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[2012] ZALCJHB 9
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Rambar Construction (Pty) Ltd t/a Rixi Taxi v Commission for Conciliation, Mediation and Arbitration and Others (JR 535/2010) [2012] ZALCJHB 9; (2012) 33 ILJ 1911 (LC) (20 January 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 535/2010
In the matter between:
RAMBAR CONSTRUCTION
(PTY) LTD t/a RIXI TAXI
…........................................
Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
…...........................................................
First
Respondent
COMMISSIONER ELSABE
MAREE
…..................................................
Second
Respondent
GALI LEONARD SKHOSANA
…................................................................
Third
Respondent
Heard on: 03 November
2011
Delivered on: 20
January 2012
___________________________________________________________________
JUDGMENT
BOQWANA AJ
Introduction
This is a review
application in terms of section 145 read with section 158(g) of the
Labour Relations Act
1
(‘the LRA’)
to review and set aside the arbitration award made by the second
respondent (‘the commissioner’)
on 07 November 2009
under case number GATW5129-09. The commissioner found that the
dismissal of the applicant was substantively
and procedurally unfair
and ordered the applicant to pay the third respondent compensation
in the amount of R81 900 representing
the third respondent’s
remuneration for the period of 9 months.
The applicant received
the arbitration award on 23 November 2009 and brought a rescission
application in terms of section 144
of the LRA under the auspices of
the first respondent (‘the CCMA’) on 07 December 2009.
On 26 January 2010 the
applicant was advised by the CCMA that its application for
rescission was defective as both parties were
represented during the
arbitration and thus not in compliance with section 144. The
applicant was accordingly advised by the
CCMA that the correct
procedure would be to refer the matter on review before this court.
The review application
was preceded with the condonation application. The condonation
application is unopposed. I will deal with
both condonation and the
review applications in this judgement.
Background facts
The third respondent was
employed by the applicant since 1978 until his dismissal on 21 April
2009.
The applicant provided
transport services to the public via a metered taxi service in and
around Pretoria. The third respondent
was responsible for management
of the vehicles, personnel and looked after administration systems.
The applicant had 20
drivers working with each vehicle equipped with a tracker system to
monitor the movements of the vehicle
and to ensure that the drivers
recorded kilometres that corresponded with monies collected.
It was allegedly the
third respondent’s duty to ensure that this was done and to
bank the monies. This was a very important
management tool to ensure
that drivers do not pocket the money.
On 26 February 2009 the
applicant was called into a meeting with the manager and the owner
of the applicant where his performance
was discussed. On 20 March
2009 it was determined that his performance had not improved and a
disciplinary hearing was then called.
A disciplinary hearing was
then held and a final written warning was issued.
On 8 April 2009 an email
was sent to the third respondent informing him what was expected of
him.
A
month later another disciplinary hearing was scheduled, where a CCMA
commissioner was asked to preside over and the third respondent
was
dismissed for misconduct.
The third respondent
referred his dismissal to the CCMA.
Arbitration award
The commissioner found,
inter alia, that:
‘
38. Despite
this rather long-winded explanation the evidence as to how the
applicant failed to meet a performance standard was vague
to the
extreme’
39. An arbitration is a hearing
de
novo
where onus of proof rests with the respondent to prove, on a
preponderance of probabilities that the applicant failed to meet a
performance standard.
40. It is simply not good enough to
merely refer to “all the documents” that were given to
the chairperson at the disciplinary
hearing.
41. It is also not good enough to
refer in vague terms to “bad service”. The details of the
“bad service”
needs to be spelled out and needs to be
supported by proper service.
42. In view of this I cannot find that
the applicant failed to meet a performance standard.’
In essence the
commissioner found proper evidence was not led to support the claim
of poor work performance. In view of her findings
in that regard,
the commissioner did not see a need to determine whether the
guidelines set out in schedule 8 of the Code of
Good Practise of the
LRA were followed as that exercise would be superfluous. The
commissioner ordered compensation to the tune
of R81 900
equivalent to R9100 (third respondent’s salary) x 9.
