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[2012] ZALCJHB 54
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The Only Professional Modern Autobody CC t/a Modern Collission Centre v MISSA obo Gouws and Others (JR2811/2010; J2215/10) [2012] ZALCJHB 54 (14 June 2012)
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Of interest to other Judges
case no: JR 2811/2010 and J 2215/10
In the matter between:
THE
ONLY PROFFESSIONAL MODERN AUTOBODY CC
t/a
MODERN COLLISSION CENTRE
…......................................................
Applicant
and
MISSA
obo PJ Gouws
…................................................................
First
Respondent
E
RICHTER
N.O
….....................................................................
Second
Respondent
THE
DISPUTE RESOLUTION CENTRE FOR
THE
MOTOR INDUSTRY BARGAINING COUNCIL
…..................
Third
Respondent
Heard
:
26
January 2012
Delivered
:
14 June 2012
Summary: Review application- failure to file the full record and
to substantiate the legal grounds upon which review based.
JUDGMENT
Molahlehi, J
Introduction
This is an application to review and set aside the arbitration award
of the second respondent (the arbitrator) made under case
number
MINT 23883F, dated 29 September 2010. In terms of that arbitration
award, the arbitrator found that the dismissal of Mr
Gouws
(hereinafter for ease of reference referred to as “the
employee”) to have been both substantively and procedurally
unfair.
The employee who was, prior to his dismissal, employed as a general
worker was assisted by his union, MISA during the arbitration
hearing. MISA is a trade union registered in terms of the Labour
Relations Act of 1995 (the LRA). The third respondent is the
Dispute
Resolution Centre for the Motor Industry Bargaining Council,
referred hereinafter as “the DRC.”
The employee has, on the other hand, applied to have the arbitration
award made an order court in terms of section 158 (1) (c)
of the
LRA.
Background facts
The employee was prior to his dismissal charged with the following
offences:
‘
Failure to report for duty on 20 and 21
April 2010, without obtaining the necessary permission from
management.
Failure to comply with the
company rules and regulations when being absent.’
It is recorded in the minutes of the disciplinary hearing that the
employee pleaded guilty to charges against him.
In support of its case that the dismissal was for a fair reason, the
applicant presented during the arbitration hearing the testimony
of
two witnesses. The first witness was Mr Higgs who testified that he
was approached by one of the employees, named Douglas,
who informed
him that the employee’s fiancée who was pregnant was
bleeding.
Mr Higgs advised Douglas to arrange transport to take the employee
to Bethal which would appears to be the home of the employee.
That
arrangement was accordingly made.
Mr Higgs further testified that the following day when he enquired
about the whereabouts of the employee, he was told that an
sms was
received indicating that the employee’s fiancée who was
seven months pregnant was to undergo an operation.
He then
approached Douglas and enquired as to whether he was aware as to
what was happening to the employee. Douglas indicated
that he was
not aware of anything except that the employee had sent an sms
indicating that he would not be coming to work.
During cross examination, Mr Higgs testified that the employee knew
about the procedure which was to be followed if he was to
be absent
from work. In response to the question during cross examination Mr
Higgs indicated that the procedure was not in writing.
The second witness of the applicant was Mr Boucher, assistant
manager, who testified that the employee informed him that his
fiancée started bleeding from 19 April 2010. He testified
that he received a telephone call from one of the employee’s
family members who indicated that the fiancée was in hospital
and that the employee was not able to contact him (Mr Boucher).
The employee testified on his own behalf and stated that his fiancé
was admitted for medical treatment at the hospital
on 20 April 2010
and had to go for a further check up on 21 April 2010. He further
testified that he sent an sms to the applicant
indicating his
situation.
The employee denied having pleaded guilty to the charges but did
admit to having been absent on those days in question.
The grounds for review
The applicant contends that the arbitrator committed, a misconduct
in relation to the duties as an arbitrator; gross irregularity;
exceeded his powers alternatively failed to apply his mind to the
relevant issues in the policy and the provisions of the LRA.
