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[2011] ZALCD 25
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Empilweni Management Solutions CC v CCMA (D484/10) [2011] ZALCD 25 (29 June 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD IN DURBAN
Not reportable
Case No: D484/10
In the matter between:
EMPILWENI MANAGEMENT
SOLUTIONS CC
......................................................................
1
st
Applicant
And
THE COMMISSION FOR
MEDIATION
ARBITRATION AND
CONCILIATION
...............................
1
ST
Respondent
COMMISSIONER SUGEN
REDDY
...................................
2
ND
Respondent
KIRUBAN NAIDOO
............................................................
3
rd
Respondent
Date of hearing: 7 June
2011.
Date of Judgment: 29 June
2011.
JUDGMENT
GUSH J
In this matter the applicant applies to have the award
of the second respondent reviewed and set aside and substituted with
an
order dismissing the third respondent’s referral
alternatively referring the matter back to the first respondent to
be
arbitrated afresh by a commissioner other than the second
respondent.
In his award the second respondent held that the
dismissal by the applicant of the third respondent was both
procedurally and
substantively unfair and ordered the applicant to
pay the third respondent an amount of R69,836.00.
The third respondent was represented by an attorney at
the arbitration and the applicant by its human resources manager.
At the commencement of the arbitration the second
respondent recorded that he was required firstly to determine
whether the applicant
was dismissed and if so whether the dismissal
was unfair. It is clear from the record that the applicant through
its representative
at the arbitration disputed that the third
respondent had been dismissed.
After inviting the parties to make opening statements
the record reflects that the second respondent asked the question:
“
The Issues in dispute?
”
To which question the third
respondent’s attorney replied: “
whether
there was a dismissal
”
.
The second respondent then confirmed this by recording “
whether
there was a dismissal,
if
so, when the same was unfair, procedurally and substantively, right,
okay.
We
won’t go into this in detail; I'd rather hear more evidence on
that.
”
1
(My emphasis).
The third respondent’s
attorney confirmed that the onus was on the third respondent to
establish the dismissal, and that
third respondent would so and in
so far as he was able to lead evidence on all issues and that
applicant may wish to establish
that the dismissal was fair “
if
a dismissal is established
”
.
2
The third respondent proceeded to give evidence and was
cross examined by the applicant’s representative. At the
conclusion
of the cross examination, before the third respondents
attorney was given the opportunity to re-examine the third
respondent
the following exchange took place between the second
respondent and the applicant’s representative (Swanepoel).
“
COMMISSIONER: Are you
giving evidence?
MS SWANEPOEL: I will hand in that, I’ll call
them to send through the order, to deliver the order.
COMMISSIONER:
Someone's
going to have to give evidence as to, I am not just going ...
MS SWANEPOEL: Rina is, her husband is being
retrenched socially accepted the position in Johannesburg so she is
no longer with Empilweni,
they’ve (inaudible) so I can’t
bring her in.
COMMISSIONER: okay, but you are with the HR, who
represented people at, you know that I've got to, I'm not going to
accept ...
MS SWANEPOEL: I will submit ...
COMMISSIONER: ... Documents...
MS SWANEPOEL: I will submit the order that the client
has given us on which you must invoice Kiruban, which states that
there is
no dates. I will get (inaudible).
COMMISSIONER:
okay,
we'll deal with that when we get to it. But just remember that I'm
not going to accept any hearsay evidence
.”
3
(My emphasis).
At the end of this exchange the second respondent
invited the applicant’s representative to proceed with her
cross examination.
The applicant’s representative indicated
that she had no further cross examination and the third respondent’s
attorney
was invited to re-examine. He declined and indicated that
he was closing his case. In response the second respondent adjourned
proceedings. That concluded the arbitration. There is no record of
the second respondent inviting the applicant’s representative
to lead evidence on the fairness or otherwise of the dismissal. This
is particularly startling given his earlier insistence on
hearing
evidence or any indication from the second respondent of the
consequences of a failure to lead evidence. The second respondent
gave no indication whatsoever that he had concluded that there was a
dismissal and that it was in the circumstances incumbent
upon the
applicant to prove that the dismissal was fair.