Grounds for review
In summary, the
applicant alleges that the commissioner 'misconducted' herself in
the hearing of the arbitration and committed
gross irregularity in
that:
Her arbitration award
does not correlate with her findings of fact and is not justifiable
in relation to the evidence that was
before her;
She did not apply her
mind to the evidence before her;
She exceeded her powers
in making such an order and reaching such a conclusion;
Her finding was
unreasonable in relation to the evidence that were before her and
issues presented to her; and
The decision reached by
the commissioner is one that a reasonable decision maker would not
have reached.
The
applicant further elaborated on its grounds for review by stating
that
the commissioner disregarded evidence before her which
clearly showed that there was a clear performance standard, which
the third
respondent failed to adhere to.
The applicant alleged
that emails exchanged between the third respondent and one James
Chapman (‘Chapman’) clearly
substantiated this.
The applicant further
submitted that the commissioner had been referred to a bundle during
the arbitration proceedings which contained
summaries of reports but
‘clearly’ failed to take this ‘evidence’
into account. An allegation is made
against the commissioner that
she failed to take into account variances and also gave no
cognisance to the fact that the third
respondent during the period
of 1 March 2009 up to 07 April 2009, a period of 38 days only
checked and verified 13 days worth
of reports, approximately 34% of
the work.
The applicant dealt with
SYTRAX Reports since 2005 and therefore knew what was expected of
him. During May 2008 and February 2009
SKYTRAX reports were
administered by another employee of the applicant but the third
respondent specifically wanted it moved
back to him. The applicant
was given a month to re-acquaint himself with SKYTRAX system. When
investigations were done it was
found that checks were not done by
the third respondent.
Condonation
application
Section 145(1)(a) of the
Labour Relations Act 66 of 1995 (‘the LRA’) requires a
party wishing to review arbitration
proceedings in which it alleges
there is a defect, to file such application within six weeks of the
date upon which the arbitration
award was served on that party.
Section 145(1A) however allows for the condonation of the late
filing of the application.
The test for good cause
is well established:
‘
The approach
is that the court has discretion, to be exercised judicially upon a
consideration of all the facts, and in essence
it is a matter of
fairness to both sides. Among the facts usually relevant are the
degree of lateness, the explanation therefor,
the prospects of
success and the importance of the case. These facts are interrelated;
they are not individually decisive. What
is needed is an objective
conspectus of all the facts. A slight delay and a good explanation
may help to compensate for prospects
of success which are not strong.
The importance of the issue and strong prospects of success may tend
to compensate for a long
delay. There is a further principle which is
applied and that is that without a reasonable and acceptable
explanation for the delay,
the prospects of success are immaterial,
and without prospects of success, no matter how good the explanation
for the delay, an
application for condonation should be refused…’
2
In respect of
condonation for the late filing of a review application the
applicant is required to provide a ‘compelling’
explanation and show that he has ‘strong’ prospects of
success.
The applicant’s
grounds for condonation for failing to institute these proceedings
within six weeks are set out in his founding
affidavit.
Extent of the delay
The applicant does not
set out the degree of the delay in its founding affidavit however,
it has stated that it received the arbitration
award on 23 November
2009. The review application should accordingly have been lodged by
04 January 2010. The review application
was referred to this court
on 10 March 2010, which means the review application was lodged
approximately 9 weeks late.
Explanation for the
delay
On 07 December 2009 the
applicant lodged a rescission application with the CCMA alleging
that it was and still is of the belief
that the arbitration award
was erroneously sought and made.
On 26 January 2010 the
applicant was informed by the CCMA that its rescission application
was defective and that the correct procedure
would be to lodge a
review application in this court.
That is the only
explanation given as a reason why the review application was brought
outside the six weeks period. Other than
that the applicant alleges
that in keeping with previous judgements of this court, (which
judgements were not submitted by the
applicant) the calculation of
the six weeks period should start from the day the CCMA notified the
applicant that the rescission
application was defective. I must
mention that it is not the CCMA that referred a dispute to this
court but it simply informed
the parties
via
a letter that
the correct procedure was to bring a review application in terms of
section 145 of the LRA.
