About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2012
>>
[2012] ZALCJHB 176
|
|
Nkuna and Others v Commission for Conciliation Mediation and Arbitration and Others (JR435/2011) [2012] ZALCJHB 176 (8 August 2012)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR435/2011
Not Reportable
In the matter between:
NYISO NKUNA & 2 OTHERS
........................................................................
Applicants
and
THE COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION
...........................................................................
First
Respondent
COMMISSIONER NASIMA RAFFEE
............................................
Second
Respondent
SABELO LOSS CONTROL (PTY) LTD
............................................
Third Respondent
Heard: 10 July 2012
Delivered: 8 August 2012
JUDGMENT
Dodson AJ
Introduction
[1] This matter concerns the review of the award of a commissioner of
the Commission for Conciliation, Mediation and Arbitration
(“the
CCMA”) in terms of section 145 of the Labour Relations Act No.
66 of 1995 (“the LRA”) finding that
the dismissal of the
applicants was procedurally and substantively fair.
Factual context
[2] The applicants are Nyiso Nkuna, Jonathan Msonkho and Eric Khoza,
former employees of the third respondent, Sabelo Loss Control
(Pty)
Limited.
[3] The applicants were employed as security guards by the third
respondent, commencing their employment in 2007, 2008 and 2005
respectively.
[4] On 11 November 2010 they were charged with-
4.1. ‘
gross
misconduct in that on 19 September 2010 you allowed a vehicle to
enter your site after hours to remove certain items from
the site for
your own personal gain’; and
4.2. ‘
dereliction
of duties in that on 19 September 2010 you allowed a vehicle to enter
and exit your site without paperwork.’
[5] A disciplinary enquiry was held on 16 November 2010 and all three
applicants were summarily dismissed.
[6] An unfair dismissal dispute was referred to the CCMA. After
conciliation was unsuccessful, an arbitration was scheduled for
22
December 2010. At the arbitration, the human resources manager was
the only witness for the respondent. She testified that one
of the
third respondent’s clients at which the applicants were
providing guarding services - had suffered serious losses
and had
conducted its own investigation by placing undercover guards at the
premises. She testified that the guards could not be
called to give
direct evidence because this would expose their identity and upset
the on-going undercover investigation they were
involved in.
[7] The applicants were unrepresented in the arbitration. All three
gave evidence. They denied that they were guilty of the misconduct
alleged against them. Significantly in their attempts at
cross-examining the third respondent’s witness, they queried
the
absence of any substantial information in relation to the
complaints against them. For example, in attempting to cross-examine
the third respondent’s witness, the first applicant asked-
‘
Can
you bring the person who said that we take the bribe, we take the
bribe for who? With the car, the registration number of that
vehicle?
… You must also have your investigation, you have some goods,
things that you can say, this is the proof, the registration
number,
the person who give you money is this one.’
[8] The applicants also pointed out that when the first applicant
arrived for work on the day in question, he found that there
were no
guards working the prior shift. According to him he reported this in
the occurrence book and telephoned the control room
in this regard.
[9] It was also pointed out by Mr Msonkho that there were other
employees of the client company who were also on the premises during
the same shift and who also slept there, suggesting that they might
have been responsible for the alleged theft of scaffolding.
Given the
absence of any witness from the client company, this could not be
taken further.
[10] The second respondent commissioner handed down her award on 22
December 2010. She found the dismissal of the applicants to
have been
both procedurally and substantively fair.
Legal Context
Test on Review
[11] Having regard to the decision of the Constitutional Court in
Sidumo & Another v Rustenburg Platinum Mines Ltd and Others
,
1
the Labour Appeal Court in
Andre Herholdt v Nedbank Ltd
2
and of this Court in
Southern Sun Hotel Interests (Pty) Ltd v CCMA
and Others
,
3
amongst others, the decision of a Commissioner of the CCMA is
reviewable with reference to-
the substantive reasonableness of the decision, with the focus
being on whether the result or outcome of the decision-making
process was that which a reasonable decision-maker might reach; and
the dialectical or “process-related” reasonableness of
the decision, with the focus being on the logical path by
which the
decision-maker arrived at his or her decision.
