrated
the matter.
[8]
The third respondent is Gaylard N.O a
commissioner employed as such by the first respondent. The third
respondent is cited in her
capacity as a commissioner who initially
presided on the arbitration hearing.
[9]
The fourth respondent is Iscor Flat Steel,
a juristic person duly registered and incorporated in accordance with
the company laws
of the Republic of South Africa.
The facts
[10]
The applicant was employed by the fourth
respondent as a locomotive driver. Following an incident of 21 March
2002, applicant was
charged with misconduct.
[11]
The following charges were preferred
against applicant: “
1. Committing
fraud (by allegedly faking an incident / injury). 2. Abuse of medical
benefits (by reporting for light duty while
not being officially
booked off light duty). 3. Contravention of applicable legislation or
safety regulation”.
[12]
A disciplinary hearing was conducted.
Applicant was found guilty on all the charges. He was dismissed form
duty on 07 May 2002.
Applicant appealed and the appeal was dismissed
on 30 May 2003.
[13]
On 19 June 2002 applicant referred a
dispute concerning his alleged unfair dismissal to the first
respondent. The dispute was conciliated
on 19 September 2002,
remained unresolved and was subsequently referred to arbitration. On
27 November 2002 applicant’s case
was scheduled for arbitration
hearing on 03 February 2003 before the third respondent. Both
applicant and fourth respondent presented
their opening statements
before third respondent. Both parties together with third respondent
also narrowed the issues after presenting
opening statements.
[14]
The arbitration was then postponed after
issues were narrowed and scheduled again for the 02
nd
& 3
rd
April 2003.
[15]
On the 02
nd
April 2003 third respondent did not attend the arbitration hearing.
Second respondent instead attended the hearing and informed
the
parties that he will proceed and arbitrate the matter. The applicant
objected to second respondent conducting the arbitration
contending
that the matter was part heard. Second respondent nonetheless
proceeded to arbitrate the matter.
[16]
Applicant seeks to review the award and
have it side aside.
Grounds for review
[17]
The applicant’s grounds for review
are amongst others the following:
(a)
The second respondent should not have
arbitrated the dispute as the case was part heard before 3
rd
respondent.
(b)
The second respondent exceeded his powers
when he disallowed Khumalo as a witness on behalf of the applicant in
that despite him
(Khumalo) having worked on a different shift,
Khumalo’s evidence as to what the handover book contained and
whether or not
he knew and had informed the fourth respondent, via
its planner that there was a brake problem with locomotive Number 8
and / or
that it was meant to go to service was critical to the
applicant’s case at arbitration. The ruling by the second
respondent
deprived applicant of an opportunity to adduce evidence
proving its defence that 4
th
respondent knew that the locomotive in question had brake problems
and that this had been reported by Khumalo to the planner.
Analysis
[18]
The first issue which I must deal with is
whether the matter which was before the second respondent was part
heard or not.
[19]
Applicant argued that opening statements
also form part of evidence in the wider sense because it is in the
opening statements that
parties set out their versions and the
testimony of their witnesses. The commissioner has a duty to stop the
proceedings where
he is advised that the matter is part-heard. There
was no need for the commissioner to hear arguments on the issue.
[20]
Fourth respondent argued that in the High
Court, an opening address has the status of argument and has no
binding effect unless
an admission of fact is made. In
Standard
Bank of SA v Minister of Bantu Education
1966 (1) SA 229
(N) at
242H-243A
the court stated the
following regarding opening statements: “
...it
seems undesirable that counsel’s opening of a case should be
accorded decisive effect in regard to proof of facts necessary
to a
party’s case or defence. Opening remarks are, in common with
counsel’s closing argument, usually not recorded.
If such
matters are to be used in coming to the conclusion in a judgment,
they must be set out therein and used, in the ordinary
course of
events, with considerable circumspection”.
The
same principle should apply to arbitration proceedings.
[21]
It is common cause that parties presented
their opening statements before 3
rd
respondent. I agree with the fourth respondent’s submissions
regarding the status of opening statements. However in this
case,
parties proceeded and engaged in the process of narrowing the issues.
On page 26 line 25 of the record before third respondent,
the
following is recorded: “
Commissioner:
...we are going to spend some time narrowing the issues”.
In
the process of narrowing the issues, it is clear from the record that
certain admissions were made regarding the nature of evidence
to be
led and issues which were not in dispute. Furthermore, third
respondent on page 22 line 7 stated the following: “
...we
are going to then have to part hear this and I will obviously have to
start the 1:30 matter”.
[22]
The
Standard
Bank
case referred to above deals with
the weight accorded to opening and closing statements only. The
difference between the
Standard Bank
case and the case at hand is that, the
third respondent did not only listen to opening statements but
proceeded and engaged parties
in the process of narrowing the issues.
Although no evidence was led, parties made certain concessions
regarding the nature of
evidence which was to be led and evidence
which was irrelevant and not necessary to call witnesses to support
the allegations.
Furthermore as stated above, even the third
respondent was of the view that the matter was part heard. I am
satisfied that second
respondent should not have recommenced with the
case as it was part heard.
[23]
I must mention further that the approach in
the
Standard Bank
case
is not entirely appropriate to arbitration proceedings. This view is
informed by the fact that in the
Standard
Bank
case, the court was dealing with a
case where pleadings have been exchanged and the admissions were
contained in the pleadings.
It was therefore easy for any party to
determine from the pleadings and possibly pre-trial minutes what was
admitted and what was
disputed. It is in that context that the court
held that opening statements should be accorded less weight and be
used with circumspection.
