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[2010] ZALCJHB 38
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Munnik Basson Dagama Attorneys v Commission for Conciliation Mediation And Arbitration and Others (JR1153/08) [2010] ZALCJHB 38 (3 December 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
CASE
NO: JR1153/08
In
the matter between:
MUNNIK
BASSON DAGAMA ATTORNEYS
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION First
Respondent
ROBERT
MUDAU
N.O. Second
Respondent
BIANCA
PADAYCHEE Third
Respondent
JUDGMENT
FRANCIS
J
Introduction
1.
The third respondent was employed by the applicant. After she
was dismissed, she referred an unfair dismissal dispute to
the first
respondent, the Commission for Conciliation, Mediation and
Arbitration (the CCMA) for conciliation and arbitration.
The
second respondent (the commissioner) found that her dismissal was
substantively fair but procedurally unfair and awarded her
three
months’ compensation.
2.
The applicant brought an application to review the commissioner’s
finding that the dismissal was procedurally unfair.
The third
respondent brought a condonation and review application to review the
commissioner’s finding that the dismissal
was substantively
fair. Her condonation application was dismissed by Molahlehi J.
3.
This judgment deals with the applicant’s application for review
which was opposed by the third respondent.
The background
facts
4.
The applicant conducts business as a debt collection agency.
The third respondent was employed by the applicant as a letter
administrator on 1 March 2007. On 7 September 2007 she was
charged with the following misconduct:
“
NATURE
OF COMPLAINT
1.
failed to activate the letters for ASC WW VISA 2 (498) and ASC
Homechoice (499);
2.
failed to correct the PTP due date on a Metropolitan PTP letter;
3.
failed to approve the test data letter samples provided by Laser
Facilities facility
proofs on the 7th and 8th August 2007;
4.
failed to identify and rectify the errors in the Botswana
letterhead.”
5.
The disciplinary hearing proceeded before the chairperson for three
days. At the commencement of the second day, the applicant’s
representative brought an application to amend the charge sheet
by categorising the four counts of alleged misconduct as
gross
negligence. The representative said that an error had occurred
in the preparation of the notice to attend the
disciplinary
enquiry in that the nature of the charges had not been fully
described. The charges were not described as ‘gross
negligence. She requested the chairperson to supplement the
description of the charges by inserting the following line above
the
specific charges: “
You are charged
with gross negligence in that you ...”.
The third respondent objected to the proposed amendment. The
chairperson granted the amendment to the charge sheet
since the
previous evidence had dealt with the particular allegations of a
failure to perform certain tasks, and the evidence would
probably not
have differed had the charge sheet labelled the failures as ‘gross
negligence’ from the outset.
He offered both parties and
adjournment to consider their position, and if necessary to present
any further evidence that may have
become relevant due to the
labelling of the charges as gross negligence. Both parties
elected not to adjourn but to continue
with the hearing.
Further evidence was then presented. The hearing continued, and
eventually the third respondent was
found guilty of the four charges
of misconduct. After considering aggravating and mitigating
circumstances the chairperson
dismissed the third respondent on two
weeks notice.
6.
The third respondent thereafter referred an unfair dismissal dispute
to the CCMA. After evidence was heard, the commissioner
issued
an award and found that the dismissal was substantively fair but
procedurally unfair and awarded her three months compensation.
The grounds of
review
7.
The applicant felt aggrieved with the commissioner’s finding on
procedural unfairness and brought this application.
The
applicant contended that the award is defective since it contains a
finding of procedural unfairness and this portion stands
to be
reviewed and set aside in terms of section 145 of the Labour
Relations Act 66 of 1995 (the Act) on one or more of the following
grounds:
7.1
the commissioner’s finding of procedural unfairness is not
rationally justifiable,
having regard to the evidence placed before
him at the arbitration and the reasons contained in his award; and/or
7.2
the commissioner committed a gross irregularity in his capacity as
commissioner
inter alia
in that he failed to apply his mind to
the evidence before him; and/or
7.3
the commissioner exceeded his powers by awarding the third respondent
three months’
remuneration as compensation in circumstances
where the award of such compensation was neither just nor equitable.
Analysis of the
evidence and arguments raised
8.
The main issue to be decided on review is whether the commissioner’s
finding that the change of the charge sheet rendered
the dismissal
procedurally unfair, is reviewable. The third respondent
contended that the commissioner did not commit any
reviewable
irregularity and did not exceed his powers as alleged by the
applicant. Further that the chairperson of the disciplinary
hearing was impartial.
9.
It is trite that in civil proceedings, amendments to pleadings and
documents can be sought at any stage of the proceedings.
An
amendment may also be granted at any stage before judgment on such
other terms as to costs or other matters as the court deems
fit.
An amendment may also be allowed on appeal where no prejudice would
thereby be occasioned for instance where the issues
sought to be
introduced by the amendment have been fully canvassed at the trial.
