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[2011] ZALCJHB 20
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Raswiswi v Commission for Conciliation Mediation and Arbitration and Others (JR 3121/09) [2011] ZALCJHB 20; [2011] 9 BLLR 911 (LC); (2011) 32 ILJ 2186 (LC) (22 March 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: JR 3121/09
In
the matter between:
PETER
MATOME RASWISWI
…..............................................................................
Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION &
ARBITRATION
….................................................................
1
ST
Respondent
TIMOTHY BOYCE
N O
…...............................................................................
2
ND
Respondent
PITNEY BOWES SA
(PTY) LTD
…................................................................
3
RD
Respondent
JUDGMENT
LAGRANGE,
J
Introduction
This is an application to set aside an arbitration award issued by
the second respondent, a CCMA Commissioner on 2 October 2009.
The
arbitrator found that the applicant’s dismissal on 20 May 2009
was substantively fair, it being common cause that it
was
procedurally fair. The applicant had been dismissed by the third
respondent (‘the company’) for submitting fraudulent
claims for overtime pay and a standby allowance. The applicant was a
technician who had been seconded by the company to work
for ABSA
bank, one of the company’s clients.
Grounds of review
In his founding affidavit, the applicant cites a number of general
grounds of review but failed to give any specific factual
details of
those grounds, which were necessary for the company to know what
case it had to meet and for the court to determine
if those grounds
have any substance. In the absence of those details these grounds do
not bear further consideration. However,
other grounds of review
were cited in which sufficient factual detail was included to enable
them to be addressed.
The applicant claims the Commissioner ignored his testimony that he
did not commit any fraud in submitting his claims for hours
worked
and for standby. Secondly, the applicant claims that the
Commissioner improperly relied upon a document supposedly issued
by
the company’s client, ABSA bank, without any ABSA employee
coming to confirm the contents of that document. The applicant
further claimed that in evaluating the charges, the arbitrator
failed to look at each element of the charge against him. In
particular, the arbitrator failed to consider if he had the
intention to misrepresent or mislead the company. In his
supplementary
affidavit, the applicant raised an additional ground
of review, on the basis that the Commissioner committed a gross
irregularity
by demonstrating bias against him and in favour of the
employer during the proceedings. This ground of review was the sole
focus
of legal argument at the hearing of the review application.
The basis of the complaint of bias rests on a number of complaints
about how the arbitrator conducted the proceedings. The applicant
argued that it was clear from the Commissioner's conduct that he had
taken a decision that the applicant had submitted false
claims
before even hearing his version. In support of this, the applicant
cites the following extract from the minutes of the
arbitration:
"Commissioner: he was given a final warning?
Mr Pitsili: final written warning for the same... For submitting
false claims for overtime worked.
Commissioner: final warning for submitting false claims for
overtime worked and this presents chamber 2005.
Mr Pitsili: this warning is only valid for a period of 12 months
which we did acknowledge.
Commissioner: he still has been doing that?"
The applicant also submits that during his examination in chief,
when he was explaining how and why he claimed for standby, the
Commissioner made it clear he was not prepared to listen to his
version and had already taken a decision that the applicant was
dishonest. In this regard he cites the following extract from the
transcript:
"Commissioner: well I think you have been getting away with
murder for too long. You are claiming for standby until 22h00?"
The third example given by the applicant concerns the interruption
of the applicant’s representative in a way that demonstrated,
according to the applicant, the arbitrator’s bias and his
desire to get answers which favoured the employer:
"Ms Ranthako: thank you Sir Commissioner, Mr Raswisi, is it
true you submitted claims in respect of hours were not authorised
to
work for?
Mr Raswisi: No
Commissioner: What did you not submit those claims from page 16 to
19, are they not your claims?
Mr Raswisi: Yes I did.
Commissioner: So you submitted them?
Mr Raswisi: I submitted them.
Commissioner: but they are wrong?"
(sic)
Regarding the complaints that the arbitrator relied on a document
presented by the respondent without calling a bank employee
to
confirm its contents, the employer argued that the parties had
agreed during a pre-arbitration conference on 17 September
2009
that, "
the documents of what they purport to be and the
authenticity thereof to be proven on evidence.
