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[2011] ZALCD 48
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Creative Wood Design CC v Adjodha and Others (D681/07) [2011] ZALCD 48 (18 February 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN DURBAN
Case
no: D 681/07
In
the matter between
CREATIVE
WOOD DESIGN CC
Applicant
And
D.
ADJODHA
Fist
Respondent
M.
MASIPA
Second
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Third Respondent
JUDGMENT
SHAI,
AJ
INTRODUCTION
[1]
This is an application for the review and setting aside of an award
issued by the Second Respondent
“
the
commissioner
”, dated 24 September
2007 under case no KNDB9010-07 and issued under the auspices of the
Third Respondent. The Commissioner
had found that the dismissal of
the First Respondent was unfair. The First Respondent is opposing the
application.
[2]
The First Respondent was employed by the Applicant as a driver, and
in addition he assisted with loading
of vehicles and other aspects as
may be required. He was charged of “unauthorized absence from
the firm from the period of
18 June 2007 to 20 June 2007” and
dismissed. He challenged the fairness of his dismissal within the
auspices of the Third
Respondent whereupon the Second Respondent as I
said earlier found the dismissal to be unfair and ordered that he be
compensated
for his dismissal.
THE FACTS
[3]
At arbitration hearing the Applicant led evidence that its managing
member, Mr Cominos (“
Cominos”)
received a message on 18
th
June 2007 from a person who normally travels with the First
Respondent, that he had dropped the First Respondent at White House
to attend to a private matter, and would arrive at work at 10h00.
When he did not arrive at 10h00, Cominos, called him on his cellular
number, and when he failed, he called his home telephone line. It was
then confirmed that he had gone to the rent office but would
report
for duty.
[4]
The following day, when he did not arrive again, Cominos phoned and
the First Respondent said he had
a sore back and would be visiting
the doctor the following day. On the fourth day, being the Thursday,
the First Respondent reported
for duty. At about 12h00, Cominos asked
him where he was and he said he had a sore back but he had no medical
certificate. As a
result Cominos told him that he will hold an
enquiry to determine whether that absence was authorised.
[5]
During the course of the day the First Respondent went to the doctor
to obtain the medical certificate.
The medical certificate only
covered 19-20 June 2007 and not 18 June 2007. Further that it
recorded only that the doctor was informed
by the First Respondent
that he could not perform any work on 19 and 20 June 2007 due
to pain. This kind of medical
report is not acceptable or
bonafide
in the industry, firstly, because there is no diagnosis and the
doctor was visited after the fact. He further testified that the
First Respondent had previous warnings and was also sitting on a
final written warning for being absent from work without
authorisation.
The Applicant has a policy which requires employees to
get permission to be absent from work and evidence was led that the
First
Respondent knew about it and had signed for it.
[6]
The First Respondent testified and confirmed that he was dismissed
for being absent from work without
authorisation and that he did not
contact Mr Cominos as he had no airtime. When he was told that at the
disciplinary hearing he
never mentioned that he had a sore back on 18
June 2007, he said that he did not want to say all at the
disciplinary hearing. At
the arbitration he insisted that he had a
sore back on 18 June 2007 as well. It appears that at the
disciplinary hearing he testified
that on 18 June 2007 he did not go
to work because he had a private matter to attend to.
At
the end of the disciplinary hearing he was found guilty and
dismissed. He then referred the dismissal dispute to the CCMA and
as
I said in paragraph 2 above the Second Respondent found the dismissal
to be unfair and ordered Compensation in his favour. It
is this award
that is subject to this review application.
GROUNDS
FOR REVIEW
[7]
The Applicant grounds of review are listed as follows:
7.1
The Second Respondent failed to take into account all material which
was before her at the arbitration
when coming to a decision.
7.2
The Second Respondent appeared to have considered that the mere
existence of a factual dispute must
be inevitably lead to finding
that the onus of proving that a dismissal was fair, has not been
discharged.