The
applicant contended that there was no rational connection between
the evidence before the arbitrator and the conclusion that
he
reached and therefore the decision reached was unreasonable. In what
appears to be the substantiation of the above grounds,
the applicant
states the following:
‘
8.1
The Second Respondent failed to allow the Applicant to be represented
by a legal representative during the arbitration proceedings;
8.2 The Second Respond refused
to grant the Applicant a postponement after the Applicant’s
legal representative was disallowed
to present the Applicant during
the arbitration proceedings;
8.3 The Second Respondent
refused the Applicant’s request to allow the Applicant’s
representative to sit on the proceedings
as an observer;
8.4 The Second Respondent
determined that: ‘The Applicant was absent within the knowledge
of his employer on 20 and 21 April’;
8.5 The Second Respondent ruled
that the chairperson of the disciplinary enquiry was biased and in
doing so confused the test/requirements
of a recusal application with
their of establishing whether or not the chairperson was biased in
favour of the Applicant;
8.6 The Second Respondent, in
finding that the dismissal of the first of was procedurally unfair,
failed to consider the disciplinary
proceedings in its totality when
determining that they Disney's of the First Respondent was
procedurally unfair;
8.7 The Second Respondent awards
the First Respondent compensation equivalent to 9 month’s
salary under circumstances where
the First Respondent had only been
employed with the Respondent for approximately a month.’
The union, on behalf of the employee, has raised a number of
preliminary points against the applicant’s application. Before
dealing with those points, I am of the view that it is apposite to
deal first with the issue of the refusal to allow legal
representation and postponement.
It is common cause that at the beginning of the arbitration hearing
the applicant applied for permission to be legally represented;
and
when it was refused, it applied for the postponement of the matter
in order to afford it the opportunity to prepare.
In applying for the representation during the arbitration hearing,
the applicant’s attorney contended that the applicant
was
entitled to be legally represented because its representative Mr
Higgs would not be in a position to cross examine the employee;
and
also because the employee had added advantage, referring to the fact
that the employee was represented by a union official
who had a
legal background.
The application for the legal representation was made in terms of
Rule 43 of the Rules of the DRC which are similar to Rule 25
of the
CCMA Rules.
1
The arbitrator in refusing to allow legal representation reasoned
that the matter was not complex to warrant legal representation.
The
arbitrator further found that in as far comparable ability between
the applicant’s representative and the employee
was concerned,
the applicant being a member of an employers’ organisation
could have sought assistance from RMI, the employers’
organisation.
After legal representation was refused, the applicant applied for
postponement of the matter on the basis that it needed to prepare
for the case. The employee opposed the application on the basis that
the applicant was aware long before the set down of the
hearing that
application for legal representation would be opposed and should
have come prepared in case its application was
refused.
The arbitrator refused to grant a postponement on the basis that the
applicant ought to have come prepared to the hearing. The
arbitrator
also noted that the previous time the matter was postponed it was
indicated to the parties that a further postponement
would not be
allowed.
In terms of 43 of the Rules of the DRC, the arbitrator has
discretion whether to allow legal representation during the
arbitration
hearing. The factors which the arbitrator takes into
account when considering whether or not to allow legal
representation are
the following:
22.1 the nature of the question of law raised by the dispute;
22.2 the complexity of the dispute;
22.3 The comparative ability of the opposing parties or their
representatives to deal with the dispute.
It would appear that the reason for wanting legal representative by
the applicant was because of the comparative ability between
its
representative and that of the employee. The applicant contended
that its representative did not have the same comparable
ability to
those of the representative of the employee because the
representative of the employee had an advantage because he
is
legally qualified and was assisted by a labour clerk.
In substantiating for legal representation, the attorney who
represented the applicant at the beginning of the arbitration
hearing relied on the following grounds in respect of that
application:
The representative of the applicant would not be in a position to
make opening remarks and closing statements.
The employee’s representative was far more experienced than
the representative of the applicant.
The representative of the applicant was not trained in conducting
arbitration proceedings.
The comparative ability to deal with the dispute favoured the
employee.
The applicant was not a member of the employer’s
organisation.
2
The representative of the applicant would not be able to
cross-examine the employee.
The applicant would suffer prejudice as the employee had a clear
advantage.
The issue of legal representation received attention in
Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau NO and Others
,
3
where the court held that there was no right to legal representation
in the arbitration proceedings involving dismissal for misconduct
or
incapacity. This was confirmed in
Sidumo v Rustenburg the
Platinum Mines and Ltd and Others,
4
where the court held that ‘there is no blanket right to legal
representation.’
