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[2011] ZALCJHB 264
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IEMAS (Co-operative) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR1180/08) [2011] ZALCJHB 264 (10 November 2011)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: JR 1180/08
In
the matter between:
IEMAS
(CO-OPERATIVE)
LIMITED APPLICANT
AND
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
FIRST
RESPONDENT
COMMISSIONER
D NKADIMENG SECOND
RESPONDENT
NUM
OBO A
ROUX THIRD
RESPONDENT
Heard
:
27 October 2011
Delivered
:
10 November 2011
JUDGMENT
SAVAGE
AJ
Introduction
[1]
This is an application to review and set
aside an arbitration award made by the second respondent (“the
commissioner”)
on 29 April 2008 in which the dismissal of the
third respondent (“Ms Roux”) was found to be both
procedurally and substantively
unfair.
[2]
Ms Roux was employed by the applicant in
the position of asset-based financing sales consultant at the time of
her dismissal on
12 December 2007. She had been employed for
approximately 12 years and was dismissed following having been found
guilty of:
‘
Non-compliance
with the quality of service requirements of Iemas’ code of
conduct (par 9.3) in that you on 23 October 2007,
behaved
unprofessionally and disrespectfully towards a business partner, Mr
Don Emslie of Emslie Motors.’
Paragraph
9.3 of the code of conduct states the following:
‘
Members,
colleagues and business partners are at all times handled
courteously, professionally and with the greatest respect, regardless
of the behaviour of the member, colleague or business partner. An
injustice to a member, colleague or business partner is viewed
as an
injustice to Iemas and will be dealt with as such’
[3]
Ms Roux lodged an appeal against her
dismissal but did not attend the appeal hearing. The appeal was
concluded in her absence and
her dismissal was upheld.
Arbitration
award
[4]
The commissioner dismissed an application
for legal representation made at the arbitration hearing. In his
ruling the commissioner
detailed the grounds on which the company
sought legal representation and concluded that he was not persuaded
that it would be
unreasonable, considering CCMA rule 25, to disallow
legal representation.
[5]
In the award, the commissioner sets out a
summary of the evidence of five witnesses three of whom, testified
for the applicant and
two for Ms Roux.
[6]
The
commissioner concluded that the applicant had not discharged the onus
to prove the employee’s alleged offensive conduct
and that Ms
Roux was not dismissed for a fair reason within the meaning of
section 188 of the Labour Relations Act.
[1]
The dismissal was found to be procedurally unfair in that the
chairperson refused to hear the testimony of the employee’s
witness. Ms Roux was awarded compensation equivalent to eight months’
salary given that she did not seek reinstatement.
Review
test
[7]
An
arbitrator when considering a dismissal for misconduct, is required
to determine whether the misconduct alleged has been shown
on a
balance of probabilities to exist. Section 138 (1) of the LRA permits
commissioners to ‘deal with the substantial merits
of the
dispute with the minimum of legal formalities’. In undertaking
their task, a commissioner is entitled to ‘conduct
the
arbitration in a manner that the commissioner considers appropriate
in order to determine the dispute fairly and quickly’.
Commissioners must be guided by at least three considerations: the
resolution of the real dispute between the parties; as expeditiously
as possible; and in a manner which is fair.
[2]
[8]
This
Court, with reference to the grounds of review, is entitled to set
aside an arbitration award if the commissioner’s decision
falls
outside of a band of decisions to which a reasonable person could
come on the available evidence (see
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others).
[3]
It is accordingly not the correctness of the commissioner’s
decision which is relevant but whether the result of the
arbitration
proceedings is reasonable.
[9]
In
Bestel
v Astral Operations Ltd and Others,
[4]
Davis JA emphasised:
‘…
that
the ultimate principle upon which a review is based is justification
for the decision as opposed to it being considered to
be correct by
the reviewing court; that is whatever this Court might consider to be
a better decision is irrelevant to review proceedings
as opposed to
an appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected’.
[10]
The
test in
Sidumo
for determining whether a decision or arbitration award of a CCMA
commissioner is reasonable is a stringent one that will ensure
that
awards are not lightly interfered with.