7.3
That the Second Respondent has failed to asses the credibility of the
witnesses, a consideration of
inherent probability or improbability
of the version that is proffered by the witnesses, and an assessment
of the probabilities
of irreconcilable versions before the
commissioner.
[8]
From the above it is clear that the Applicant’s complaint
against the Second Respondent is that
she failed to take into account
all the material that was before her and that as a result failed to
assess the said evidence as
a reasonable commissioner should have
done. The three criticisms are interrelated.
EVALUATION
[9]
The test for review has been laid out in the well known case of
Sidumo & Another v Rustenburg
Platinum Mines Ltd & Others
[2007] 12 BLLR 1097
[CC]
.
The court therein held that the provisions of
s
145
of the Labour Relations Act 1995 (“
the
LRA”)
were suffused by the
constitutional standard of reasonableness. This is arrived at by
answering the question which was formulated
in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs &
Others
[2004] 7 BLLR 687
[CC]
as
follows: Is the decision reached by the commissioner one that a
reasonable decision maker could reach? To succeed in this application
the Applicant must therefore satisfy this court that the Second
Respondent’s decision is one that a reasonable arbitration
could not have reached.
[10]
In
Sidumo & Another v Rustenburg
Platinum Mines Ltd & Others
at
para 286 the court said the following on this point. “Where a
commissioner fails to have regard to the material facts,
the
arbitration proceedings cannot, in principle, be said to be fair
because the commissioner fails to perform his or her mandate.
In so
doing, in the words of Ellis the commissioner’s action prevents
the aggrieved party from having its case fully and
fairly determined.
This constitute a gross irregularity in the conduct of the
arbitration proceedings, as contemplated by section
145(2)(a)(ii) of
the LRA. And the ensuing award falls to be set aside not because the
result is wrong but because the commissioner
has committed gross
irregularity in the conduct of the arbitration proceedings.”
[11]
Going through the award it is clear that the commissioner failed to
take into account the disciplinary record
and evidence which was part
or tendered at the arbitration hearing. It was testified at the
arbitration hearing that the First
Respondent gave the reason of not
reporting for duty as being to attend to a private matter which
turned to be a rent issue. Indeed
going through the record the First
Respondent confirmed at the disciplinary hearing that he had to
attend to issues relating to
rent and was taken from pillar to post.
However, at the arbitration hearing he said that he did not report
for duty because he
had a sore back including also on 18 June 2007.
When he was asked about this contradiction he said he did not want to
say much
at the disciplinary hearing. It is clear from the award that
he commissioner ignored this part of evidence.
[12]
Grogan J. The South African Law of Dismissal Juta (2002) at 320 says
of the nature of the arbitration hearing:
“
Arbitration
of unfair dismissal disputes is not merely a review of employer’s
conduct, but a full hearing of the merits.”
See
also
Gibb v Nedcor Ltd [1997] 19 ILJ
364
. The above statement shows the
hybrid nature of the arbitration hearing. That is, as much as it is a
fresh hearing in the sense
that new evidence may be led, however,
evidence that was led at the disciplinary hearing and placed before
the commissioner at
the arbitration hearing cannot be simply be
ignored. It is my view that had the commissioner considered this
evidence especially
at the time he was weighing the versions of both
parties to determine whether the Applicant has discharged its onus to
justify
the dismissal he would have found that the credibility of the
First Respondent would be at stake because of contradictory nature
of
his evidence and also the fact that he procured the medical
certificate after the fact. The issue was whether on 18 June 2007
the
First Respondent had authority to be absent from his work. He
did not have and offers this contradictory evidence.
