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[2013] ZALCJHB 39
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Land Bank v Nowosenetz NO and Others (JR3392/10) [2013] ZALCJHB 39; (2013) 34 ILJ 2608 (LC) (27 February 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Of interest to other judges
case
no: JR3392/10
In the matter between:
LAND
BANK
.....................................................................................
Applicant
And
L. NOWOSENETZ N.O.
.....................................................................
1
st
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
..........................................
2nd
Respondent
MZ MULANGAPHUMA
.....................................................................
3
rd
Respondent
Heard
:
9January 2013
Delivered
:
27 February 2013
judgment
HARDIE AJ
This is an application for review brought in terms of section 145 of
the Labour Relations Act 66 of 1995 (“the Act”)
on 30
November 2010, in which the Applicant seeks to review and set aside
an arbitration award made by the 1
st
Respondent (“the
Commissioner”) under the auspices of the 2
nd
Respondent on 2 November 2010 under CCMA case number GATW 6657- 10
in which the Commissionerfound that the 3
rd
Respondent
was dismissed by the Applicant as contemplated by section 186 (1)
(e) of the Act and that such dismissal was unfair,
and ordered the
Applicant to pay the 3
rd
Respondent six months
compensation in the sum of R325 000, 00 within 14 days of
receipt of the award. This award which is
annexed as “A”
of the Applicant’s review application, I shall refer to as
“the award”.
The Applicant’s grounds of review are essentially that the
Commissionerso misconstrued the evidence before him that he
committed a gross irregularity and came to a decision that no
reasonable decision maker could have reached.
Briefly, the essential facts are that the 3
rd
Respondent
commenced employment with the Applicant on 1 May 2009 in the
position of Trading Risk Manager, earning R650 000,
00 per
annum. Arising from her resignation on 12 April 2010, which she
thereafter attempted to retract, the 3
rd
Respondent
referred an alleged constructive dismissal case to the 1
st
Respondent on 10 June 2010. At the arbitration before the 1
st
Respondent on 20 October 2010, neither the Applicant nor the 3
rd
Respondent was legally represented. The 3
rd
Respondent,
who bore the onus of proving a dismissal, presented her evidence
first. She was then cross- examined by the Applicant’s
representative, Mr S Macgregor (“Macgregor”) after which
she closed her case. After an adjournment of 15- 20 minutes,
Macgregor commenced Applicant’s closing argument after which
the 3
rd
Respondent was given an opportunity to present
hers. At paragraph [8] of the award, the Commissioner states under
the heading
“The Respondent’s (the Applicant in these
proceedings) case” that “No witnesses were called by the
Respondent.
It closed its case”. At paragraph [10], the
Commissioner states “In assessing the evidence only the
version of the
Applicant (3
rd
Respondent in these
proceedings) is before me. The Respondent (Applicant in these
proceedings) did not call any witnesses.
Prior to legal argument being advanced before me, and because the
review record contained irrelevant as well as duplicated documents,
the matter stood down for the parties’ legal representatives
to reach agreement onthe relevant parts of the review record
that
the Court should have regard to in considering the review
application. Thus, in referring to the transcript of the arbitration
(“transcript”), I will use the typed and not the
handwritten numbering in the top right hand corner in this judgment.
Ex
meromotu
, I asked the parties’ legal representatives
to address me on the fact that it appeared from the transcript that
the Commissioner
had adjourned the arbitration at the conclusion of
the 3
rd
Respondent’s case for 15- 20 minutes for
the Applicant to present its evidence, but that after the
adjournment, this had
not occurred. Instead, Macgregor launched
straight into his closing argument on behalf of the Applicant
without any intervention
or clarification on the part of the
Commissioner. This appears from pages 53 and 54 of the transcript.