[5]
[11]
It
follows therefore that it is only an award that is unsupported by any
evidence, is based on speculation, is disconnected from
the evidence
or is made without appropriate consideration of evidence that may be
considered unreasonable
[6]
.
Grounds
of review
[12]
The applicant has raised a number of
grounds of review in this application:
12.1
In making his ruling not to allow legal
representation, the commissioner failed to apply his mind properly to
the application and
failed to give proper reasons for his decision;
12.2
The commissioner misconducted himself
and/or committed a gross irregularity and/or exceeded his powers in
the course of the arbitration
proceedings in that he misconstrued
relevant questions of law and fact in such proceedings by:
12.2.1
allowing the respondent to venture beyond
the issues contained in the pre-arbitration minute (a ground which
was not pursed at the
hearing of the matter);
12.2.2
finding that Mr Emslie ‘admitted’
that he swore at Ms Roux when this was not the evidence of Mr Emslie;
12.2.3
failing to advise a lay person in respect
of issues such as leading evidence and conducting cross-examination
and failing to draw
an adverse inference from the fact that the
witnesses called by the respondent never put their versions to the
applicant’s
witnesses and accordingly there was no opportunity
given to answer to the respondent’s version;
12.2.4
making a subjective finding in para 6.23 of
his award relating to the motive for the dismissal which was not
supported by evidence
and was largely speculative;
12.2.5
finding that Ms Geyer had done everything
in her power to prevent Ms Roux’s witness from testifying,
which was irrational
and without any foundation when Ms Roux was not
prevented from calling her witness and this issue was not put to Ms
Geyer in cross-examination;
and
12.2.6
Ms Roux abandoned her opportunity to appeal
the finding, at which appeal any procedural or substantive
irregularity.
Evaluation
[13]
The third respondent submitted that the
record filed was inadequate given that there were many inaudible
parts which were incapable
of transcription and that no
reconstruction of the record had been undertaken. A record of
proceedings is rarely a perfect image
of all aspects of an
arbitration hearing. What is required is that a record filed fairly
and sufficiently reflects the relevant
aspects of the evidence
presented at the arbitration proceedings so as to place the court in
a position that allows a review exercise
to be undertaken. In
addition to the transcript prepared, the commissioner’s notes
have been availed to this Court, as has
additional documentary
evidence relevant to the matter. I am satisfied therefore that,
cognisant of the fact that there may be
imperfections, the record
filed in this matter allows this Court to perform its functions in
terms of section 145 and is therefore
adequate for the current
purposes.
[14]
The first ground of review raised by the
applicant relates to the decision made by the commissioner to
disallow legal representation
at the arbitration hearing. In his
written ruling on legal representation, the commissioner detailed the
arguments of the parties,
referred to rule 25 of the CCMA’s
rules and concluded that the dispute concerned misconduct and that he
was not persuaded
that it would be unreasonable to disallow legal
representation. The transcript of proceedings bears testimony to the
commissioner’s
reasoning in this regard.
[15]
The provisions of rule 25 are mandatory:
parties to arbitration hearings may not be represented by a legal
practitioner where the
dispute being arbitrated concerns an
employee’s dismissal for alleged misconduct or incapacity. An
application for legal
representation may only be granted where the
commissioner and all parties consent, or where the commissioner
concludes that the
nature of the questions of law raised in the
dispute, the complexity of the dispute, the public interest and the
comparative ability
of the parties and/or their representatives to
deal with the dispute justifies such a ruling.
[16]
The applicant did not present the
commissioner with an argument that there were questions of law raised
in the dispute which justified
legal representation or that the
public interest required such representation. The application was
founded rather on argument alone
regarding the alleged complexity of
the dispute and the comparative ability of the parties to deal with
the dispute. In any application
for legal representation, the
applicant must make out a proper case in accordance with the
provisions of rule 25. The grant of
legal representation in
misconduct and incapacity dismissals is not one just for the taking.