[13]
The second ground of review is that the Second Respondent appears to
have considered that the mere fact of
the existence of a factual
dispute must inevitably lead to finding that the onus of proving that
a dismissal was fair, has not
been discharged. The commissioner, at
paragraph 23 of her award says the following:
“
It
is common cause that on Monday 18 June 2007, the Applicant sent a
message through Rajpaul. What is not clear is the nature of
that
message. On his version, he felt pain on his way to work and asked
him to inform Mr
Comins that he would not
able to report for duty on that day. Both versions are equally
probable and especially because the applicant
did not attend work two
successive days thereafter”
Mr
Comins’s evidence however, was that Rajpaul informed him that
the Applicant would be arriving for work at 10h00 and when
he did not
arrive, he called the Applicant to establish where he was and was
informed that the Applicant would arrive for work.
[14]
Had the commissioner taken into account the evidence by the First
Respondent at the disciplinary hearing
he would have realised that
there is clear contradiction in his evidence at the arbitration. At
the arbitration he led evidence
as aforesaid but at the disciplinary
hearing he confirms that he had to attend to a private matter. At
page 18 of the index arbitration
record bundle of documents the Fist
Respondent testified as follows:
“
I
had a problem on Monday morning I had to sort out some matters, Mr
Cominos is aware of the problem was in terms of me telling
him about
a week before my accident that I had 14 days in which to pay a sum of
R3 000.00 transfer fees… I jumped into the
car I said to the
guy please convey a message that I will try to be there I said to him
I repeat I will try to be there 10h00.”
This
evidence is also consistent with Mr Cominos’s evidence that
someone at the First Respondent’s house told him that
he had
gone to the rent office and will be arriving for work that day. This
evidence was led at both the disciplinary hearing and
arbitration.
[15]
It is common cause that when a
trier of facts is faced with a factual dispute, he has to rely on
assessment of the credibility of
witnesses. On this point
the court in the case of
SteellenboschFarmers
Winery Group Ltd & Another v. Martell et Cie & others (1) SA
11 (SCA)
said the following:
“
to
come to a conclusion of the disputed issue a court must make findings
on: (a) the credibility of various factual witnesses, (b)
their
reliability, and (c) the probabilities. As to (a), the court’s
findings on the credibility of a particular witness
will depend on
its impressions on a variety of subsidiary factors, not necessarily
in order of importance, such (i)as 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’s
reliability will depend from the other facts mentioned under (a) ii,
vi and v above.
On (i) the opportunities he 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 of each party’s
version
on each of the disputed issues. In the light if the
assesment 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. The hard case which will doubtless be a
rare
one occurs when a court’s credibility findings compel it
in one direction and it’s evaluation of the general
probabilities
lies in another. The more convincing the former,
the less convincing will be the latter. But when all factors are
equiposed,
probabilities prevail.”
[16]
The above process is lacking in the award of the Second Respondent.
Had the Commissioner assessed the evidence
as above he would have
made a credibility finding in relation to the contradictory evidence
by the First Respondent and certainly
an adverse one.
[17]
Hence I find that the commissioner committed a reviewable
irregularity for failing to take into account all
the evidence before
him and asses it as a reasonable commissioner would have done.
[18]
I have already found above, that the commissioner has failed to take
all evidence into account and to asses
it as he should. In such
circumstances the court shall interfere with the award. In my
view, it will serve no purpose
to refer the matter back to the CCMA.
Taking into the account that the Applicant was on a final written
warning for a similar offence
I make the following order:
[19]
I will substitute the order of the commissioner with the following
order:
1.
The award issued by Second Respondent dated
24 September 2007 under case number KMDB 9010-07 is reviewed and set
aside.
2.
The dismissal of the First respondent is
substantively fair.
3.
I make no order as to costs.
_____________
SHAI
AJ
DATE
OF HEARING
:
3 FEBRUARY 2011
DATE
OF JUDGMENT
: 18
FEBRUARY 2011
Appearances:
On
behalf of the Applicant
: Mr Roy Monk
of
LIVINGSTONE
LEANDY
INC.
On
behalf of the Respondent :
Mr T. Sithole of LEGAL AID
of
SOUTH
AFRICA