In
Afrox v Laka and Others
,
5
a case decided in terms of the then section 140(1) (b) of the LRA
before the 2002 amendments, the court held that:
‘
. . .
A party who applies for legal representation in terms of s 140 (1)
(b) of the Act must seek to persuade the commissioner to
conclude
that it would be unreasonable for the commissioner to expect such a
party to deal with the dispute without legal representation.
Such a
party must seek to do this with reference to matters set out in s 140
(1) (b) (i)-(iv).’
It is trite that the arbitrator in dismissal dispute involving
misconduct or incapacity has discretion whether or not to allow
legal representation. The discretion is exercised properly by having
regard to the factors listed in Rule 43 of the Rules. The
issue of
comparable ability by the parties or their representatives has to be
weighed in the context of the complexity of the
dispute.
The other complaint of the applicant is that the arbitrator refused
the attorney of the applicant to sit in the arbitration as
an
observer. This has not been disputed. The point does not however
take the case of the applicant any further because there
is no
indication if this was to be regarded as irregular to what extend
did it affect the fairness of the proceedings. The applicant
has not
set out what prejudice did it suffer as a result of the approach
adopted by the arbitrator.
6
In my view, the reasoning of the arbitrator in refusing to allow
legal representation cannot be faulted for unreasonableness
or
irregularity. The arbitrator reasoned that the applicant could have
approached the employers’ organisation if it needed
assistance
in the conduct of its case prior to the hearing. In other words,
according to the arbitrator, this is not a case that
required legal
assistance at best the applicant could have, if assistance was
necessary, done with assistance from a representative
from the
employers’ organisation.
The facts which were before the arbitrator were simple and straight
forward. The employee was dismissed for being absent without
authorisation according to the applicant. Those facts could be
presented by any person irrespective of whether that person has
ever
conducted arbitration or not. The background facts are also, in
general, very straight forward and most of it undisputed.
It is
common cause that the employee was absent from work on the days in
question. The only question which was to be determined
was whether
he had authority to do so or not. The other simple issue was whether
the employee informed the applicant of his absence
in accordance
with the rules of the applicant.
Turning to the issue of refusal to grant the postponement to afford
the applicant an opportunity to prepare after legal representation
was refused, the issue is whether the arbitrator acted reasonably in
refusing the postponement.
The reasons for seeking a postponement by the applicant during the
arbitration hearing are the following:
To have an opportunity to prepare for the case.
To have an opportunity to approach the employers’
organisation for assistance with a person to represent the
applicant
during the arbitration proceedings.
That the applicant would be prejudiced if postponement was not
granted.
The applicant had limited experience with arbitration proceedings.
The postponement on the previous occasions was at the instance of
the employee.
The prejudice that the applicant would suffer if postponement was
not granted outweighs that of the employee.
It would be unreasonable to expect the applicant’s
representative to lead in evidence the chairperson of the
disciplinary
hearing who is a qualified attorney.
The discretion to grant or refuse a postponement rest with the
arbitrator. The duty is on the applicant to make out a case and
persuade the arbitrator that there exists a basis upon which a
postponement should be granted. The issue of postponement in the
DRC
is governed by rule 24 which provides for the procedure to follow in
applying for a postponement of a hearing.
7
The basic principle governing postponement in the DRC and the CCMA
is that a party seeking a postponement in arbitration hearing
is
seeking an indulgence from the arbitrator and can only obtain that
by convincing the arbitrator that indeed a postponement
is deserved.
In other words there is no right to a postponement and as has been
stated in a number of authorities, postponement
in arbitration
hearings are not to be readily granted.
8
The approach for dealing with application for postponement in
arbitration hearings is different to those in the court of law.
The
reason why the approach in dealing with postponement in arbitration
hearings are slightly different to those in the courts
was stated in
Carephone (Pty) Ltd v Marcus NO and Others
9
as follows:
‘
There
are at least three reasons why the approach for application for
postponement in arbitration proceedings under the auspices
of the
commission (including the bargaining councils) under the LRA is not
necessarily on a par with that in the courts of law.