" Moreover,
the company points out that the authenticity of the documents tabled
by it, which it obtained from ABSA, was
never disputed by the
applicant during the arbitration. The documents in question were the
work schedules provided by the bank.
Evidence was led that without
sight of the schedule a technician would not know when he or she was
supposed to be working overtime
or on standby.
The applicant testified that he had not seen the work schedules
before. The applicant's explanation for claiming for overtime
worked
and time on standby, which was irreconcilable with the work
schedules provided by the client, was that he based his hours
claimed on what he had been told by a supervisor during 2007 who had
advised him what hours he was entitled to claim for. Because
he
claims to have been ignorant of the work schedules he could only say
that he was unaware that the clients did not want him
at work for
the hours that he claimed. The arbitrator found the applicants
explanation for his excessive claims to be ' absurd',
and noted that
he did not call the supervisor as a witness in the arbitration
hearing.
Further, the arbitrator noted that when the supervisor had been
called to corroborate the applicant’s account during the
disciplinary hearing, the supervisor had in fact contradicted the
applicant on this key aspect of his defence. The arbitrator
clearly
did not accept the applicant’s claim that he had not seen the
work schedules before. Given what the parties agreed
in the
pre-arbitration process, I am satisfied that there is no merit in
this ground of review.
The applicant's attack on the Commissioner's analysis of the charge
against him is essentially that the Commissioner paid no
attention
to whether or not he had claimed for the overtime and standby hours
with fraudulent intent. Essentially, the applicant
is arguing
implicitly that if the arbitrator had considered this, he could only
have concluded that the applicant had made his
claims in the
innocent belief that was what he was entitled to. Reading the
arbitration award I do not think it is correct that
the arbitrator
failed to consider the applicant's state of mind. It is sufficient
to mention what the arbitrator set out in the
penultimate paragraph
of his award:
"4.5 Having regard to the foregoing, it is perfectly clear
that the employee's conduct, on an ongoing basis, constituted gross
dishonesty. The employee, who is not a first offender, must have been
acutely aware that his claim forms were required to be accurate,
and
there can be no doubt he was trying to enrich himself by submitting
claim forms which she knew were incorrect."
In finding that the employee was guilty of gross dishonesty, the
arbitrator effectively found that he submitted his claims for
overtime pay and standby allowance with the necessary fraudulent
intent. Accordingly, this ground of review must also fail.
The ground of review with greater merit concerns the claim of bias.
The employer defends the arbitrator's conduct of the proceedings
on
the basis that he was entitled to intervene in the way he did in
terms of section 138 (1), which states:
"
The Commissioner may conduct the arbitration in a manner
that the Commissioner considers appropriate in order to determine a
dispute
fairly and quickly but must deal with the substantial merits
of the dispute with the minimum of legal formalities.
"
The company submitted that when the commissioner intervened he did
so when irrelevant questions were asked, or when the parties
were
not dealing with the issues that needed to be decided. He stamped
his authority on the hearing in compliance with the provisions
of
section 138 of the LRA. The employer cites certain examples where
the Commissioner intervened when it was presenting its case,
discussed below.
At page 35 of the transcript the following interaction is recorded:
"Mr Van der Walt: Yes Mr Commissioner.
Commissioner: How many witnesses have you got?
Mr Van der Walt: I have got three witnesses Mr Commissioner, Mr
Pitsili you will be the company representative, you will give us
a
short background and then to technical witnesses in respect of
overtime and standby hours that had to be and not claimed.
Commissioner: What do you mean a short background?
Mr Van der Walt: Mr Pitsili will just indicate to us why is it
necessary to work overtime, etc etc just a brief summary.
Commissioner: I don't want to write a book of this, he's either
guilty of figures he knows were incorrect or he is not.
Mr Van der Walt: Yes
Commissioner: Anyone knows how to tell the truth, that it is
dishonest to put incorrect figures."
Another example from page 58 of the transcript, cited by the company
as evidence that the arbitrator had not made up his mind
before the
applicant testified reads:
"Mr Van der Walt: Yes Mr Commissioner, Mr Pitsili if you can
turn to page 79 can you identify the document for us.
Mr Pitsili: Mr Chairman, page 79, is a formal disciplinary hearing
that was held against PR, on 29th of September 2005.
Commissioner: 2009? (sic)
Mr Pitsili: Yes.