Duties of a commissioner where parties are unrepresented
[12] In
Klaassen v Commission for Conciliation, Mediation and
Arbitration & Others,
4
Murphy AJ (as he then was) held as follows:
‘
[27]
Commissioners acting under the auspices of the CCMA in terms of the
LRA are expected to act inquisitorially or investigatively.
Section
138(1) of the LRA provides that a commissioner may conduct the
arbitration in a manner that he or she considers appropriate
in order
to determine the dispute fairly and quickly, but must deal with the
substantial merits of the dispute with a minimum of
legal
formalities. This includes stepping momentarily and cautiously into
the arena to direct the proceedings in the interests
of justice.’
[13] The point is well-established and other judgments have been to
similar effect.
5
[14] The interventions on the part of the commissioner must however
be carried out in an even-handed and procedurally fair manner
which
does not give rise to any apprehension of bias.
6
Analysis
The conduct of the proceedings
[15] In this matter, both the applicants and the respondent were not
legally represented. The third respondent in this matter presented
the flimsiest of cases. If regard is had to the notes from the prior
disciplinary hearing, which formed part of the bundle of documents
before the commissioner, it is apparent that the information about
the undercover investigation is third-hand hearsay. Undercover
guards
reported to a Mr John Bruwer who was conducting the investigation. Mr
Bruwer informed a person by the name of Darryl of
what he had been
told by the security guards and Darryl, it would seem, conveyed his
understanding of the information to the third
respondent’s
witness and human resources manager, Ms Rabie. No detail of the
alleged theft was presented in terms of precise
time, registration
number of the vehicle and the like.
[16] In these circumstances it was incumbent upon the commissioner to
assist both the third respondent and the applicants. It ought
to have
been pointed out to the third respondent that reliance could not be
placed on vague and third-hand evidence, and an opportunity
given to
correct the situation.
[17] The second respondent ought also to have been more probing about
the complete absence of any detail regarding the complaints
against
the applicants, even if she were ultimately to have found that there
was a plausible reason for not leading the evidence
of the undercover
guards themselves. She ought also to have explored whether there were
any avenues open to allowing direct evidence
to be given by the
undercover guards without revealing their identities.
[18] She ought also to have scrutinised the assertion of the third
respondent that the investigation was still an on-going one.
This was
important because a document in the bundle of documents suggested
that “
under covers will lay statements in criminal case”
.
If they were willing to “
blow their cover”
in
those proceedings, why were they not willing to do so in the
arbitration proceedings?
[19] The second respondent ought also to have assisted the applicants
in probing the third respondent’s case when they were
called
upon to cross-examine.
[20] None of these required interventions are apparent from the
record.
[21] The consequence was that the proceedings were unfair against the
applicants from the perspective of the manner in which they
were
conducted. In my view, this was a material irregularity.
The second respondent’s reasoning
[22] The second respondent’s reasons for her decision are
encapsulated in the following two paragraphs:
‘
It
is common cause that the first, second and third applicants were
dismissed after an undercover investigation pointed in the
applicants’ involvement to theft of the scaffolding from the
premises on their shift (sic). The respondent alleged that they
did
this in exchange for food and money. The applicants denied any
knowledge of this incident and denied that they allowed any
unauthorised vehicle into the premises.
4.2
Although the respondent did not present direct evidence, the evidence
presented by Ms Rabie is relevant and provided a good
explanation for
not calling her investigators to testify. It is improbable that this
respondent would charge the applicants for
no reason at all and
implicate them in a matter so serious. The applicants on the other
hand could offer no explanation as to how
the goods were taken off
the property during their shift and simply offered a bare denial in
their defence. The applicants’
version is not probable in the
face of the respondent’s version. I therefore find the
applicants guilty of the charges and
find the dismissal to be fair
.’