The first is
that arbitration proceedings must be structured to deal with dispute
fairly and quickly. Secondly, it must be done
with ‘the minimum
of legal formalities. And thirdly, the possibility of making costs
orders to counter prejudice in good
faith postponement applications
is severely restricted.’
In the courts of law, postponement is generally granted where the
prejudice occasioned by the postponement can be cured by a
costs
order. In arbitration proceedings there is recognition that costs
orders would not necessarily address the prejudice that
may be
occasioned by a postponement. This is largely so because of the
limitation on the compensation that may be awarded in
dismissal
cases by section 194 of the LRA. The problem of addressing the
prejudice that may be occasioned by a postponement through
an order
of costs was identified in
Coin Security Group (Pty) Ltd v
Mshengu and Others
10
as follows:
‘
The
submission that there would be no prejudice to the first respondent
is without merit. The compensation payable in terms of s
194 (2) of
the Act is limited to 12 months’ pay. . . . The first
respondent has a material interest in having the matter
finalised.’
Another important principle governing applications for postponements
is stated in
Coin Security Group,
11
where the court held that a party applying for a postponement should
never assume that a postponement will be granted and therefore
should always prepare for the continuation of the hearing in case
the postponement is refused. An import observation made in
that case
which is apposite the present case is that :
‘
It is
also noteworthy that the applicant had not made any arrangement to
continue with the arbitration in the event that a postponement
was
refused. Implicit in this is the assumption by the applicant that it
has as of right entitled to a postponement and that it
arranged its
affairs on the basis of the correctness of that assumption.’
The important aspect of that observation which needs to be
emphasised which serves as an important principle is the following:
‘
The
applicant was not entitled to assume that a postponement would be
granted and only has itself to blame for its failure to make
appropriate arrangements for the continuation of the arbitration on
the scheduled date.’
In line with the views expressed above, the Labour Court sitting in
review has adopted a stringent and restricted approach to
interfering with the refusal to grant postponements by arbitrators.
It is only when a compelling case has been made for interfering
with
the exercise of the discretion of the arbitrator will the court
interfere with the refusal to grant a postponement. In
Real
Estate Services (Pty) Ltd v Smith,
12
the court held that postponement in arbitrations should be granted
on ‘less generous basis.’ This approach is informed
by
the recognition that the LRA requires that labour disputes need to
be resolved expeditiously and thus arbitrators have a wide
discretion in granting or refusing to grant a postponement.
13
The arbitrator, in the present matter, rejected, correctly so, as
not being good reason for a postponement the fact that the
applicant
needed time to prepare after the application for legal
representation was refused. The applicant ought to have come
prepared to continue with the arbitration in case application for
legal representation was refused. The reason for the need for
the
postponement is made even weaker by the fact that the applicant knew
that the application for legal representation would
be opposed and
was made aware of this fact sometime before the set down of the
arbitration hearing.
I now turn to deal with the preliminary points raised by the
employee.
The review application is defective
It is contended on behalf of the employee that the review
application is defective for want of compliance with the provisions
of rule 7A (2) (c) of the Rules of the Labour Court. In terms of
Rule 7A (2) (c) an applicant is required to state the grounds
of
review in his or her founding affidavit. The founding affidavit has
to set out the factual and the legal grounds upon which
the
applicant relies on to have the arbitration award reviewed and or
set aside. Those facts and the circumstances surrounding
the review
may be further augmented in the supplementary affidavit is filed
once the record of the proceedings which are challenged
have been
filed.
In
Telcordia Technologies Inc v Telkom SA Ltd
,
14
the Court held that:
‘
[32]
The grounds for any review as well as the facts and circumstances
upon which the applicant wishes to rely have to be set out
in the
founding affidavit. These may be amplified in a supplementary
founding affidavit after receipt of the record from the presiding
officer, obviously based on opinion information which has become
available.’
15
In the present instance, except for the application for legal
representation, the postponement and the awarding of compensation,
the applicant has set out very broad and general legal grounds upon
which it relies on for its review application. The legal
grounds are
however not supported by factual grounds or allegations as to why
the arbitration award of the arbitrator is susceptible
to review.
