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[2013] ZALCPE 15
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Haraeus Refinery (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (P 315/11) [2013] ZALCPE 15 (13 March 2013)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
not reportable
Case No: p 315/11
In the matter between:
HERAEUS
REFINERY (PTY) LTD
............................................................................
Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
...............................................................
First
Respondent
COMMISSIONER
N SESANI
..................................................................
Second
Respondent
LEON POTGIETER
.....................................................................................
Third
Respondent
heard: 23 august 2012
delivered: 13 march 2013
Summary
:
The commissioner’s failure to apply her mind
to the issue of legal representation before consenting thereto
constituted gross
irregularity which rendered her arbitration award
reviewable.
JUDGMENT
LALLIE, J
This is an application for review in which the applicant seeks an
order reviewing and set aside an arbitration award of the second
respondent (the commissioner).
Background Facts
The third respondent was employed by the applicant until his
dismissal for misconduct.
The dismissal was preceeded by two disciplinary enquiries. In the
first he was charge with:
‘
Unauthorised
use and/or abuse of company telephone facilities in that between May
2010 and September 2010 you without authority
and/or permission
used/abused the company telephone for private pu
rpose’
.
No pronouncement was made on the first
disciplinary enquiry as the chairperson abandoned it midstream. The
second disciplinary enquiry
was then held, with a different
chairperson in which the following charges were preferred against the
third respondent:
1. ‘
Gross
dishonesty, in that during period January 2010 until August 2010 you
deliberately, intentionally and fraudulently manipulated
the company
telephone system in a fraudulent/dishonest manner, for personal gain,
2.
Unauthorised use and/or abuse of company telephone facilities in that
between May 2010 and September 2010 you without authority
and/or
permission used and/or abused the company telephone for private
purposes’.
The disciplinary enquiry culminated in the third respondent’s
dismissal, a decision which was partly influence by the fact
that he
was on final written warning for misconduct involving dishonesty.
When the third respondent challenged the fairness of his dismissal
at the CCMA the commissioner found that the applicant had
failed to
show that the third respondent’s dismissal was fair and
reasonable. She further found that the final written
warning issued
against the third respondent for unauthorised use of the applicant’s
telephone system for personal gain
should stand with effect from the
date of the third respondent’ dismissal and ordered his
reinstatement which involved
the payment of R118 300.00, an
equivalent of his seven (7) months’ remuneration.
Grounds for Review
In the founding affidavit the applicant sought to rely on a number
of grounds for review, however, it abandoned some. The remaining
grounds were based on the submission that the commissioner committed
gross irregularity.
The applicant submitted that the commissioner committed a gross
irregularity by not permitting it to call Mr Greef (Greef) to
testify. I agree with the third respondent that this allegation is
not supported by the record which reveals that the applicant’s
representative during the opening statement intimated that Greef
would be called as a witness. However when given an opportunity
to
call his witness he closed the applicant’s case without
calling Greef to testify. It cannot under those circumstances
be
said that the applicant was denied by the commissioner the right to
call a witness. The commissioner did not violate the applicant’s
right to call witness and this ground for review is not valid.
I will now consider the applicant’s submission that the
commissioner failed to apply her mind to the question of legal
representation. It is common cause that at the commencement of the
arbitration Mr Bakker who represented the third respondent
was
identified as an attorney and that the commissioner did not consider
the question of legal representation. Legal representation
in
arbitrations at the CCMA is governed by Rule 25(b) of the Rules for
the conduct of proceedings before the CCMA (the CCMA Rules)
which
provides as follows:
‘
In any
arbitration proceedings, a party to the dispute may appear in person
or be represented only by:
(1) a legal
practitioner
(2) …
(3) …
(C) If the dispute being
arbitrated is about the fairness of a dismissal and a party has
alleged that the reason for dismissal relates
to the employees’
conduct or capacity, the parties, despite sub rule (1) (b), are not
entitled to be represented by a legal
practitioner in the proceedings
unless-
The commissioner and all the
other parties consent;
The commissioner concludes that
it is unreasonable to expect a party to deal with the dispute
without legal representation’
.
