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[2010] ZALCCT 28
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National Union of Mineworkers and Others v Commission for Conciliation Mediation And Arbitration and Others (C504/06) [2010] ZALCCT 28 (25 March 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN CAPE TOWN
CASE
NO: C504/06
In
the matter between:
NATIONAL
UNION OF
MINEWORKERS
1
ST
APPLICANT
JOHN
SETLHODI
2
ND
APPLICANT
MICHAEL
MGANU
3
RD
APPLICANT
and
COMMISSION
FOR CONCILIATION
MEDIATION AND
ARBITRATION
1
ST
RESPONDENT
COMMISSIONER
SHIRAZ M OSMAN NO
2
ND
RESPONDENT
SUPERSTONE
MINING (PTY)
LTD
3
RD
RESPONDENT
JUDGEMENT
CHEADLE
AJ
Introduction
[1]
This is an application to review an
arbitration award issued by the arbitrator (the second respondent) to
the effect that the dismissal
of the individual applicants was
substantively fair but procedurally unfair attracting a compensation
award of two months salary.
[2]
The individual applicants were dismissed
for sleeping on duty. The applicants denied that they were sleeping
and said that they
were in the kitchen making tea. On the
probabilities, the arbitrator found against them. In so far as the
procedural unfairness
was concerned, the arbitrator found that the
chairperson of the disciplinary enquiry created a perception of bias
by the way she
addressed the individual applicants and their
representative.
[3]
The grounds of review are that the second
respondent committed the following gross irregularities-
3.1
the exclusion of the third applicant from
attending a substantial portion of the arbitration hearing;
3.2
the unjustifiability of the finding that
the employees were not making tea but were sleeping;
3.3
the failure to apply the disciplinary code
which permitted a sanction other than dismissal for serious offences;
3.4
the failure to take into account
inconsistency in the application of the code to other employees who
slept at work;
3.5
the failure to find that the dismissal of a
first offender by a biased chairperson was unfair;
3.6
the award of an unreasonably low amount of
compensation without any rational basis for the procedural
irregularity;
3.7
not affording the applicants an opportunity
to make final arguments.
[4]
There were two bundles indexed and
paginated. The first contained the pleadings. The second contained
the transcript and the documents
submitted by the parties. The first
bundle is cited as P (for pleadings) with the page number following.
If the page is delineated
or paragraphed, the line or paragraph is
then denoted. The second is cited as R (for the Record) with the page
number and any delineation
or paragraphing numbered thereafter.
Accordingly, the provision of the disciplinary code that records its
corrective nature is
cited as R.585.4.3.
Background
[5]
The individual applicants claimed that they
were making tea when Mr Barry Hohne, the mine manager, came upon them
in the kitchen.
[6]
Mr Hohne testified that he arrived at the
paste plant at about 6.45am and found the control room empty and when
he saw the individual
applicants asleep in the kitchen through a
window, he entered the kitchen and confronted them with the fact that
they were sleeping
and not in uniform. Mr Hohne’s testimony was
confirmed by a Mr Dale Hohne, the final recovery manager. Another
witness testified
that she arrived at the plant at 7am and was told
by Mr Barry Hohne that he had found the individual applicants asleep.
She confirmed
that the second applicant was not in uniform. The
arbitrator accepted the evidence of these witnesses as both credible
and probable
– P13.18.
Grounds of review
First
ground of review
[7]
The third applicant was asked by the
arbitrator to leave the arbitration proceedings while the first
applicant was giving evidence
– R233-235. This the Applicants
contend constitutes a reviewable irregularity. The arbitrator is
given the power to conduct
the arbitration in a manner that he
considers to be appropriate to determine the dispute fairly and
quickly – section 138(1)
of the LRA.
[8]
He exercised that power by deciding that
the third applicant should not be present while the second applicant
was giving testimony
in respect of events to which he was party. The
exclusion of an applicant when the respondent witnesses are giving
evidence would
be another matter because a fair trial would require
an applicant the opportunity to instruct a representative in their
questioning
of the witnesses. That does not apply in respect of
co-applicants who are part of the same factual matrix.
[9]
It is disingenuous to state as the second
applicant does in his supplementary affidavit that the third
applicant did not give evidence
‘as he was not aware of what
had been testified to in his absence’ – P22. He may not
have been aware of the second
applicant’s testimony but he was
aware of what took place because he was there. The only implication
that one can draw from
his failure to give evidence is his fear that
he would contradict the evidence of the second applicant.