Commissioner: He was given a final warning?
Mr Pitsili: A final written warning for the same... for submitting
false claims for overtime work."
I agree with the company that the arbitrator did intervene on a
regular basis when the employer was presenting its evidence in
chief. Almost all of his questions to the employer’s witnesses
were directed at obtaining clarity about the employer’s
evidence supporting the charges against the applicant. There is
nothing wrong with asking questions to obtain greater clarity.
The
object of those questions was to put the employer's case into clear
focus: they did not challenge the employer’s case.
The same cannot be said of the arbitrator’s interventions when
the applicant’s evidence was presented. The following
extract
beginning at page 40 of the transcript, at the beginning of the
applicant’s evidence in chief illustrates this
point.
"Ms Ranthako: Thank you Sir Commissioner, Mr Raswisi, is it
true that you submitted claims in respect of hours that you are
not
authorised to work for?
Mr Raswisi: No.
Commissioner: What did you not submit these claims from page 16 to
19, are they not your claims?
Mr Raswisi: Yes I did.
Commissioner: So you submitted them?
Mr Raswisi: I submitted them.
Commissioner: But they are wrong?
Mr Raswisi: They are not wrong.
Commissioner: The client didn't require these hours to be worked.
So you submitted the claims for overtime and standby electronically,
pages 16 to 19 and you say they are not wrong?
Mr Raswisi: They are not wrong.
Commissioner: Okay let me ask you this... Have a look at page 20,
on 22 February... Where is that.. Where is his claim for 22 February.
Ms Ranthako: It is on page 19.
Commissioner: Page 19, on 22 February you claimed overtime from
0800 hours to 15:00 hours?
Mr Raswisi: Yes.
Commissioner: Page 23 that is a Sunday?
Mr Raswisi: Yes.
Commissioner: Where does it show that they required any overtime?
Week 3, the Saturday and Sunday; page 23 shows that Absa did not
require any overtime on Sunday, 22 February 2009. How can you claim
correctly?
Mr Raswisi: Okay Mr Chairman, first thing, these papers that the
employer is saying was submitted by the customer, I only got one
page
that was from Maurice Hau, the guy who was here, it was only one
sheet.
Commissioner: Mr Raswisi, the customer and so didn't require any
overtime technician that Sunday and yet you claimed for 7 hours,
that
didn't require any overtime."
(sic)
This line of questioning directed by the Commissioner continues in
the same vein, with the applicant’s union representative
scarcely getting a word in. Apart from the fact that the applicant’s
representative had only asked one question before
the arbitrator
launched into his own line of cross examination, it is clear that
the character of his questions to the applicant
was very different
to the character of the questions he asked the company witnesses.
The entire thrust of his questioning was
not aimed at elucidating or
clarifying the applicant's defence, but at challenging it. Moreover,
the arbitrator’s questions
to the applicant did not follow
naturally from an incomplete line of cross examination initiated by
the employer: the arbitrator
took the initiative by directly
attacking the applicant’s defence, while he was still giving
evidence in chief.
The legal concept of bias
In the
BTR Sarmcol
case, the Appellate Division, as it then
was, considered the test of bias in the context of when an
industrial court judge should
recuse himself or herself. The court
found that the existence of a reasonable suspicion of bias satisfied
the test for recusal.
1
The test was further tightened up by the decision of the
Constitutional Court in the
Sarfu
2
case and elucidated by it in the
Saccawu
3
case. Without, I hope, detracting from the nuanced reasoning
expressing in those judgments, a major theme in the Constitutional
Court’s refinement of the test was to emphasise that not only
must the apprehension of bias be that of a reasonable person
in the
position of the person being judged who has an objective factual
basis for their suspicion, but the apprehension of bias
they have
must be one that in law would be recognized as a raising a
legitimate concern about the adjudicator’s impartiality.
In this instance, having regard to the transcript, I am satisfied
that there are enough examples to indicate that the manner
in which
the arbitrator approached the witnesses would create a justifiable
impression that he had a predisposition to assist
the employer in
putting its case and to challenge the applicant’s case. A
reasonable person in the position of the applicant
would have had a
strong factual basis for drawing this inference, and therefore for
having a reasonable apprehension of bias.