What is required is that the appropriate
facts be placed before a
commissioner in support of such application. Consequently, the
conclusion reached by the commissioner
to disallow legal
representation was not unreasonable in the face only of argument that
a human resources manager lacks the experience
and expertise required
to represent the employer when compared to the union representative.
No evidence was placed before the commissioner
to justify the
applicant’s submission that the representatives were not
comparatively able to represent the parties in the
matter and the
applicant took no steps to prove that this was indeed so.
Furthermore, having studied the record and the commissioner’s
ruling, I am not persuaded that the applicant made out a case which
proved that the matter was of a complexity which warranted
legal
representation. In the circumstances, the ruling was not an
unreasonable one and was justified on the basis of the material
placed before the commissioner.
[17]
The
applicant raises as a further ground of review that the commissioner
misconstrued relevant questions of law and fact during
the
arbitration proceedings. It is the applicant’s case that the
commissioner found that Mr Emslie had ‘admitted’
that he
swore at Ms Roux when this was not the evidence of Mr Emslie during
the arbitration hearing. The evidence of Mr Emslie
at the arbitration
hearing was that when he had put down the phone he was looking at his
salesman and told him ‘well, fok
dit, kry my haar baas se
nommer’. He testified that he was ‘never swearing at
her’
[7]
. The commissioner
recorded the evidence of Mr Emslie to be ‘(w)hen he put down
the receiver, he said “Fok dit”,
not to the applicant but
to his foreman who was standing close to him’
[8]
.
It was Mr Reynders whose evidence is recorded by the commissioner as
having been that Mr Emslie admitted that he swore at Ms Roux.
The
commissioner did not conclude that Mr Emslie swore at Ms Roux but
rather that Mr Emslie admitted using the words “Fok
dit”
even though he denied that the words were addressed to Ms Roux
[9]
.
The commissioner then found that ‘[c]oupled with Emslie’s
admission that he used the words “Fok dit”,
my finding is
that Emslie was extremely rude to the applicant during their
telephone discussion on 24 October 2007’
[10]
.
I am therefore satisfied that the commissioner did not misconstrue
the evidence before him in arriving at the finding that he
did. The
commissioner did not conclude that Mr Emslie had admitted that he had
sworn at Ms Roux. The conclusions reached by the
commissioner on this
aspect are accordingly reasonable and justified based on the evidence
before him.
[18]
The next review ground relates to the
observation of the commissioner that:
‘
Emslie
commanded respect in the close-knit community of Lephalale because of
his large business interests. Reynders expressed fear
of losing
Emslie’s business to the competition. In my view, this fear
played a role in the dismissal of the applicant. In
the manner of
speaking, the respondent chose the lesser of two evils’
[11]
.
[19]
The
commissioner’s observations are not contradicted by the record,
nor by the probabilities. Mr Emslie was an important client
of the
applicant and this is borne out from the record. The applicant took
the complaint made against Ms Roux seriously. This is
recorded in an
email sent by Mr Reynders and is evident from his testimony that a
good relationship with the dealers in town is
very important and that
after receiving the complaint, he went to see the dealer personally
in the interests of building a successful
business. He testified in
answer to a question regarding the decision to take disciplinary
action against Ms Roux that he was very
annoyed with what the dealer
had told him and that Mr Emslie had said he would ‘cancel your
business’ and that he would
advertise in the newspaper ‘that
is the way you are doing business’
[12]
.
Mr Reynders thereafter indicated that he was to investigate the
matter and stated ‘from there I am going to take it further.
And I think on that moment [in] time I realise that I had to go
further with the disciplinary hearing’
[13]
.
Mr Reynders testified under cross-examination that ‘if we don’t
attend to this problem he is going to …advertise
to the public
that this is the type of service he got from IEMAS’.
[14]
Having considered the evidence placed before the commissioner on this
point, I find that the conclusion reached regarding the decision
to
discipline Ms Roux and the fact that fear with regards to losing
business played into the decision to dismiss her, to be a reasonable
one based on his assessment of the evidence before him. I do not find
that this was ‘wholly subjective, not supported by
the evidence
and largely speculative’.