In this regard see
Schmidt Plant Hire
(Pty) Ltd v Pedrelli
1990 (1) SA
398
(D) at 408;
David Hersch
Organisation v Absa Insurance
Brokers
1998 (4) SA 783
(T) at 787 and
Tolstrup
NO v Kwapa NO
2002 (5) SA 73
(W) at
77-78. The granting or refusal of an application for an
amendment of a pleading is a matter for the discretion of
the court,
to be exercised judicially in the light of all the facts and
circumstances before it. An amendment will be allowed where
this can
be done without prejudice to the other party. In this regard
see
GMF Kontrakteurs (Edms) Bpk v
Pretoria City Council
1978 (2) SA 219
(T) at 222B-D and
Wavecrest
Sea
Enterprises (Pty) Ltd v Elliot
1995
(4) SA 596
(SE) at 598I-J.
10.
The principles referred to in paragraph 9 above applies equally in
labour matters. Nothing prevents an employer to amend
the
charge sheet before a finding is made. The amendment sought and
granted by the chairperson of the disciplinary hearing
was to
categorise the charges as gross negligent. The commissioner in
the award did not find that the correction of the error
in the notice
of enquiry changed the enquiry, severity and seriousness of the
charges against the third respondent. He found
that the
dismissal was procedurally unfair on the following basis:
“
3.3
The next question to deal with is that of procedure. That is whether
or not the dismissal was effected
in accordance with a fair
procedure. The applicant argued that the amendment of the
charges after the evidence was led by
both parties rendered the
disciplinary hearing to be procedurally defective. I share the
same view. This action by
the chairperson seems to confirm the
applicant’s submission that he was not impartial.”
11.
I share the sentiments expressed by Van Niekerk AJ (as he then was)
in
Avril Elizabeth Homes for the Mentally Handicapped v CCMA &
others
(2006) 27 ILJ 1644 (LC) at 1651-1652:
“
........
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.”
12.
It is clear from the evidence led at the arbitration proceedings that
the applicant had on the second day of the disciplinary
proceedings
brought an application to amend the charge sheet. The
applicant’s representative explained how the error
came about.
It centred around a categorisation of the charge sheet to read ‘gross
negligence’. The third
respondent had objected and after
arguments were heard, the amendment was allowed. The labelling
of particular charges of
misconduct as gross negligence did not in
any way add to the complexity or substance of the charges. The
focus must always
be in the factual allegations in the charge sheet,
and not their categorisation. The chairperson of the
disciplinary hearing
afforded both parties an opportunity to address
him on the proposed amendment. He allowed them to adjourn to
consider their
position and to present any further evidence should
they wish to do so, following the amendment to the charge sheet.
The
position would have been different if the chairperson did not
allow the parties to make representation or to lead further
evidence.
13.
It is clear that the finding by the commissioner that the amendment
to the charge sheet caused procedural unfairness, suggests
that he
misunderstood the test for procedural fairness in the disciplinary
hearing and amounts to a material error of law which
constitutes a
reviewable irregularity and has exceeded his power. In this
regard see
Telcordia Technologies Inc v
Telkom Sa Ltd
[2006] ZASCA 112
;
(2007) (3) SA 266
SCA at
paragraphs 72-73.
14.
The test on review is whether the decision made by the commissioner
is one that a reasonable decision-maker could not reach.
No
reasonable commissioner could have found that the amendment to the
charge sheet was procedurally unfair. In addition,
the second
respondent clearly misconstrued the legal standard against which
procedural fairness must be measured, and thereby committed
a gross
irregularity in the proceedings. The commissioner’s
remark in the award that the actions of the chairperson
in amending
the charge sheet ‘
seem to confirm
the applicant’s submission that he was not impartial’
shows that he failed to properly apply his mind to the issue of
procedural fairness.
15.
It follows that the portion of the award which the commissioner found
that the third respondent’s dismissal was procedurally
unfair,
should be reviewed and set aside. No purpose will be served to
refer the dispute to the CCMA since this Court is
an excellent
position to make a finding about the procedural fairness of the
dismissal.
16.
It is clear from the evidence led that the dismissal was procedurally
fair. The third respondent was informed of the charges
against
her, she was provided with an ample opportunity to state her case,
and the matter was heard by an impartial chairperson.
She was
given an opportunity to make representation about the amendment,
allowed an opportunity to consider her position and to
lead further
evidence etc. The dismissal was procedurally fair.
17.
I do not believe that this is a matter where costs should follow the
result.
18.
In the circumstances I make the following order:
18.1
The finding of procedural unfairness and the award of three months’
compensation in the arbitration
award made by the second respondent
on 2 April 2008 under case number GAJB32185-07 is reviewed and set
aside and is replaced with
an order that the third respondent’s
dismissal was procedurally fair.
18.2
There is no order as to costs.
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANT
: G
FOURIE INSTRUCTED BY EDWARD NATHAN SONNENBERGS
FOR THIRD
RESPONDENT
:
ATTORNEY N P VOYI of Ndumis P. Voyi Attorneys
DATE
OF HEARING
:
27
OCTOBER 2010
DATE OF
JUDGMENT
: 3
DECEMBER 2010