4
The question that remains is whether the degree of license which
arbitrators are allowed in conducting proceedings in an
inquisitorial
manner might nevertheless mean that such an
apprehension of bias should not be recognized as legitimate.
It is well established that arbitrators performing statutory
arbitration under the LRA are entitled under the provisions of
section 138(1), to adopt an inquisitorial approach to the conduct of
proceedings and are not confined to the adversarial practices
of the
magistrate and high courts.
5
In the words of the learned Stelzner AJ:
“
The
basic standards of proper conduct for an arbitrator are to be found
in the principles of natural justice, and in particular
the
obligation to afford the parties a fair and unbiased hearing. (See
Baxter Administrative Law at 536.) These principles have
been
reinforced by the constitutional imperatives regarding fair
administrative action. (See Carephone (Pty) Ltd v Marcus NO
(1998)
19 ILJ 1425 (LAC)
a
t 1431I-1432A.)
The core requirements of natural justice are the need to hear both
sides (audi alteram partem) and the impartiality
of the decision
maker (nemo iudex in sua causa). (See Baxter at 536.)
[8] It follows from the above principles that a commissioner must
conduct the proceedings before him in a fair, consistent and
even-handed
manner. This means that he must not assist, or be seen to
assist, one party to the detriment of the other. Therefore, even
though
a commissioner has the power to conduct arbitration
proceedings in a manner that the commissioner considers appropriate
in order
to determine the dispute fairly and quickly under the
provisions of s 138(1) of the Act, this does not give him the power
to depart
from the principles of natural justice. Thus, further,
although it clearly lies within the commissioner's powers to decide
whether
to adopt an inquisitorial or adversarial mode of fact
finding, once this decision has been made it ought to be consistently
applied
to both parties.
[9] In Brassey et al Commentary on the Labour
Relations Act at A7:49 the following guidance with regard to the
choice between forms of procedure is provided:
'In adversarial proceedings the litigation process is in the
control of the parties; the evidence that is adduced is that which
the parties choose to present and the arbitrator operates rather like
an umpire. In inquisitorial proceedings the arbitrator plays
a more
active role in the hearing, calling witnesses and interrogating them
in order to ascertain the truth. . . . Where an arbitrator
adopts an
inquisitorial approach to the arbitration, she cannot abandon the
well established rules of natural justice; on the contrary,
she must
be especially careful to guard against creating a suspicion of bias
in the breasts of litigants who will have little,
if any, experience
of a process so foreign to our system of adjudication. See Mutual &
Federal Insurance Co Ltd v CCMA &
others
[1997] 12 BLLR 1610
(LC)
at 1619-20.'
[10] Where a commissioner
has adopted an adversarial approach, he or she should stand entirely
away from inquisitorial
style questioning of witnesses, leaving the
parties to adduce and test evidence as they see fit, alternatively,
if he or she wishes to descend
into the arena, this should be done in a consistent manner
so as to avoid giving rise to
suspicion of bias.”
6
(emphasis added)
The emphasized portion of the extract above is particularly
pertinent in this matter. Both parties were represented in the
hearing and the arbitration was conducted within the broad framework
of adversarial proceedings. That is not to say that the arbitrator
could not adopt an inquisitorial approach in the interest of
expedition or fairness, but when intervening the arbitrator’s
approach must be consistent.
In this case the arbitrator’s approach was far from even
handed and there is more than an adequate basis for believing
the
arbitration was not conducted in an impartial manner, giving rise to
a reasonable apprehension that he was more disposed
to the employer
than the employee. Consequently, the arbitrator committed misconduct
in relation to his duties by depriving the
applicant of a fair
hearing.
Because the arbitrator’s intervention affected the fairness of
the process and also the evidence that was adduced, this
is not a
case in which the court should substitute its own decision for that
of the arbitrator.
Apart from the most blatant pre-judgmental comment of the arbitrator
cited in paragraph [5] above, I believe that the evidence
of bias
should have been fairly obvious from the record, and therefore the
review application should not have been opposed on
this ground.
Accordingly, it is fair and equitable that the applicant should be
paid the costs of the application.
Order
The arbitration award issued by the second respondent under first
respondent’s case number GAJB 19848/09 dated 02 October
2009,
is reviewed and set aside.