[23] In my view, and for reasons already apparent, a reasonable
decision-maker would have subjected the third respondent’s
explanation for failing to call the investigators to testify to far
greater scrutiny. The third-hand evidence, presented in the
vaguest
and briefest terms by the third respondent’s HR manager, was
highly prejudicial to the applicants’ ability
to defend
themselves.
[24] Fair and reasonable decision-making required-
[24.1] a thorough justification for this approach; and
[24.2] an exploration of possible alternative approaches aimed at
reducing the prejudice to the applicants, such as exploring the
possibility of allowing the undercover guards to give their testimony
without their identity being revealed or at the very least
requiring
the third respondent to provide very precise details and statements
from the undercover guards without necessarily revealing
their
identities;
[24.3] an explanation as to why other surveillance methods such as
hidden cameras and the like were not used.
[25] Further, the second respondent failed properly to take into
account the cross-examination and evidence that was proffered
by the
applicants in the difficult circumstances which they faced. She ought
to have explored their averments pertaining to the
absence of guards
from the earlier shift and its implications and the presence on the
premises of employees of the client of the
third respondent during
the period of the applicants’ shift who might have been
responsible for or for facilitating any theft
that took place.
[26] Generally, the award is sorely lacking in providing any logical
path to the conclusion that was arrived at.
[27] The award thus stands to be reviewed and set aside primarily on
the ground of dialectical or process-related unreasonableness.
Appropriate relief
[28] The applicants ask that this court substitute its decision for
that of the second respondent. In the alternative they ask
that the
matter be remitted for a fresh determination before a different
commissioner.
[29] In the proceedings before the second respondent, the applicants
all indicated that they sought relief in the form of compensation
in
the event that the dismissal was found to be unfair.
[30] There is a need for finality to be brought to this matter. In my
view, this court has a duty to ensure that labour disputes
are, as
far as possible, brought to a close with the minimum of delay. I am
accordingly satisfied that this court should substitute
an award for
that of the second respondent.
[31] Grogan in his work
Dismissal
says the following in regard
to the determination of appropriate compensation:
‘
Judges
and arbitrators must take into account all relevant factors when
determining compensation, including such considerations
as the loss
suffered by the employee, whether dismissed employees have mitigated
their loss, the flagrancy of the employer’s
non-compliance with
the Act, employer’s attempts to make good the wrong, and
general considerations of fairness to the employer
and the employee.’
[32] There was no evidence from the applicants as to precisely what
steps they had taken to mitigate their losses. Nor was any
particular
case made out in relation to procedural unfairness. In arriving at an
amount of compensation, taking into account all
the considerations
enumerated by Grogan in his work, as well as the periods of service
of the applicants.
[33] There is no reason why costs should not follow the result.
[34] I accordingly make the following order:
[34.1] the arbitration award issued by the second respondent under
CCMA Case No. GAJB 32358-10 dated 22 December 2010 is reviewed
and
set aside;
[34.2] the award is replaced with the following award:
1. The dismissal of the first, second and third applicants was
substantively unfair.
2. The third respondent is ordered to pay to the first and second
applicants an amount equivalent to six months’ compensation,
and to the third applicant an amount equivalent to seven months’
compensation.
[34.3] The third respondent is ordered to pay the applicants’
costs.
________________
Dodson AJ
APPEARANCES:
On behalf of the applicants: Ms H Schensema of Eversheds Attorneys
On behalf of the third respondent: Mr AJ Posthuma of Snyman Attorneys
1
(2007)
28 ILJ 2405 (CC) at paras 109 – 110.
2
Unreported
judgment of the Labour Appeal Court under Case No. DA20/2010 dated 4
May 2012 at paras 33 – 41.
3
[2009]
11 BLLR 1128
(LC).
4
(2005)
26 ILJ 1447 (LC).
5
See,
for example,
Western Cape Southern Suburbs Real Estate (Pty) Ltd
t/a Seeff Properties v Commission for Conciliation, Mediation and
Arbitration
& Others
(2009) 30 ILJ 2158 (LC) at para 25.
6
Raswiswi
v Commission for Conciliation, Mediation and Arbitration &
Others
(2011) 32 ILJ 2186 (LC) at paras 21 – 23.