Mr Moshoana on behalf of the 3
rd
Respondent submitted
that it is clear from the transcript that the Commissioner indicated
on two occasions to Macgregor what
the process was. The first
appears at pages 43 and 44 of the transcript at lines 11- 21 and 1-
25 respectively and then again
at page 53 at lines 1- 15 which is a
synopsis of what was said at pages 43 and 44 and reads as follows:-
“
Commissioner:
Very well. I just want to make it clear again that you have to deal
with the entire case, the entire dispute that is before me
at this
stage and not just rebutting whether there was dismissal or not. I
hope you are very clear about it. I do not want any
misunderstandings
later on in the day that you did not understand. There will not be
another process to investigate whether if
there was a dismissal it
was fair or not a fair dismissal. You will not get another
opportunity as far as the Applicant (3
rd
Respondent in these proceedings) is concerned. You will get an
opportunity as far as the Company is concerned to place any facts
you
with (
sic)
to
place but you will not get a further opportunity with the Applicant
(3
rd
Respondent in these proceedings). She closes her case now.
Mr Macgregor:
I understand.
Commissioner:
And now the Company presents its case in its
entirety, just as her case in its entirety is now closed.
Mr Macgregor:
I understand. Thank you.”
The arbitration was then adjourned for tea and upon resumption, the
Commissioner says “Alright, the Applicant (3
rd
Respondent in these proceedings) is finished with her case and you
can now proceed.” Macgregor then proceeded to make his
closing
statement based upon the documentary evidence and the 3
rd
Respondent’s evidence without any intervention on the part of
the Commissioner.
Mr Mer on behalf of the Applicant submitted that it was not
necessary for the Applicant to lead evidence at the arbitration as
the 3
rd
Respondent on her own version, had not proved a
dismissal.
In raising this issue
meromotu
with the parties, I was guided
by what has now been articulated in paragraph 21 of the Guidelines
on Misconduct Arbitrations published
by the 1
st
Respondent in terms of section 115(2)(g) of the Act and which became
effective on 1 January 2011 (“the Guidelines”),
namely
that where it is evident that during the arbitration either
representative does not understand the nature of proceedings
and
that this is prejudicing the presentation of either of their cases,
the Commissioner is to alert the party to this. Whilst
the
Guidelines were not in effect when the Commissioner made his award,
it is clear from them that they were developed by the
1
st
Respondent in accordance with judgments that are binding on it such
as the Klaasen judgement referred to below. Paragraph 21.1.
makes it
clear that one such instance where the Commissioner should draw this
to the attention of a party, is where that party
fails to lead
evidence of its version under oath or affirmation.
Paragraph 21 mirrors paragraph 12.1. of the Guidelines in that a
Commissioner must conduct an arbitration in a manner that the
Commissioner considers appropriate to deal with the substantial
merits of the dispute with the minimum of legal formalities and
in
doing so should not allow technicalities to prevent the full picture
of relevant events being placed before the Commissioner.
Paragraph
33 indicates that where one or both parties are unrepresented or
where a representative is not experienced, an inquisitorial
approach
will often be appropriate. Paragraph 40 states that the Commissioner
may suggest that the parties lead evidence on a
particular issue
relevant to the dismissal in order to gain a full understanding of
the issues in dispute or call a witness for
that purpose.
It is clear the purpose of the interventions of the Commissioner
referred to in paragraph 6 above was to explainto Macgregor
that
constructive dismissal arbitrations were not conducted in two
stages, but in one sitting. Pursuant thereto and prior to
the
adjournment, the Commissioner indicated that upon resumption the
Applicant would present its case in its entirety. When Macgregor
then launched straight into his closing argument after the
resumption of the arbitration, there is nothing on record which
indicates that the Commissioner sought to warn Macgregor of the
consequences of not leading evidence to rebut what the Commissioner
must have considered tobe a
prima facie
case of constructive
dismissal that had been established by the 3
rd
Respondent.
In Klaasen v CCMA & others
(2005) 14 LC 1.25.9
at paragraphs
[26]- [28]
, Murphy AJ, in the context of an employee not
testifying in a misconduct case, held as follows:-
“
[26] In the employment law context,
where there is evidence directly implicating an employee in
misconduct, or which is adverse
to his or her version, such employee
cannot afford to leave that evidence unanswered. Although the
commissioner would not be obliged
to accept that evidence solely on
the grounds that it was uncontradicted, provided it is credible, it
is unlikely to be rejected
if the employee has chosen not to deny or
contradict it. An employee’s failure to testify will always
strengthen the case
of the employer (see Hoffmann &ZefferttThe
South African Law of Evidence at 598- 599. Nevertheless, it is
clearly not an invariable
rule that an adverse inference be drawn or
that the uncontradicted version should stand. In the final analysis
the decision must
depend upon the circumstances of the litigation.