The matter is remitted back to the first respondent to be set down
before a commissioner other than the second respondent for
rehearing
of the arbitration.
The third respondent is to pay the applicant’s costs.
ROBERT LAGRANGE
JUDGE OF THE LABOUR
COURT
Date of hearing: 21
October 2011
Date of judgment: 22
March 2011
Appearances:
For the applicant: S Mabaso of Mabaso Attorneys
For the respondent: J C v.d. Walt instructed by L Dekker Attorneys
1
BTR
Industries SA (Pty) Ltd & others v Metal & Allied Workers
Union & another
(1992) 13
ILJ
803
(A)
, per Hoexter JA: “
For the
reasons which follow I conclude that in our law the existence of a
reasonable suspicion of bias satisfies the test; and
that an
apprehension of a real likelihood that the decision maker will be
biased is not a prerequisite for disqualifying bias.
In
my opinion the statement in the full court judgment ) [ in
Mönnig
& others v Council of Review & others
1989
(4) SA 866
(C)] (at 879A-B) that-
'provided the suspicion is one which
might reasonably be entertained, the possibility of bias where none
is to be expected serves
to disqualify the decision maker',
fairly
reflects the recent trend in South African judicial thought, and I
would approve it.”
2
The
court held at 177, par [48]: “
It follows from the foregoing
that the correct approach to this application for the recusal of
members of this Court is objective
and the onus of establishing it
rests upon the applicant. The question is whether a reasonable,
objective and informed person
would on the correct facts reasonably
apprehend that the Judge has not or will not bring an impartial mind
to bear on the adjudication
of the case, that is a mind open to
persuasion by the evidence and the submissions of counsel.”
The learned judges went on to expound that the reasonableness of
the apprehension must be assessed against various qualities expected
of judges.
3
South
African Commercial Catering and Allied Workers Union and others v
Irvin & Johnson Ltd (Seafoods Division Fish Processing)
[2000] ZACC 10
;
2000 (3) SA 705
(CC)
,
per Cameron, AJ at 714-5:
“
[14]
The Court in Sarfu further alluded to the apparently double
requirement of reasonableness that the application of the test
imports. Not only must the person apprehending bias be a reasonable
person, but the apprehension itself must in the circumstances
be
reasonable.
at
para [45].
This
two-fold aspect finds reflection also in S v Roberts,
decided shortly after Sarfu , where the
Supreme Court of Appeal required both that the apprehension be that
of the reasonable
person in the position of the litigant and that it
be based on reasonable grounds.
[15]
It is no doubt possible to compact the 'double' aspect of
reasonableness
inasmuch
as the reasonable person should not be supposed to entertain
unreasonable or ill-informed apprehensions. But the two-fold
emphasis does serve to underscore the weight of the burden resting
on a person alleging judicial bias or its appearance.
[16]
The 'double' unreasonableness requirement also highlights the fact
that mere apprehensiveness on the part of a litigant that
a Judge
will be biased - even a strongly and honestly felt anxiety - is not
enough. The court must carefully scrutinise the apprehension
to
determine whether it is to be regarded as reasonable. In adjudging
this, the court superimposes a normative assessment on
the
litigant's anxieties. It attributes to the litigant's apprehension a
legal value and thereby decides whether it is such that
it should be
countenanced in law.
[17]
The legal standard of reasonableness is that expected of a person in
the circumstances of the individual whose conduct is
being judged.”
4
See
in this regard
Mutual
& Federal Insurance Co Ltd v CCMA & others
[1997]
12 BLLR 1610
(LC)
at
1618H-1619C, where the learned
judge Jali AJ, emphasized that the conduct of a commissioner may be
a basis for inferring bias.
5
See
for example,
Consolidated
Wire Industries (Pty) Ltd v CCMA & others
(1999)
20 ILJ 2602 (LC),
cited
with approval in
Klaasen v CCCMA &
others
(2005) 26
ILJ
1447
(LC)
at 1455, par [27];
Armstrong
v Tee & others
(1999)
20
ILJ
2568 (LC)
at 2538,
par [33], and the cases of
Theron NO
and
Mutual & Federal Insurance Company
cited elsewhere in this judgment.
6
County
Fair Foods (Pty) Ltd v Theron NO & others
(2000) 21
ILJ
2649 (LC)
at 2652-3