[10]
Although it may have been better to allow
the third applicant to be present and to record that fact and weigh
his evidence accordingly,
his exclusion during the second applicant’s
testimony is not so material as to vitiate the proceedings.
Second
ground of review
[11]
The second ground of review is that the
arbitrator was not justified in coming to the conclusion that the
individual applicants
were sleeping. The weakness of this attack is
evident from the manner in which it is pleaded – ‘sleeping
workers cannot
boil water for the purpose of making tea’ –
P22.43. That assumes of course that the employee’s testimony is
accepted.
The arbitrator carefully records the evidence of both the
employer and the employee witnesses of what transpired in the kitchen
at 6.45am and finds that on the probabilities that the employer’s
version should be preferred. Although there is a general
attack on
‘contradictory evidence of the employer witnesses’ no
specific instances are cited.
[12]
It is also claimed that it is ‘inherently
improbable’ that the employees were sleeping because there was
gravel on the
driveway, the employees heard the vehicle approaching,
they were making tea and holding a conversation. Apart from the first
fact,
the other allegations constitute the Applicants’ version
of what happened. In so far as the first fact is concerned, the
failure to hear a vehicle approaching on gravel is consistent with
their being asleep.
[13]
In any event, this particular ground was
not pursued with any vigour by Mr Cloete who represented the
Applicants.
Third
ground of review
[14]
This ground of review concerned the
application of the disciplinary code. The argument was that despite
the fact that the code regarded
sleeping on duty as a dismissable
offence (R595), the code provided that was corrective in nature
(R585.4.3) and that even ‘if
an offence is sufficiently serious
to warrant dismissal, the employer is nevertheless not prevented from
merely issuing a warning’
(R587.7.3).
[15]
The Applicant’s attack the
arbitrator’s failure to apply those provisions of the
disciplinary code and the provisions
of the Code of Good Practice:
Dismissal – Schedule 8 of the LRA - particularly since the
individual applicants were first
offenders.
[16]
This attack fails to take account though of
the evidence of Mr Owen, the 3
rd
Respondent’s HR Officer. He stated that the paste plant is made
up of very technical machinery; that a shut down of the plant
placed
other businesses in jeopardy; that the tanks if breached could result
in thousands of tons of sludge being leaked. Although
perfunctorily
contested, there was no serious challenge to the fact that the paste
plant processes were potentially dangerous and
required continuous
monitoring. Moreover, Mr Owen testified that the third respondent's
contract with De Beers required it to adhere
strictly to its
disciplinary code. If the code was not adhered to, De Beers would be
entitled to cancel its contract with the third
respondent. None of
this evidence was seriously contested by the Applicants.
[17]
The disciplinary code gives the employer
the discretion not to dismiss in certain circumstances. The
arbitrator held that in the
circumstances of this case that the
employer’s exercise of its discretion to dismiss was
appropriate given the danger involved
– see P1637.
Fourth
ground of review
[18]
This ground of review is based on the
testimony of the second applicant to the effect that there was a
historical inconsistancy
in treatment – in the past a worker
was not dismissed for sleeping on duty. Mr Gasan Williams, the
employee in question,
testified that he was not ‘feeling too
well’ and had told his assistant that he was going to take a
nap – R384;
that he took his nap during his lunch break; set an
alarm to wake up – R 396. The arbitrator finds that these
circumstances
distinguished Mr Williams’ case and accordingly
that there was no inconsisitancy in treatment. There is nothing
irregular
in that finding given the evidence that was led.
[19]
Moreover, the 3
rd
Respondent had changed its policy in respect of sleeping on duty as a
consequence of the leniency accorded to Mr Williams and that
change
was brought to the attention of the two individual applicants. There
is no substance to this ground of review.
Fifth
ground of review
[20]
This ground of review is that the dismissal
of a first offender by a biased chairperson of a disciplinary hearing
is substantively
unfair. This attack fails to recognise that a CCMA
hearing is not reviewing the employer’s decision but
constitutes a fresh
hearing into the substantive fairness of the
dismissal. Accordingly, the substantive fairness of the dismissal is
determined by
arbitration. That has to be determined on the reasons
advanced by the employer for the employee’s dismissal.
