About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2012
>>
[2012] ZALCCT 9
|
|
Edcon Ltd v Wilson and Others (C495/09) [2012] ZALCCT 9 (1 January 2012)
REPUBLIC OF SOUTH AFRICA
The Labour court of South
Africa, CAPE TOWN
judgment
Not Reportable
Case no: C495/09
In
the matter between:
EDCON
LIMITED
…....................................................................................................
Applicant
and
COMMISSIONER
DIK WILSON
…................................................................
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
…............................................................................
Second
Respondent
CHERAY
JANARI
…....................................................................................
Third
Respondent
Heard:
25 May 2011
Delivered:
January 2012
Summary:
Review, admissibility hearsay evidence, record of disciplinary
hearing, assessment of material properly before arbitrator
JUDGMENT
VAN VOORE AJ
[1]
This is an application to,
inter alia
, review and set aside an
arbitration award (the award) of the First Respondent (the
commissioner) in determining an alleged unfair
dismissal dispute
referred to the Commission for Conciliation, Mediation and
Arbitration (the CCMA) by the Third Respondent, Ms
Cheray Janari
(Janari).
[2]
The commissioner found that Janari had been unfairly dismissed and
awarded compensation in the amount equivalent to 12 months’
remuneration.
[3]
Janari was dismissed for misconduct. The alleged misconduct consisted
of directing employees of Edcon Limited (the applicant)
to record
payment arrangements with customers contrary to the applicant’s
ordinary processes and procedures. At the disciplinary
hearing,
Janari was found guilty of directing employees of the applicant to
record that payment arrangements had been confirmed
by a more senior
employee in circumstances where such payment arrangements had not in
fact been confirmed. The applicant had previously
successfully
reviewed an earlier arbitration award in relation to Janari’s
claim of unfair dismissal. The outcome of that
application was that
the matter was remitted back to the CCMA for hearing
de novo.
It
is the second arbitration proceedings which form the subject matter
of this review application. The commissioner in his award
made a
number of findings including the following.
3.1 Ms Flatwell, an
employee of the applicant, who was adamant that the instruction to
record that payment arrangements had been
confirmed by Mr Alroy Roodt
(Roodt) did not emanate from Roodt but rather came from Janari.
3.2 Ms Nadia Smith,
another employee of the applicant, testified that the instruction
came from Janari. Smith however conceded that
in a prior statement,
she stated that Roodt had given the instruction. Smith had also and
in the disciplinary hearing which led
to Janari’s dismissal
said that the instruction had come from Roodt
and
that Janari
had instructed them to write ‘confirm’. (emphasis added)
3.3 There were ‘some
marked contradictions between statements of agents who were not
called as witnesses, and their evidence
in the disciplinary hearing’.
3.4 Roodt stated that the
instruction was given to him by Janari and he repeated the
instruction to staff.
3.5 In light of the many
contradictory statements it is difficult to see how the chairperson
of the disciplinary hearing came to
the conclusion that Janari gave
the instruction to write ‘confirm Alroy’ irrespective of
whether the arrangement had
been confirmed.
3.6 Janari’s
version had been that she instructed staff to record ‘confirm
Alroy’ rather than ‘confirm line’
or ‘confirm
supervisor’ so that she knew who had confirmed the arrangement
and not in order for them to make ‘false
notes’ on the
system that Roodt had in fact confirmed a payment arrangements when
he had not actually done so.
Janari
felt that, perhaps, her instruction was misunderstood.
[4]
The commissioner found that three scenarios were equally reasonably
possible i.e., that Janari gave the instruction, that the
supervisor
and agents had implicated Janari in an attempt to avoid disciplinary
action against themselves and that Janari gave
the instruction as she
had understood it and that the supervisor and agents had
misunderstood it and applied it differently. In
those circumstances,
the commissioner found that the applicant in the arbitration
proceedings did not discharge the
onus
of proving that Janari
was guilty of the misconduct alleged against her and accordingly
found that Janari’s dismissal was
substantively unfair.
However, the commissioner did find that Janari’s dismissal was
procedurally fair.
[5]
The commissioner had also determined that witness statements that
were prepared in anticipation of the disciplinary hearing
and which
were used at that hearing, together with the transcript of the prior
arbitration proceedings, constituted hearsay evidence
for the
purposes of the arbitration proceedings before him and that he was
not at liberty to have regard to those statements or
transcript
without first establishing a basis for its admission on application
by either party. However, it appears that no such
determination was
made. In order for the commissioner to have regard to those witness
statements and to properly determine the
weight to be accorded to
them, it would have to be determined that the statements were
admissible. The commissioner did however
find that the statements
constituted hearsay and that he could not accept the truth of the
contents of the statements but that
he could have regard to the
statements as evidence of ‘what those witnesses said’ at
the internal disciplinary hearing.
[6]
The applicant contends that this approach constitutes irrational and
unreasonable conduct on the part of the commissioner. In
particular,
the applicant contends that this is a reviewable gross irregularity
as parties in arbitration proceedings are entitled
to know what is
properly served before the arbitrators as evidence and how to deal
with it. The applicant further contends that
in the face of the
commissioner’s ruling as to a basis for subsequent admission of
the statements, he was precluded from
accepting the contents of the
statements as a basis for rejecting admissible evidence before him.