This means that the applicant has failed to place before the court
all the material facts upon which it relies on
to have the
arbitration ward reviewed and set aside. In fact the applicant
states in its founding affidavit that it does not
have to set out
all the material facts concerning its review application. This makes
the applicant’s review application
fatally defective. In
MIT
Tissue v Theron and Others
,
16
the court held:
‘
Rule
7A (2) (c) requires that an application for review should set out
‘the factual and legal grounds upon which the applicant
relies.
. . Such failure would normally be fatal.’
In
Terblanche v Wiese en Andere
,
17
the then Transvaal Provincial Division dismissed the review
application on the ground that applicant’s affidavit did not
contain sufficient grounds, facts or circumstances as required by
Rule 53 (2) of the Rules of the Court. That decision was upheld
on
appeal. The provisions of rule 7A (2) of the Rules of the Labour
Court are similar to those of Rule 53 of the Rules of the
High
Court.
18
In complete records of the arbitration proceedings
It is common cause that the applicant has filed an incomplete record
of the arbitration proceedings in particular in relation
specifically to the testimony of the second witness, Mr Boucher. The
applicant has also according to the employee failed to file
the
bundle of all the documents that were presented at the arbitration
proceedings.
The applicant contends that it was not necessary to file the record
in the present proceedings “as the grounds for review
may be
decided by the . . . the Court without . . . having to have regard
to the record.” The applicant further relies
on the directive
of the Judge President which provides as follows:
‘
7.3
Applications to review and set aside arbitration awards
Parties are reminded that Rule
7A requires an applicant in a review application to copy, serve and
file only those
portions
of a record
that are necessary for the purposes of the review. The filing of
unnecessary portions of a record is a factor that may
be taken into
account for the purposes of any order of costs.’
(my
emphasis).
In
Boale v National Prosecuting and Others,
19
the Labour Court held that where the applicant fails to produce a
full transcript of the record of arbitration proceedings which
he or
she wishes to review the application should be dismissed, unless it
can be shown that the tape cassettes went missing and
that it is
impossible to reconstruct the record.
In
Fidelity Cash Management Services (Pty) Ltd v Muvhango,
20
the court held that:
‘
This
court should be placed in a position to assess the different versions
as they were placed before
before
the first respondent via
a
full transcription of the record or a satisfactory reconstruction
thereof.’
The guidelines to adopt when parties are faced with an incomplete
record was set out in
Life Care Special Health Services (Pty) Ltd
t/a Ekuhlengeni Care Centre v CCMA and Others,
21
where the Labour Appeal Court held:
‘
[14]
This is not to say that much purpose was served by placing the
un-transcribed notes before the Court a quo. It is properly
to be
expected that Court, as in this Court that hand written documents
will be accompanied by typed written transcription or copies.
The
commissioner's hand writing affords ample reason for the settled
practise.’
The court held further that:
‘
[17]
The reconstruction of the record (or part thereof) is usually
undertaken in the following way, the tribunal (in this case the
commissioner) and the representatives in this case is ready for the
employee and Mr Mvelengwa for the employer to come together,
bring in
their extent notes and such other documentation as may be relevant.
He then endeavoured to the best of their ability and
recollection to
reconstruct as full and accurate a record of the proceedings as the
circumstances allow. This is then placed before
the relevant court
with such reservations as the participants may wish to note. Whether
the product of their endeavours is adequate
for the purposes of
appeal or review is for the court hearing same to decide, after
listening to argument in the event of a dispute
as to the accuracy or
completeness.’
22
In
Papane v Van Aarde NO and Others,
the Court held that:
23
‘
In the
ordinary course the appellant should first have endeavoured to
establish, by way of further investigation and affidavits,
whether or
not the missing part was irretrievably lost. If not, then it could
have been transcribed. If irretrievably lost, then
the parties and
the commissioner should have endeavoured to reconstruct the missing
part. The appellant has not initiated any of
these steps. In the
ordinary course, therefore, the Labour Court should have declined to
hear the matter on its merits, and should
either have dismissed the
application or struck it from the roll (with a view to obtaining a
full record).’