The applicant relied on
Ndlovu v CCMA Commissioner Mullins and
Another
1
in
which the decision in
Coyler v Essack
2
was applied. In these matters the court, dealing with the repealed
section 140 of the Labour Relation Act 66 of 1996 (the LRA)
with
provisions identical to Rule 25 held that section 140 (1) (a) of the
Act does not give a commissioner the right to act on
a mere whim
when consenting to legal representation. The court explained that
consent is a discretion to be exercised by the
commissioner who is
duty bound to do so judicially. When the parties want legal
representation the commissioner must nevertheless
not allow legal
representation by withholding his or her consent. The court also
expressed the view that the no different principle
does not rescue
the award from being reviewed and set aside. The applicant, relying
on
CUSA v Tao Ying Metal Industries and Others
3
argued that there was an obligation on the arbitrator, in
determining legal representation to set out at least brief reason
for her decision in the absence of which it cannot be concluded that
she applied her mind to the issue.
The third respondent argued that it was clear to everybody at the
arbitration that the third respondent was legally represented
and
that both parties had mutual consent to such representation. It was
further argued that the applicant was also suitably represented
by a
person with a level of skills substantially equivalent to those of
an attorney. The third respondent concluded by arguing
that it would
have been alarming to find the commissioner allowing the applicant,
a major corporate employer, to be represented
by an employer’s
organisation representative, while, disallowing the third respondent
the benefit of legal representation.
It is common cause that there was a duty on the commissioner to
consent to legal representation. The source of the obligation
is
Rule 25 of the CCMA Rules. The commissioner did not express her
consent, neither did she deal with the question of consent
in her
award. Rule 25 clearly provides that if a party has alleged that the
reason for dismissal relates to the employee’s
conduct,
parties are not entitled to be legally represented. By not giving
her consent before the third respondent was legally
represented, the
commissioner acted in contravention of Rule 25 in that the third
respondent was legally represented as if he
was entitled to such
representation. The commissioner merely stated at the commencement
of the arbitration that the third respondent
was legally represented
by Mr Johnny Bakker of Francois Le Roux Attorneys.
The least that the commissioner was required to do in terms of Rule
25(c) (1) was to consent to legal representation. The third
respondent submitted that everyone at the arbitration was aware that
the third respondent was legally represented as he was introduced
as
an attorney. That argument may be valid to explain that the
applicant tacitly consented to the legal representation. However
the
commissioner was in a different position and different rules applied
to her conduct. As an arbitrator she had a statutory
mandate to
carry out in conducting the arbitration. She had to consent to legal
representation and consent implies that she had
to agree to legal
representation. Without the precursor of considering whether legal
representation should be allowed, consent
to such representation
cannot exist. The commissioner failed to apply her mind to the
question of legal representation before
the third respondent was
represented by a legal practitioner at the arbitration and the
omission constituted a gross irregularity.
The gravity of the commissioner’s conduct is highlighted when
looked through the prisom of the following dictum of
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
4
at
paragraph [105] ‘
Section 145 therefore must be
read to ensure that the administrative action by the CCMA is lawful,
reasonable and procedurally
fair
’. The commissioner’s
failure to consent to legal representation rendered the way she
conducted the arbitration proceedings
unreasonable and procedurally
unfair. This flaw in the arbitration award on its own is material
enough to render it reviewable.
As the third respondent did not act unreasonably by opposing this
application it will not be appropriate to make a costs order.
In the premises the following order is made:
14.1. the arbitration award issued by the second respondent under
Case Number ECPE 5244-10 and dated 10 June 2011 is reviewed and
set
aside;
14.2. the matter is remitted to the first respondent to be arbitrated
de
novo
by a commissioner other than the second
respondent;
14.3. no order is made as to costs.
____________
Lallie J
Judge of the Labour Court of South Africa
APPEARANCES
For the Applicant: Mr Unwin of
Chris Unwin Attorneys
For Respondent: Mr Le Roux
Instructed by: Bakker Attorneys
1
[1993]3
BLLR 231 (LC)
2
[1997]9
BLLR 1173 (LC)
3
[2008] ZACC 15
;
2009
(2) SA 204
(CC).
4
[2007]
28 ILJ 2405 (CC).