[21]
In this matter whatever the bias of the
chairperson may have been, the fairness of the employer’s
decision to dismiss is not
premised on the chairperson’s views
or conduct. It is an assessment of fact and an evaluation of whether
dismissal is an
appropriate sanction in the circumstances – an
assessment and evaluation that is made in the final analysis by the
arbitrator.
There is accordingly no basis for this ground of review.
Sixth
ground of review
[22]
The attack here is that having found that
the chairperson conducted the disciplinary enquiry in a manner that
was capable of being
perceived as biased, the arbitrator awarded
minimal compensation.
[23]
There are two issues at stake here –
the failure to take account of the seriousness of the chairperson’s
conduct and
the failure to give reasons for why the compensation for
procedural unfairness should be minimal. Both constitute reviewable
irregularities.
[24]
It is worth recording the two egregious
remarks made by the chairperson of the disciplinary enquiries into
the individual applicants:
24.1
She threatened the third applicant in the
course of the proceedings that he would regret his lies – ‘jy
gaan spyt wees
oor die leuene’ - R573;
24.2
She referred to the employee representative
in the proceedings as ‘Jy is die mannetjie wat wil leer vir n
prokureur’
– R620.
[25]
Both remarks were utterly unnecessary given
the context in which they were uttered and gave rise to a perception
of bias, if not
a demonstration of bias itself. That raises the
question of whether it is a requirement of procedural fairness that
the person
conducting a disciplinary enquiry must be impartial. A
disciplinary enquiry is not an administrative or court proceeding and
should
not be evaluated according to the standards associated with
those kinds of proceedings. I endorse the reasoning in
Avril
Elizabeth Home
for the Mentally Handicapped v CCMA &
others
[2006] 9 BALR 833 (LC) in this
regard.
[26]
The appropriate standard for evaluating
procedural fairness starts with item 4 of the Code of Good Practice:
Dismissal, which gives
content to the requirements of procedural
fairness guaranteed by the constitutional right to fair labour
practices and its embodiment
in section 185 read with section 188(1)
(b) of the LRA. All that item requires is an enquiry, proper notice
of the allegations,
reasonable time to prepare a response; an
opportunity to respond to the allegations; the right to assistance of
a trade union representative
or a fellow employee. It does not
require a formal hearing with all the trappings of a court case.
Although it is good management
policy to appoint an impartial person
to conduct the enquiry there is no requirement in the Code that an
employer has to do so.
Grogan in
Workplace
Law,
Juta 9ed argues that a presiding
officer of a disciplinary enquiry should be impartial. He says that
the rule against bias emanates
from administrative law and that
‘similar considerations apply in employment law’. All his
authority is drawn from
administrative law or decisions in respect of
the 1956 LRA. Those decisions are no longer authority in respect of
what is required
in respect of the 1995 LRA. The Code of Good
Practice selectively codified the earlier jurisprudence to suit the
new policies underlying
the new LRA. Very different considerations
are at play.
[27]
Those considerations include employee
dignity, labour peace, effective dispute resolution, good management
practice and transactional
costs. Dignity is a constitutional value
that animates all constitutional rights and the constitutional right
to fair labour practices
in particular. That is one of the reasons
why the Code requires that the employee is given a reasonable
opportunity to respond
to allegations that may lead to dismissal.
Labour peace is a fundamental object of the LRA – as the
Explanatory Memorandum
accompanying the 1995 Labour Relations Bill
recognises ‘unless a credible and legitimate alternative
process is provided
for determining unfair dismissal disputes,
workers will restort to industrial action in response to dismissal’.
The notification
of the allegations, the opportunity to be heard and
be assisted, and the provisions of reasons render decisions in this
potentially
volatile area transparent and more rational.
[28]
Effective dispute resolution promotes the
resolution of disputes at the most immediate level. A hearing before
dismissal allows
the employee to evaluate the strength of the case
against her and the prospects of a referral of a dispute over the
dismissal to
the CCMA. This does not mean that employees do not refer
disputes over perfectly fair dismissals simply that without a hearing
an employee is more likely than not to refer a dispute into the
statutory dispute resolution machinery. Good management practice
calls for rational decisions on the dismissal of employees. Not
hearing the employee’s response to allegations made by other
employees even more senior employees may lead to an irrational
decision in a particular case and will lead to systemic irrational
decision making. One of the central concerns motivating the system of
dispute resolution in respect of dismissals was the issue
of costs.