There are of course instances where the appropriate and exceptional
circumstances may warrant the court considering a review
application
on the bases of an incomplete record. In that case the review
application may be determined on the basis of the arbitration
award
and any other material that may be before the court. In this respect
the court in
Papane
held that:
‘
I do
not understand the decided cases, cited earlier, to preclude this
Court from determining an appeal on less than a complete
record in an
appropriate and exceptional case, provided the Court feels able to do
so on the material before it. I consider that
this is such a case. In
addition to all the factors that I have mentioned, we have a full and
detailed summary (in the award) of
the evidence of all three
witnesses at the arbitration. While less than ideal, I think that
summary plus the appellant's cross-examination,
which was transcribed
in full, is adequate for our purposes. As will appear, the
appellant's admissions under cross-examination
were not without
material significance. Furthermore, the central issues before us fall
within a relatively narrow compass. Those
issues, together with such
subsidiary issues as arise, can in my view be justly resolved on the
material before us. I am satisfied
that it is the course we should
follow in this matter.’
24
In the present matter, the contention of the applicant is less than
satisfactory as to why the full record was not placed before
the
court. The suggested approach by the applicant that the matter
should be decided on the basis of the arbitration award is
unsatisfactory. It would appear that the approach arose as an
afterthought when the applicant was confronted with the problem
of
the delay in the prosecution of its review. Whilst the arbitrator
has summarised the evidence of the witnesses in his arbitration
award, it is not easy to evaluate the reasonableness of the
arbitration award on the broad and general grounds upon which the
applicant is seeking to have the arbitration award reviewed. This is
so in particular in relation to the contention of the applicant
that
there was no rational connection between the evidence before the
arbitrator and the conclusion he reached. In this regard,
the full
testimony of Mr Boucher which the applicant has failed to place
before the court was necessary and critical. There is
no evidence
that the applicant attempted at reconstructing the record in light
of the missing portions of the record.
It is therefore my view that the applicant’s review stands to
fail on the ground of failure to place before the court a
complete
record of the arbitration proceedings.
The delay in the prosecution of the review
It would seem to me for the above reasons and those that follow
hereafter that it is not necessary to deal with the issue of
the
delay in the prosecution of the review application. I will proceed
to deal with issue of compensation raised by the applicant
and very
briefly with the merits of the review.
The compensation awarded to the employee
The applicant contends that because the employee had been in its
employment for a very short period the arbitrator was not justified
in awarding the employee compensation equivalent to nine moths’
pay. The other reason for the complaint about the compensation
awarded to the employee is that the arbitrator did not take into
account the fact employee another employment soon thereafter.
It is trite that in awarding compensation an arbitrator exercise a
judicial discretion. In terms of section 194 of the LRA,
compensation to be awarded to an employee in a case of unfair
dismissal either because the dismissal is substantively or
procedurally
unfair or both, must be just and equitable in all
circumstances. The test to apply in determining whether compensation
should
be awarded to an unfairly dismissed employee is fairness. The
degree of non-compliance with the principles of fairness would
generally determine the amount of compensation to awarded to an
employee.
25
In the present instance, the arbitrator in awarding the compensation
to the employee reasoned that:
‘
In
determining the appropriate relief I take into consideration all the
evidence before me specifically the conduct of the respondent
and the
prejudice suffered by the applicant.’
The test to apply in considering whether the arbitrator applied his
mind to the appropriateness of the relief he or she made
is not
whether the arbitrator was correct in arriving at the decision as to
what compensation should be made but rather whether
his or her
decision is one which a reasonable decision maker could not have
reached.
The arbitrator in the present instance arrived at the conclusion
that the appropriate compensation for the employee was nine
months
because of the unfairness perpetuated on the employee by the
applicant. In other words the unfairness with which the applicant
treated the employee warranted a compensation equivalent to nine
months’ compensation. In considering the facts and the
circumstances of this case, I am of the view that there is no basis
to criticise the conclusion reached by the arbitrator for
unreasonableness. The applicant was the one who arranged transport
to the employee back home because he had an emergency relating
to
the health of his fiancée. The employee was absent for few
days. The reason for being away was that his fiancée
who was
hospitalised had to undergo an operation. Even if the employee did
not contact the applicant himself, on the version
of the applicant,
the information regarding the reason for not attending work on those
days did in way reach the applicant. The
applicant was aware at
least, that the reason for the applicant not reporting for work was
because of the very reason why it
(the applicant) had arranged for
transport to rush him home. Further, even assuming that no
information reached the applicant
as to the reason for not attending
work, the explanation proffered by the employee was so reasonable
that a dismissal in those
circumstances was so unfair that could
only be addressed by means of a fair compensation that would address
the unfair dismissal.