The applicant contends that there
was no basis on which the
commissioner could compare prior statements, written or oral, with
evidence properly before him during
the arbitration proceedings for
the purposes of adjudicating the dispute.
[7]
In my view, the commissioner’s approach does constitute a gross
irregularity as contended for by the applicant and the
arbitration
award falls to be set aside on that basis alone.
[8]
The applicant further contends that the Commissioner should have had
regard only to the admissible evidence before him including
the oral
evidence of those who testified namely Cinthia Adams (Adams), Natalie
Flatwell (Flatwell), Nadia Smith (Smith), Julian
Mathews (Mathews)
and Janari.
[9]
In this respect, the applicant contends that there were no
contradictions as between the evidence of Smith and Flatwell as to
who issued the instruction. Both Smith and Flatwell testified that
the instruction had been issued by Janari, that the instruction
was
issued at a team meeting rather than a group meeting and that the
instruction was issued for the purposes of addressing unacceptably
high levels of ‘escalation’ in the team of Roodt.
[9]
The largely undisputed evidence before the commissioner included the
following:
9.1 It was in fact
Janri’s view that the number of escalations emanating from
Roodt’s team was too high.
9.2 The evidence of
Flatwell, that the instruction came from Janari and had been given at
a morning meeting.
9.3 Flatwell’s
evidence as to the instruction ‘confirm Alroy’ was not
challenged or that Flatwell had understood
the instruction;
9.4 In the arbitration
proceeding, neither Flatwell nor Smith’s evidence was
challenged on the basis that they were in fact
responsible for
recording ‘false notes’ and were protecting themselves
and Roodt from disciplinary action.
[10]
The commissioner had before him largely two versions. On the one hand
there was the version of Janari who denied giving the
instruction at
all and who testified that Roodt had given the instruction. On the
other hand there was the version of the applicant
that Janari had
given the instruction (and/or confirmed it). In my view, the proper
determination of the dispute required an assessment
of these two
versions and a decision to prefer one or the other.
[11]
The record of arbitration proceedings and in respect of Janari’s
evidence records the following (page 243):
‘
Mr
Mashego Mam let’s in distinct the last question you were asked.
The – when you started off with your opening statement,
indication was made to the effect that you guys (in distinct) to say
an instruction to say confirm Alroy. I want us to move on
that
premises.
Ms
Janari Sir
, I would just like to, with all do respect, continue
with your question continue with the sentence. I said confirm Alroy
to put
a process in place and not to do it fraudulently. Don’t
use half of the question, or half of the sentence.
MR
ALLOM:
(indistinct) He’s trying to – I must object to
that suggestion.
COMMISSIONER
:
Ja, that’s a fair comment. It’s a fair comment and I
think – I don’t think it’s fair to try and
get the
witness to say something that she hasn’t said.
MR
ALLOM:
She trying to qualify basically what she, you know,
(indistinct).
MR
MASHEGO
: Mr Commissioner, all that I am saying is I want us to
move from the premise to say she did do this instruction. That’s,
all I’m saying .
COMMISSIONER
:
Ja, you must understand what she’s saying. She’s saying
that she instructed the team members to write confirm Elroy
when they
had in fact confirmed with Elroy.
MS
JANARI
: Exactly, and every time (indistinct) thank you Mr
Commissioner, my thing is that people choose only to look at the
front, they
don’t read the full sentence, because in our
previous – when we spoke in May or so, you did exactly what you
did now,
read the complete sentence. I didn’t say do it
fraudulently.’
[13]
What is clear is that Janari conceded that she did issue an
instruction to employees of the applicant in the terms ‘confirm
Alroy’. However, Janari contends that she did not do so
fraudulently and that the instruction was to do so in circumstances
where Roodt had in fact confirmed. However, the unchallenged evidence
of Flatwell and Smith points to the contrary. The effect
and import
of that evidence, supported by the evidence of Janari herself, is
that it was Janari’s view that the level of
escalations from
Roodt and his team was too high, that she instructed employees to
right ‘confirm Alroy’ even in circumstances
were Roodt
had not in fact confirmed payment arrangements. This was clearly a
serious breach of the applicant’s ordinary
policies and
procedures.
[14]
The alleged unfair dismissal dispute and the review application have
a long history. The record is voluminous. In my view no
proper
purpose will be served in remitting the matter back to the CCMA. The
assessment of the evidence as to Janari’s conduct
arises from
the record that was filed in the review application. This Court has
been placed in a position to determine the dispute
and it is
appropriate in this matter that it does so. This Court has also had
the benefit of extensive arguments written and oral,
by the legal
representatives of the parties before it.
[15]
In the circumstances, I make the following order.
The
arbitration award of the First Respondent is reviewed and set aside.
The
arbitration award is substituted with an award that the dismissal of
Janari was substantively fair.
There
is no order as to costs.
_________________
VAN VOORE AJ
APPERANCES:
FOR THE APPLICANT: Adv C.A. Nel
FOR THE THIRD RESPONDENT: Mr R Allom