[20]
The applicant’s next ground of review
is that the applicant claims that the commissioner failed to guide
and advise Ms Geyer
as a lay person in conducting the case for the
company
inter alia
with regards to the leading of witnesses and cross-examination.
Section
138(1) of the
LRA provides that a:
‘
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’.
The
commissioner is accordingly afforded a discretion as to the manner in
which the arbitration proceedings are conducted provided
that the
interest of justice and fairness are not compromised. It is apparent
from the record that the commissioner did take steps
to give
assistance to the parties at the outset of the hearing
[15]
.
The commissioner clarified the approach to documentary evidence
[16]
and to the fact that he was to determine whether the dismissal was
correct and whether it was an appropriate sanction
[17]
.
Both parties were provided with an adequate opportunity to present
their respective cases, present evidence and cross-examine
witnesses
and the records bears this out. In performing his functions, the
commissioner did not fail to resolve the real dispute
between the
parties, as expeditiously as possible and in a manner which is
fair.
[18]
From
the record there is no basis to support a conclusion that the
commissioner did not act fairly in the manner he conducted
proceedings.
[21]
The
applicant suggests the commissioner failed to draw an adverse
inference from the fact that the version of Ms Roux’s witnesses
was not put to the applicant’s witnesses who therefore had no
opportunity to answer to such version. Ms Roux’s representative
did canvass with Mr Reynders under cross-examination whether he had
heard the conversation and how he came to the conclusion that
Ms Roux
was unprofessional (and disrespectful). His response was that Mr
Emslie had told him.
[19]
Mr
Emslie’s evidence that the conversation with Ms Roux was
‘katterig snedig byterig’ was not challenged under
cross-examination by Ms Roux. What the commissioner’s notes
record is that what was put to Mr Emslie was whether he could
prove
that the conversation was unprofessional and rude. His response was
that he could and that there are ethics that must be
followed and
that he received his money after complaining. It was then put to Mr
Emslie that he ‘uttered the words but she
can’t prove
it’. He denied this. Mr Emslie was also asked in
cross-examination if Ms Roux had provoked him and he said
that she
had. It was Ms Roux’s case that she tried to calm Mr Emslie
down and that he had sworn at her.
[22]
I am satisfied that that all three of the
applicant’s witnesses were provided with an adequate
opportunity in cross-examination
to answer to the nub of Ms Roux’s
case. Having due regard to the facts and circumstances in this case,
I am therefore satisfied
that no reviewable irregularity arose by
virtue of a failure to put a version to the applicant’s
witnesses in cross-examination.
[23]
The
commissioner was faced with two versions: that of the applicant that
Ms Roux was ‘katterig snedig byterig’ but that
Mr Emslie
on his own admission swore (not at Ms Roux) as he put the telephone
down; and the second being that of Ms Roux that Mr
Emslie was rude,
even to Ms Mabelebele, and that Ms Roux had tried to keep calm,
stating that the conversation was being recorded.
[20]
Where there exists a factual dispute (see
SFW
Group Ltd and Another v Martell et CIE and Others
[21]
2003
(1) SA 11
(SCA) per Nienaber JA) :
‘
...a
court must make findings on (a) the credibility of the various
factual witnesses; (b) their reliability; and (c) the probabilities.
As to (a), the court’s finding on the credibility of a
particular witness will depend on its impression about the veracity
of the witness. That in turn will depend on a variety of subsidiary
factors, not necessarily in order of importance, such as (i)
the
witness’ candour and demeanour in the witness-box, (ii) his
bias, latent and blatant, (iii) internal contradictions in
his
evidence, (iv) external contradictions with what was pleaded or put
on his behalf, (v) the probability or improbability of
particular
aspects of his
version,
(vi)
the calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident or events.