And, accordingly, in instances such as the present, a commissioner
would be justified
in drawing an adverse inference or accepting an
uncontradicted version
only if he
has cautioned the unrepresented litigant that his failure to testify
might lead to that result.
(this
portion is highlighted for the purposes of this judgement).
[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 into the arena to
direct the proceedings in the interests of justice.
(this
portion is highlighted for the purposes of this judgement).
In
Consolidated Wire Industries (Pty) Ltd v CCMA
[1999] 10 BLLR
1025
(LC)
the Labour Court stated:
“
The parties were laymen unrepresented by
legal practitioners and
without the benefit of pleadings to tie the parties to a version.
When a version is charged [sic:changed] or a new version is
suddenly presented the arbitrator must take charge of proceedings. He
cannot rely on the parties to realise what it expected of them
unaided.”
[28] By the same token, and perhaps even more so, one might expect
the commissioner to take charge by instructing a party to put
a
version(of which he is aware) under oath or risk the consequence of
an adverse inference or his acceptance of the uncontradicted
testimony.
The failure to give that warning, in the light
of a commissioner’s inquisitorial function and duties, in my
assessment, constitutes
a reviewable irregularity.
(this
portion is highlighted for the purposes of this judgement).”
I find no reason why this dictum should also not apply to employers
in constructive dismissal cases. The Commissioner should
have warned
Macgregor that his failure to lead evidence under oath meant that
the Applicant risked the consequence of an adverse
inference being
drawn or the Commissioner accepting the uncontradicted testimony of
the 3
rd
Respondent.
Indeed, the Commissioner should have gone one step further. Given
that the parties were unrepresented, he should have insisted
on
hearing evidence from the Applicant relating for instance, to the
steps taken to address the grievances that had been lodged
by the
3
rd
Respondent. The Commissioner made a finding that
there was a history of unresolved grievances and a paper trail to
support the
3
rd
Respondent, without having all the
substantial merits of the dispute before him. It was incumbent upon
him, in the interests
of justice, to require the Applicant to lead
evidence on what it had done to address the grievances, if anything,
before making
a finding that there was a history of them being
unresolved.
I am persuaded therefore that the Commissioner committed a
reviewable irregularity on the grounds articulated in paragraphs
[12] and [13] above and that his award stands to be set aside.
That brings me to what relief is appropriate in these circumstances.
Whilst I am mindful that substantial time has elapsed since
the 3
rd
Respondent resigned and claimed constructive dismissal, given that
all the substantial merits of the dispute were not canvassed
at the
arbitration, I am in no position to substitute my decision for that
of the Commissioner.
The Applicant has asked for an order of costs. I am not inclined to
grant it as the Applicant never raised the review grounds
upon which
the arbitration award is being set aside, in its review application.
Besides, the award is reviewable because the
Commissioner erred in
the conduct of the arbitration in not adopting a fair process.
I therefore make the following order:
The 1
st
Respondent’s arbitration awardmade under the
auspices of the 2
nd
Respondent on 2 November 2010 under
CCMA case number GATW 6657- 10 in which he found that the 3
rd
Respondent was dismissed by the Applicant as contemplated by section
186 (1) (e) of the Act and that such dismissal was unfair,
and
ordered the Applicant to pay the 3
rd
Respondent six
months compensation in the sum of R325 000, 00 within 14 days
of receipt of the award, is hereby reviewed
and set aside.
The dispute between the parties is remitted to the 2
nd
Respondent to be arbitrated
de novo
by a commissioner other
than the 1
st
Respondent within four weeks of this order
or such other time period as the parties may agree.
There is no order as to costs.
_______________________
S B Hardie
Acting Judge
APPEARANCES
APPLICANT: Mr D Mer of Fluxmans Incorporated, Rosebank
THIRD
RESPONDENT: Mr G Moshoana of Mohlabaand Moshoana Inc, Johannesburg