The explanatory memorandum identified the system under the 1956 LRA
as ‘one of the most lengthy and expensive in
the world’.
The 1995 LRA introduced a different system – it opted for a
brief pre-dismissal procedure with the right
to challenge the
fairness of a decision to dismiss in a fresh and full hearing before
an independent arbitrator. There is no need
for a full and
independent hearing (unless of course it is contractually imposed)
before dismissal under the Code – to require
it would mean a
duplication of proceedings, the very thing the LRA sought to prevent.
[29]
These are the considerations that should
inform any jurisprudential development of the fairness requirements
contained in the Code.
Accordingly, it is not bias per se that would
render a dismissal procedurally unfair. It has long been recognised
that the decision
to dismiss is a management decision and that in any
disciplinary enquiry it is invariably a person delegated or appointed
by the
employer that conducts the disciplinary proceedings.
Disciplinary proceedings are proceedings ‘with an institutional
bias’
-
Anglo American Farms t/a
Boschendal Restaurant v Komjwayo
(1992)
13
ILJ
573
(LAC). Although the judgement is one that precedes the 1995 LRA, it
identifies the nature of disciplinary proceedings in the
workplace.
That nature has not changed as a result of the new legislation –
the proceedings and the decision remain a management
run proceedings
and a management decision.
[30]
The fact that a chairperson of a
disciplinary enquiry is drawn from management or reflects the
prevailing view of the employer in
respect of its code or sanctions
should not affect the procedural fairness of the enquiry. But the
unwarranted statement during
the proceedings that an employee is
lying and the humiliation of an employee’s representative is
the kind of conduct that
undermines the policies advanced by the
procedural requirements of fairness. It is critical for industrial
peace that disciplinary
hearings are considered by fellow workers to
be legitimate. It is critical that the hearings are conducted in such
a manner that
the employees and their union are able to assess the
fairness of the decision to dismiss. It is not surprising that the
Applicants’
considered that the ostensible bias poisoned the
chairperson’s reasoning and conclusion. It is also necessary
that employees
and their representatives are treated with respect.
Although the normal rules of impartiality in civil and administrative
proceedings
do not necessarily apply in disciplinary proceedings
unless supported by the policies outlined above, the probability of
actual
bias strikes at each of the policies underlying the
requirement of procedural fairness in disciplinary hearings.
[31]
I am of the view that the arbitrator failed
to recognise that the chairperson in making the unnecessary remarks
not only insulted
the third applicant and his representative,
undermined the legitimacy of pre-dismissal hearings, and may have
prompted an unnecessary
referral of a dispute to the CCMA in respect
of both individual applicants. Although not directly the subject of
the abusive statements,
the second Applicant was indirectly affected.
Without an explanation as to why he regarded the conduct is minimal,
I must conclude
that he did not properly apply his mind to the order
of compensation.
[32]
Although a court should not easily
substitute its own decision for that of the arbitrator, this is a
case in which all the necessary
facts are before me and there is no
good reason to refer the matter back for a decision on an appropriate
award of compensation
for procedural unfairness.
[33]
I consider the chairperson’s
interventions as a serious and accordingly consider that an
appropriate order of compensation
for procedural unfairness to be the
equivalent of 4 months salary.
[34]
Given that both parties are partly
successful, it is appropriate that each party should pay their own
costs.
[35]
Accordingly, I make the following order:
35.1
The arbitration award is set aside in
respect of the orders 2, 3, and 4 in respect of the amount of
compensation;
35.2
Orders 2, 3,and 4 are substituted with the
following:
35.2.1
The respondent is ordered to pay the
individual applicants the equivalent of 4 months salary as
compensation;
35.2.2
The compensation is calculated at 4 x R5400
for Mr Setlhodi and 4 x R1500 for Mr Mganu;
35.2.3
The amounts of R 21 600 (twenty one
thousand and six hundred) and R 6 000 (six thousand) respectively are
to be paid to the individual
applicants by cheque.
35.3
Each party to pay their own costs.
________________________
CHEADLE
AJ
Date
of Hearing : 3/02/2010
Date
of Judgment : 25/03/2010
Appearances
For
the Applicant
: N. Cloete
Instructed
by
: Neville Cloete Attorneys
For
the Respondent
:
Grant Marinus
Instructed
by
: Werksman Inc