As to (b), a
witness’ reliability will depend, apart from the other factors
mentioned under (a) (ii), (iv) and (v) above,
on (i) the
opportunities she had to experience or observe the event in question
and (ii) the quality, integrity and independence
of his recall
thereof. As to (c), this necessitates an analysis and evaluation of
the probability or improbability of each party’s
version on
each of the disputed issues. In the light of the assessment of (a),
(b) and (c) the court will then, as a final step,
determine whether
the party burdened with the
onus
of proof has succeeded in discharging it.”
[22]
[24]
The commissioner’s prime function was
to determine the truth from the conflicting versions before him and
in doing so to make
some attempt to assess the credibility of the
witnesses by reference to any internal and external inconsistencies
that might exist,
to assess their reliability and to consider the
probability or improbability of each party’s version. (See
Isaacs v Education Labour Relations
Council
(unreported) C460/2008).
[25]
The commissioner’s finding that the
onus to prove Ms Roux’s alleged offensive conduct on a balance
of probabilities
had not been discharged, was one made primarily on a
credibility finding made against the applicant and its witnesses and
an acceptance
of the inherent probability of Ms Roux’s version.
This is apparent from the commissioner’s evaluation of the
evidence
before him. The commissioner’s conclusion that Mr
Emslie had been rude to Ms Mabelebele and had used foul language led
him
to conclude that it was not difficult to believe that he would
also have been rude to Ms Roux. This finding is one that is justified
on the evidence before him and is not unreasonable in the
circumstances. The additional findings of the commissioner indicate
an attempt to assess the credibility of the witnesses by reference to
the facts and circumstances before him, to assess their reliability
and to consider the probability or improbability of each party’s
version.
[26]
A review court should not interfere with a
credibility finding given that the court, unlike the commissioner,
lacks the advantage
of first-hand observation of the witnesses and
their demeanour, and where there is no apparent basis from the record
to justify
calling a commissioner’s finding into question.
(See
Isaacs v
Education Labour Relations Council
(unreported) C460/2008 at para 24)
[27]
As stated previously, it is not the
correctness of the commissioner’s decision that this Court must
decide on review. In finding
the dismissal of the applicant to be
substantively unfair, I find that the result falls within the band of
reasonable decisions
which stood to be made by the commissioner based
on the evidence before him and that there exists no basis on which to
interfere
with such decision.
[28]
The last two grounds of review raised by
the applicant relate in the first instance to the finding of
procedural unfairness made
against the applicant by virtue of the
fact that Ms Roux was not permitted to call Ms Mabelebele as a
witness at the disciplinary
hearing; and secondly to the fact that Ms
Roux failed to attend the appeal hearing at which, the applicant
contends, any procedural
or substantive unfairness could have been
remedied. The chairperson did not hear the testimony of Ms Mabelebele
at the disciplinary
hearing. The commissioner recorded in the
arbitration award that the chairperson’s stated reasons for
disallowing the evidence
as being that: it was for Ms Roux to ensure
that her witnesses attended the hearing, if Ms Mabelebele was
telephoned the whole
process would start over again and that her
evidence was only about what was said to her by Ms Roux and not about
what was said
to Ms Roux. The commissioner concluded that all three
reasons were open to criticism. These criticisms were that in terms
of the
notice, the Secretary of the disciplinary hearing was to
ensure the attendance of the witnesses; it was difficult to see how
the
whole hearing would have to start again if Ms Mabelebele
testified; and it was incorrect that her evidence was only about what
she heard from the applicant but would probably have influenced the
outcome of the hearing. The commissioner concluded that
‘(o)verwhemingly,
the evidence showed that Ms Geyer was doing
everything in her power to stop Girly from testifying at the
disciplinary hearing,
and the chairperson was wrong in excluding
Girly’s evidence’. He found that the dismissal was
procedurally unfair in
that Ms Mabelebele was prevented from
testifying.