Apart for the
explanation regarding those two dates mentioned above, no other
explanation is offered by the applicant as to why
it took so long to
lodge a review application. I find this explanation quite thin as it
does not deal with the period after the
applicant was notified by
the CCMA that the rescission application was defective and that the
correct procedure was bringing
the matter on review.
The review application
was not brought until 10 March 2010, which was a further delay of
approximately 6 weeks after being nofitied
of the defect by the
CCMA. During the rescission application to the CCMA, the applicant
was allegedly represented by an Employer’s
Organisation. It is
quite telling that an Employer’s Organisation that ought to be
au fair
with the prescripts of the LRA would advise their
member to lodge a rescission application when there was absolutely
no basis
to do so. In any event that process did not proceed after
the CCMA letter.
Even if the court were
to accept the applicant’s submission that the court should
start counting the days from the date
of the CCMA letter the
applicant still failed to bring the review application at least
immediately after 26 January 2010 and
failed to offer any kind of
explanation for that delay.
When the court engaged
Ms Duvenage, who appeared for the applicant on this issue, she
attempted to give evidence from the bar
stating that her offices
were approached by the Employer’s Organisation to assist with
the matter and establish if there
were grounds for review. She
stated that her office was asked to peruse the bundle which was
quite extensive. I obviously cannot
allow counsel to give evidence
in the manner that Ms Duvenage sought to do. Her ‘explanation’
from the bar in any
event still lacked any sufficient detail that
could be accepted by the court. Ms Duvenage failed to state when her
office was
approached and what steps she took to bring this
application as soon as she could after instructions were given to
her. The court
still does not know what happened between 26 January
2010 and 10 March 2010.
In my view condonation
application is capable of being dismissed simply on this basis
alone. I nevertheless will also deal with
the merits of this case in
order to ascertain whether any prospects of success do exist in this
case coupled with the grounds
for review that have been brought
before me.
Merits of the case
The difficulty that the
applicant is faced with in its case is that it acknowledged that it
made an error in leaving out material
evidence in its rescission
application to the CCMA. The rescission application was filed with
the record from the CCMA. Mr Mphepya
who represented the third
respondent referred to the concessions made in the rescission
application. Although it is not the CCMA’s
rescission
application that is to be determined by this court, the averments in
those papers are quite instructive.
The witness at the
arbitration hearing was Kevin Cromhout (‘Cromhout’).
Cromhout acknowledged in his supporting affidavit
to the rescission
application that he caused the error by not submitting all the
evidence of this matter to the commissioner
during the arbitration
process as a result of his ignorance and inexperience regarding
arbitration process. Cromhout averred
therein as follows:
‘
2.1 I
only
had copies of what
I
thought
would be sufficient to proof (sic) my case without going into too
much detail.
2.2 I did
not
have ALL the
above
documents
nor any other
witness
, because
I am
not familiar with the Arbitration process
and I did not know
exactly what was required from me. I thought that I was properly
prepared, but in terms of the law of evidence,
as I understand it
from the commissioner’s award, it is clear that I totally
misunderstood the process and I did not submit
ALL the evidence that
I was supposed to.
2.3 I now see that my failure to
submit all the elaborate and direct evidence caused the employer to
suffer unnecessary and unjust
prejudice in this matter and I wish to
rectify it since I have learned from the Arbitration process and
I
wish to submit all the evidence so that the honourable commissioner
can make a ruling which is based on ALL the facts.
Due to my
error the honourable commissioner did not have all the facts to make
a fair ruling. I want to rectify this by submitting
all
the
facts, because I believe that she would come to a
different
conclusion
if she has all the necessary evidence and facts at
her disposal.’