This is a case where ordinarily reinstatement
could have been ordered but for the employee choosing compensation.
It is important
to note that the arbitrator found the dismissal of
the employee to be both substantively and procedurally unfair.
The fact that the employee found another job also bears very little
relevance to the determination of what compensation should
be made
where the dismissal has been found to be substantively and
procedurally unfair in particular in the light of the decision
in
Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and
Others
,
26
where the Constitutional Court held that there was no obligation on
the employee to mitigate his or her loss after the dismissal.
In my view, for the reasons set out above, there is no basis for
interfering with the compensation award made by the arbitrator.
The
contention of the applicant that the compensation awarded by the
arbitrator to the employee was irregular or unreasonable
stands to
be dismissed.
The merits
It is also my view that the applicant’s application stands to
fail even on the merits of the case. In determining whether
an
arbitrator committed a reviewable irregularity where the challenge
is based on the reasoning of the arbitrator the court has
to
scrutinise the evidence which was presented during the arbitration.
27
The applicant says there is no need for the record of the
arbitration proceedings as the matter can be determined on the basis
of the arbitration award. The arbitration award properly read shows
no defect in the reasoning and the conclusion reached by
the
arbitrator. It is clear from the reading of the arbitration award
why the arbitrator made the findings that the dismissal
was both
substantively and procedurally unfair. The limited record which the
applicant has placed before the court also reveals
very clearly that
the decision of the arbitrator was fair and reasonable in the
circumstances of this case.
The costs
The applicant argued that the review should be dismissed with costs
including costs of reading the heads of applicant and drafting
the
heads of the employee. The applicant on the other hand argued that
the employee should not be entitled to costs if he succeeds
because
the filing of section 158(1) of the LRA was not necessary.
It is trite that in the Labour Court costs are granted on the basis
of the law and fairness.
28
It was argued on behalf of the employee during hearing of this
matter that the costs should follow the results and should include
the preparation of the heads of argument and the perusal of the
applicant’s heads of argument. I am not persuaded that
costs
should apply in as far as heads of arguments are concerned. The same
applies in relation to the application in terms of
section 158 (1)
(c) of the LRA. It would however be unfair not to allow costs to
follow the results in as far the review application
is concerned.
In the premises, the following order is made:
The applicant’s review applicant is dismissed with costs.
The arbitration award of the second respondent is made an order of
the court.
_______________________
Molahlehi J
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: ADV R.B Wade SC Instructed by Wilson McWilliams
Inc.
For the Respondent: Minnaar Niehause instructed by Minnaar Niehaus
1
Rule
25 of the Rules of the CCMA provides:
‘
(1)
(a)
In conciliation
proceedings a party to the dispute may appear in person or be
represented only by-
(1) a
director
or
employee
of that party
and if a close corporation also a member
thereof; or
(2) any
member
,
office bearer
or
official
of that party's registered
trade union
or
registered employer's organisation.
(b)
In any arbitration proceedings, a party to
the
dispute
may appear in person or be
represented only by:
(1) a
legal practitioner
;
(2) a
director
or
employee
of the party
and if a close corporation also a member
thereof; or
(3) any
member
,
office-bearer
or
official
of that party's
registered trade union or
a registered
employers'
organisation.
(c)
If
the
dispute
being
arbitrated is about the fairness of a dismissal and a party has
alleged that the
reason for the
dismissal
relates to the employee's conduct or
capacity, the parties, despite subrule (1)
(b)
, are not
entitled to be represented by a
legal practitioner
in the
proceedings unless-
(1) the
commissioner and all the other parties consent;
(2) the
commissioner concludes that it is unreasonable to expect a party to
deal
with the
dispute
without legal representation, after considering-
(a)
the
nature of the questions of law raised by the
dispute
;
(b)
the
complexity of the
dispute
;
(c)
the
public interest; and
(d)
the
comparative ability of the opposing parties or their representatives
to deal
with the
dispute
.
(2) If the party
to the dispute objects to the representation of another party to the
dispute or
the commissioner
suspects that the representative of a party does not qualify in
terms of this
rule, the
commissioner must determine the issue.