It is clear from the record and the award that at no
stage did the second respondent invite the applicant to adduce any
evidence
regarding the fairness or otherwise of the dismissal. Under
the heading background the second respondent discusses submissions
made by the applicant’s representative in her opening
statement. Under the heading “
evidence”
he
considers only the evidence lead by the third respondent and makes
no reference to any evidence for the applicant
.
Likewise his
assessment of the evidence is confined only to that of the third
respondent.
Section 192 of the Labour Relations
Act
4
provides:
In any proceedings concerning any dismissal, the
employee must establish the existence of the dismissal.
If the existence of the dismissal is established,
the employer must prove that the dismissal is fair.
Our courts on a number of occasions and held that there
is a duty on an arbitrator to assist parties who are not represented
in
arbitration. This is particularly so where the third respondent
was legally represented. I am of the view that the matter was
sufficiently complicated for the second respondent to have at least
explained to the applicant’s representative the niceties
of
the onus set out in section 192, or suggested to the applicant’s
representative that she seek legal advice. Conspicuous
by its
absence is any reference in the record to the application of rule
25(3)(c) of the Rules of the first respondent in the
light of the
fact that the dispute involved the fairness of a dismissal.
The only inference that can be drawn from the record is
that the second respondent on a number of occasions unequivocally
indicated
to the applicant’s representative that he required
her to lead evidence, but inexplicably at the conclusion of the
re-examination
and closing of the respondent's case the second
respondent simply adjourned proceedings and handed down his award
without expressly
giving the applicant’s representative an
opportunity to do so. It is surprising that the second respondent’s
failure
to give the applicant’s representative an opportunity
to lead evidence was not pointed out to him by the third respondents
attorney and that the matter was simply left to peter out after the
third respondent insisted on seeing the original contract
and the
matter was adjourned.
I am satisfied that the second respondent committed a
gross irregularity in the conduct of the proceedings by despite
advising
the applicant’s representative that he required her
to lead evidence did not specifically give her an opportunity to
adduce
evidence, but simply adjourned the matter and handed down an
award without inviting the applicant to lead evidence to rebut the
onus in section 192 (2) at the conclusion of the third respondent’s
case.
It is so that the applicant’s notice of motion,
founding and replying affidavits do not succinctly set out these
facts as
grounds of review. However the applicant’s main
ground of appeal is that the conduct of the second respondent in
failing
to advise her that in the light of the third respondent
being legally represented that she should consider obtaining legal
representation,
is in the circumstances the effective cause of the
irregularity.
I am satisfied in the circumstances, particularly the
fact that nowhere in the record does it reflect that the second
respondent
explained the shift in the onus where it is disputed that
the employee was dismissed and his subsequent conduct as set out
above,
that the award of the second respondent should be reviewed
and set aside.
In the absence, however, of any evidence from the
applicant regarding the fairness or otherwise of the dismissal the
court has
no option but to refer the matter back to the first
respondent to be heard afresh.
In the particular circumstances of this matter fairness
dictates that there should no order as to costs.
I according make the following order:
The award of the second respondent in CCMA case number
KNDB682-10 is reviewed and set aside and referred back to the
|first
respondent to be heard afresh before a commissioner other
that the second respondent;
There is no order as to costs.
GUSH J
Appearances:
For the Applicant: Adv P J Wallis; Instructed by Deneys
Reitz Attorneys
For the 3
rd
Respondent: Mr R B Donnachie;
Henwood Britter and Caney Attorneys.
1
Record
page 84 lines 15 – 19.
2
Record
page 85/6 lines 21 - 04
3
Record
page 123/124 lines 12 – 03.
4
No
66 of 1995.