Cromhout goes on further
to say in his supporting affidavit to the rescission application:
‘
We were of
the opinion that because he was from the CCMA (i.e. the chairperson
of the disciplinary inquiry), the mere fact that
he did the
disciplinary enquiry and outcome, would be sufficient for us and CCMA
to agree with him, irrespective of what the outcome
was. In this way
we felt that we would have eliminated all risk for a possible unfair
dismissal’. (my own insertion)
The applicant went on to
introduce ‘new evidence’ that it erroneously omitted
whilst Cromhout was presenting his evidence.
From this it is clear
that the commissioner was not presented with the evidence that would
support the applicant’s case
at the arbitration. Having looked
at Cromhout’s concessions above, it really baffles my mind how
the commissioner can be
criticised for failing to take into account
any of the material evidence when that was not presented before her
by Cromhout as
he himself acknowledged. The applicant sought to
introduce new evidence
via
a rescission application. By doing
so it is clear to me that the applicant sought to have ‘a
second bite at the cherry’
by referring the matter for
rescission on the basis of ‘an obvious error in the facts that
is reflected from the proceedings.’
Be that as it may the
rescission application did not proceed as the CCMA correctly advised
the applicant that the application
was defective. Section 144 of the
LRA provides no grounds for a rehearing of the matter on the basis
of a party’s ‘error’
or omission to present
material evidence before the commissioner.
Coming back to the
application before me, although concessions similar to those in the
rescission application have not been made
in the review application
the applicant also seeks to introduce new evidence in its founding
affidavit by making averments and
attaching documents which were
never presented to the commissioner as evidence in an attempt to
convince this court that the
commissioner committed gross
irregularity by omitting such evidence.
I have read the CCMA
transcribed record of the proceedings and I found very little
evidence focusing on the reason for the dismissal
of the third
respondent. The third respondent was charged with not completing the
SKYTRAX admin and when inspected it was found
that it was seven days
behind. Due to not checking the SKYTRAX, management took the SKYTRAX
function away from the third respondent,
which showed five other
staff members to be falsifying records within two days. This
allegedly resulted in continuous performance
below standard despite
previous disciplinary hearing was held on 26 March 2009, failing to
carry out instructions of management,
dishonesty concerning work
done and poor work performance which cost the applicant financially
as a result.
Cromhout’s
evidence focused mainly on the final written warning culminating
from the disciplinary hearing previously held.
The commissioner
correctly cautioned that the arbitration hearing was about the
dismissal dispute and not a rehearing of the
case where the final
written warning was issued against the third respondent. Although
the fact that the third respondent had
been given a final warning
before is an important consideration, it does not substitute the
need for the applicant to provide
proper evidence as to why the
third respondent was dismissed. The commissioner did not disregard
the fact that there was a final
written warning she simply said
that, that was not the dispute before her. Surely the commissioner
could not simply confirm the
fairness of the dismissal based on a
previous a final written warning without sufficient evidence led on
the reasons for the
actual dismissal.
Ms Duvenage who appeared
on behalf of the applicant was at pains in trying to convince the
court that the employer was entitled
to expect satisfactory conduct
and went into some detail explaining that there were facts to show
that the third respondent had
performed poorly. It may be so, but
that is the evidence that should have been led at the arbitration.
The fact that the
applicant spent time elaborating on evidence in its founding
affidavit that was not placed before the commissioner
does not help
its case at all. It is well and good to make allegations and good
submissions on applicable principles relating
to poor work
performance, that however should have been placed on evidence before
the commissioner. Parties cannot come before
court with fresh
evidence no matter how good it is and hope that the court would find
in their favour when that evidence ought
to have been brought and
tested at the arbitration level by the commissioner. Ms Duvenage
referred me to some snippets of the
evidence where Cromhout made
reference to SKYTRAX but that did very little to demonstrate reason
for dismissal.
It is also not enough
for parties to place a bundle of documents before the commissioner
and hope that the commissioner will in
his or her wisdom be able
sift through the bundle of documents to try and ascertain what the
case is all about without properly
being referred by a party relying
on a document in the said bundle. Reference to an ‘email
attached to the bundle’
without specifically mentioning which
email and where it is found in the bundle is not helpful either as
there could be a few
emails in the bundle. Specific evidence must be
led to afford the other party a chance to comment on specific
allegations.