(3) The
commissioner may call upon the representative to establish why the
representative
should be
permitted to appear in terms of this Rule.
(4) A
representative must tender any documents requested by the
commissioner in terms of subrule (2), including constitutions,
payslips, contracts of employment, documents and forms, recognition
agreements and proof of membership of a trade union or employers'
organisation.’
2
However
when applying for the postponement of the proceedings the applicant
stated as of the reasons as needing the opportunity
to consult with
the employers organisation.
3
(2009)
30 ILJ 269 (LAC) at para 10.
4
(2007)
28 ILJ 2405 (CC) at para 85.
5
(1999)
20 ILJ 1732 (LC) at para 20.
6
See
County Fair v CCMA and Others
(1998) 19 ILJ 815 (LC) and
Weltevrede Kwekery (Pty) Ltd v CCMA and Others
(2006) 27 ILJ
182 (LC).
7
Rule
24 of the Rules of the DRC provides as follows:
‘
1) An arbitration may be
postponed-
by agreement the parties in terms of sub-rule (2); or
by application and on notice to the other parties in
terms of sub-rule (3)
The DRC must postpone an arbitration without the
parties appearing if-
all the parties to the dispute agree in writing to
the postponement; and
the written agreement for the postponement is
received by the DRC morethan seven days prior to the scheduled
date of arbitration.
If the condition in sub-rule (2) are not met, any of
the parties may apply in terms of rule 32 (application on
affidavit) to
postpone an arbitration by delivering an application
to the other parties to the dispute and filing a copy with the DRC
before
the scheduled date of the arbitration.’
8
See
Voster v CCMA and Others
(2002) 23 ILJ 1899 (LC) at 1904 A-B.
9
1999
(3) SA 304
(LAC) at para 55.
10
2001
(22) ILJ 910 (LC) at para 18.
11
Id
at para 19
12
(1999)
20 ILJ 196 (LC) at para 12.
13
See
Northern Province Development Corporation v CCMA and Others
(2001) 22 ILJ 2697 (LC) at para 20and
Fraser International
Removals v CCMA and Others
1999 (7) BLLR 689
(LC).
14
[2006] ZASCA 112
;
2007
(3) SA 266
(SCA) at para 32.
15
See
Lefuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another
[2007] ZASCA 143
;
2008
(2) SA 448
at para 15.
16
2000
(8) BLLR 947
(LC) at para 23.
17
1973
(4) SA 497
(A).
18
Rule
53(2) of the Rules of the High Court provides that: ‘The
notice of motion shall set out the decision or proceedings
sought to
be reviewed and shall be supported by affidavit setting out the
grounds and the facts and circumstances upon which
the applicant
relies to have the decision or proceedings set aside or corrected.’
19
[2003]
10 BLLR 988
(LC) para 5.
20
[2005]
8 BLLR 783 (LC)
at 785H-I.
21
[2003]
5 BLLR 416
(LAC) at para14.
22
Id
at para 17.
23
(2007)
28 ILJ 2561 (LAC) at para 27.
24
Id
at para 30.
25
See
FAWU and Others
v SA Breweries
[2004] 11 BLLR 1093
, where the
court in dealing with compensation for procedural unfairness held
that the degree of deviation from a fair procedure
would serve as a
guide as to the compensation. In
Smith v CCMA
[2004] 6 BLLR
585
, the court held that where the dismissal was procedurally unfair
but substantively fair was entitled to nominal compensation.
26
2010
(31) ILJ 273 (CC) at at para 40.
27
See
Fidelity Cash Management Services v CCMA and Others
2008 (29)
ILJ 964 at para 103.
28
See
section 162 of the LRA which reads as follows:
‘
(1) The Labour Court may make
an order for the payment of costs,
according to the requirements of the law and fairness.
(2) When deciding whether or not to order the payment
of costs, the
Labour Court may take into account-
whether the matter referred to the Court ought to have
been
referred to arbitration in terms of this Act and, if
so, the extra
costs incurred in referring the matter to the Court;
and
(b) the conduct of the parties-
(i) in proceeding with or defending the matter before
the
Court; and
(ii) during the proceedings before the Court.
(3) The Labour Court may order costs against a party to
the dispute or
against any person who represented that party in those
proceedings before
the Court.’