[29]
The disciplinary hearing notice stated that
Ms Roux was to inform her witnesses to be present at the hearing and
‘(t)he Secretary
will make arrangements for their presence
during the hearing’. In terms of the disciplinary hearing
notice, Ms Geyer was
to ensure the attendance of witnesses. The
minutes of the hearing record that Ms Roux indicated her intention to
call Ms Mabelebele
as a witness and requested at the hearing that Ms
Mabelebele be allowed to testify over the phone given that it was Ms
Geyer’s
role as the Secretary to ensure Ms Mabelebele was at
the hearing. The chairperson refused this request and ruled that it
was Ms
Roux’s responsibility to call witnesses and that she had
had two opportunities to contact witnesses during the hearing. Ms
Roux then asked ‘for permission to phone Ms Mabelebele to hear
if she could come in and testify’. The chair responded
that if
this was allowed, the process would have to start again and the
witnesses had left already and could not be cross-examined.
In the
circumstances, it is clear that Ms Roux was not given the appropriate
opportunity to call Ms Mabelebele as her witness at
the disciplinary
hearing. I find there to be nothing unreasonable in the
commissioner’s conclusion that a procedural unfairness
was
accordingly committed in this regard. Furthermore, the commissioner’s
conclusion that Ms Mabelebele’s evidence
may have influenced
the outcome of the disciplinary hearing, was clearly reasonable given
the evidence before him.
[30]
The last review relating to Ms Roux’s
failure to attend the appeal hearing does not appear to have been
raised in these terms
during the arbitration hearing, although
reference was made in evidence to the failure to attend the appeal.
The commissioner,
during the course of proceedings, did not consider
the issue to be relevant. For purposes of these proceedings, the
applicant,
despite Ms Roux’s failure to attend, had the
opportunity to revisit the decision made at the disciplinary hearing
and arrive
at a different decision on appeal had it seen fit to do
so. It did not. The applicant has accordingly provided no substantive
justification
to this Court to take this ground of review any
further.
[31]
In conclusion, I find that the commissioner
did not misconstrue relevant questions of law and fact during the
course of the arbitration
proceedings. There is nothing before this
Court which indicates that the commissioner committed misconduct in
relation to his duties
as an arbitrator, nor did he commit a gross
irregularity in the conduct of proceedings or exceed his powers. The
findings of the
commissioner fell within a band of decisions to which
a reasonable person could come on the available evidence. On a
consideration
of the grounds of review raised by the applicant, this
Court finds that the application to review and set aside the
arbitration
award must fail.
Costs
[32]
The Court has a broad discretion,
established by section 162 of the LRA, to make an order for costs
according to the requirements
of the law and fairness. The fact that
the applicant has not been successful in this application militates
in favour of a costs
order in favour of the third respondent. There
are no reasons before me to suggest why costs in this matter should
not follow the
result.
Order
Accordingly,
I make the following order:
[33]
The application is dismissed with costs.
_______________________
K M Savage
Acting
Judge
APPEARANCES
APPLICANT:
B Roode
THIRD
RESPONDENT:
L Malan
Instructed
by Finger Phukubje Inc, Johannesburg.
[1]
66 of 1995.
[2]
CUSA
v Tao Ying Metal Industries and Others
2009 (1) BCLR 1.
[3]
[2007]
12 BLLR 1097 (CC).
[4]
[2011]
2 BLLR 129
(LAC) at para 18.
[5]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
at
para100.
[6]
See
A Myburgh ‘Sidumo v Rusplats: How the Courts deal with it’
(2009) 30
ILJ
1.
[7]
Transcript page 83 lines 1-2.
[8]
Arbitration
award page 19 at para 4.2.10.
[9]
Arbitration award, page 24 at para 6.13.
[10]
Arbitration award, page 26 at para 6.28.
[11]
Arbitration award, page 25 at para 6.23.
[12]
Transcript, page 60 line 18.
[13]
Transcript, page 61 lines 1-3.
[14]
Transcript page 69 lines 7-14.
[15]
Page 42 lines 9-10.
[16]
Pages 44-45.
[17]
Page 46 lines 19–23.
[18]
CUSA
v Tao Ying Metal Industries & others
[2008] ZACC 15
;
2009 (1) BCLR 1.
[19]
Transcript, page 70 at lines 18-20.
[20]
Transcript, page 108 at line 16.
[21]
2003
(1) SA 11 (SCA).
[22]
Op
at para 5.