If the commissioner
simply took into account a bundle of document without any specific
evidence being led, the commissioner would
in my view be acting
irregularly as he or she would be taking into account documents that
the other party to the dispute had
no opportunity to comment on.
Further there might a danger where a commissioner may incorrectly
place the content of documents
out of context.
It does also appear that
at the disciplinary hearing the third respondent was dismissed for
misconduct but the case brought against
him at the arbitration
seemed to be that of poor work performance. The applicant failed to
lead evidence on charges of misconduct
other than on the sub charge
of poor work performance. One of the sub charges was that the third
respondent was dishonest in
carrying out the work done. That is a
very serious allegation which ought to be supported by evidence.
That however did not happen.
It appears that evidence
in the disciplinary hearing was led by a different witness Chapman
whilst Cromhout who took no part at
the disciplinary hearing gave
evidence at the arbitration. This gives more of a reason why the
evidence would need to be comprehensively
led and documents handed
in explained to the commissioner.
Further, the applicant
cannot expect the commissioner to simply accept the finding of the
chairperson of the disciplinary hearing
just because the chairperson
of the inquiry was a CCMA commissioner asked by the employer to
chair the disciplinary hearing.
In
Sidumo
the court held as
follows:
‘
It
is a practical reality that in the first place it is the employer who
hires and fires. The act of dismissal forms the jurisdictional
basis
for a commissioner, in the event of an unresolved dismissal dispute,
to conduct arbitration in terms of the LRA. The commissioner
determines whether the dismissal is fair. There are therefore no
competing “discretions”. Employer and commissioner
each
play a different part. The CCMA correctly submitted that the decision
to dismiss belongs to the employer but the determination
of its
fairness does not. Ultimately, the commissioner’s sense of
fairness is what must prevail and not the employer’s
view. An
impartial third party determination on whether or not a dismissal was
fair is likely to promote labour peace.’
3
It
is trite that regardless of what transpired at the disciplinary
enquiry an arbitration hearing is a hearing
de
novo.
This means that the employer
has the onus to prove at the arbitration, on a balance of
probabilities that the employee’s
dismissal was substantively
and procedurally fair
in terms of section 192(2) of the LRA
.
In
order succeed in a review application the applicant must show that
the commissioner’s decision is that which a reasonable
commissioner could not reach. In my view the applicant has not been
able to do that. In that regard, there are no prospects that
the
review application would succeed.
4
The
task I have is to ensure that the decision taken by the commissioner
falls within the bounds of reasonableness
.
5
The commissioner’s
award has not been shown to be so unreasonable that no
decision-maker could have reached it as illustrated
above.
The merits of the
application for review are therefore not good.
On the issue of costs I
see no reason why costs should not follow the cause.
In the circumstances I
make the following order:
The condonation and the
review applications are dismissed.
The applicant is ordered
to pay the third respondent’s costs.
__________________
BOQWANA AJ
ACTING JUDGE OF THE
LABOUR COURT
APPEARANCES:
For the applicant: Ms
Duvenage, Duvenage Attorneys, Pretoria
For the third respondent:
Mr K F Mphepya, Legal Aid South Africa, Johannesburg
1
Act
No 66 of 1995
2
NUM
v Council for Mineral Technology
[1999]
3 BLLR 209
(LAC) at –para 10. See also
Foster
v Stewart Scott Inc
(1997)
18
ILJ
367
(LAC) at 369C - E; and
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531
(A) at 532 B - F.
3
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28
ILJ
2405
(CC) at para 75.
4
Sidumo
above (2007) 28
ILJ
2405 (CC) at para 109; and
Fidelity
Cash Management Service v CCMA and Others
(2008) 29
ILJ
964 (LAC) at para 103.
5
Sidumo
(supra)
at para 118 - 119.