[24]
In arbitration proceedings like the current
one where there are no pleadings and the parties not having entered
into a pre-arbitration
minute, opening statements are a first
opportunity for parties to make certain admissions and place certain
issues in dispute as
well as the type of evidence which will be led
and on what issues the evidence will be required, it will be
inappropriate for that
case to proceed before a different arbitrator.
[25]
In my view, such a case is part heard since
apart from what the arbitrator has recorded as admissions, issues in
dispute and the
type of evidence which the parties have undertaken to
lead, there are no pleadings from which a different arbitrator will
be able
to determine what has been admitted or disputed. I therefore
conclude that the
Standard Bank
case is distinguishable from the current case. In my view, this
matter was part heard before third respondent.
[26]
The second issue which I must determine is
whether second respondent exceeded his powers by refusing to allow
applicant’s
witness (one Khumalo) to present evidence at the
arbitration hearing.
[27]
Applicant’s representative argued
that second respondent exceeded his powers when he disallowed Khumalo
as a witness for the
applicant. Despite Khumalo having worked a
different shift, his evidence regarding the contents of the handover
book was important.
Second respondent’s ruling meant that the
applicant’s defence that the fourth respondent knew that the
locomotive was
having brake problems and that this has been reported
to the planner by Khumalo was nullified.
[28]
Respondent argued that Khumalo was not
present when the incident occurred and that his evidence could not
have contributed anything
about the incident itself. The
commissioner’s decision is not one that a reasonable decision
maker who wants to decide the
dispute quickly and fairly and with a
minimum of legal formalities could not reach.
[29]
Page 291 of the transcribed record provides
the following: “
Mr Khumalo
(sworn-in)
EXAMINATION IN CHIEF
Maake:
What position
are you employed
at, at the Respondent?
Khumalo:
I am a Loco driver working at Iscor. I have
22 years at Iscor Company
Maake:
On 23 March
2002 what shift
were you on?
Khumalo:
I was on the shift from 14h00 to 22h00
Van
Vuuren:
I object to the
use of this witness as he was not even on duty at the
time of the alleged incident.
Comm. Stone:
Objection sustained this witness is unnecessary”.
[30]
Section 138(1) of the LRA provides the
following: “
The commissioner may
conduct the arbitration in a manner that the commissioner considers
appropriate in order to determine the dispute
fairly and quickly, but
must deal with the substantial merits of the dispute with the minimum
of legal formalities”.
[31]
In the unreported case of
Sondolo
IT (Pty) Ltd v Gordon Howes and others case number JR321706,
Basson J held that: “
Section
138(1) of the LRA thus places two distinct but related obligations on
the commissioner. The first is to determine the manner
in which the
arbitration will be conducted. This discretion will be exercised
bearing in mind the legislative instruction to determine
the dispute
fairly and quickly. Secondly, the commissioner must deal with the
substantial merits of the dispute. In deciding the
matter the
commissioner may rule on the evidence which may be presented to the
arbitration and may also restrict the range of issues
which parties
are required to give evidence”.
[32]
In the present case, second respondent’s
decision to disallow Khumalo as a witness is a decision made within
the powers conferred
to him in terms of section 138(1) of the LRA.
However, in making the decision, second respondent failed to afford
the applicant
a chance to respond to the objection before he could
make the decision. Second respondent did not state the reason why he
considered
Khumalo’s evidence unnecessary. I agree with the
applicant that the fact that Khumalo did not work on the same shift
with
the applicant does not mean that his evidence would be
irrelevant. Second respondent should have allowed applicant an
opportunity
to explain the relevance of bringing Khumalo as a witness
before making a ruling whether the witness was necessary or not. 2
nd
respondent therefore failed to act fairly in conducting the
arbitration proceedings since he made a ruling to disallow a witness
without first allowing the party who called that witness to motivate
the relevance of the witness’s evidence. I am satisfied
that
second respondent has committed gross irregularity by making a
decision on the objection raised without first affording the
applicant an opportunity to show the relevance of the evidence he
intends leading. Moreover, 2
nd
respondent did not even provide reasons for his ruling and thus the
ruling was capricious and arbitrary.
[33]
The test for review of arbitration
proceedings has been stated in the case of
Sidumo
& another v Rustenburg Platinum Mines Ltd & others (2007) 28
ILJ 2405 (CC)
at para 119 as follows:
“...
having regard to the reasoning
of the commissioner, based on the material before him, it cannot be
said that his conclusion was
one that a reasonable decision maker
could not reach?”.
[34]
In this matter, I have already come to the
conclusion that the matter was part heard when second respondent
presided over it. Furthermore,
I have also come to the conclusion
that the second respondent committed a gross irregularity when he
disallowed Khumalo as a witness
stating that the witness was
unnecessary. In my view, given the irregularities mentioned above,
the decision reached by the 2
nd
respondent is not one which a reasonable decision maker could have
reached given the materials which were before him.
[35]
In the light of the above analysis, I am of
the view that second respondent’s award stands to be reviewed
and set aside.
Order
[36]
In the premises I make the following order:
(i)
The award issued by the second respondent
under case number MENT.1304 on 26 May 2003 is hereby reviewed and set
aside.
(ii)
The matter is remitted to the first
respondent to be heard by another commissioner other than the second
and third respondents.
(iii)
Fourth respondent is ordered to pay the
costs of this application.
_______________
Nyathela
AJ
Date
of Hearing :
22 June 2009
Date
of Judgment :
22 September 2009
Appearances
For
the Applicant :
R. Sutherland SC
For
the Respondent: G.
Pretorius SC