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[2013] ZALCD 36
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Derby Supermarket v CCMA and Others (D778/12) [2013] ZALCD 36 (10 December 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
...........................................................................................
Of
interest to other judges
Case
no: D778/12
In
the matter between:
DERBY
SUPERMARKET
First
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION (CCMA)
First
Respondent
COMMISSIONER
E DU PREEZ (N.O.)
Second
Respondent
VINESHREE
RUBICHAND
Third
Respondent
Delivered:
10 December 2013
Summary:
Review
– gross procedural irregularity – legal representation
permitted despite reason falling away – employer
compelled to
commence leading evidence when dismissal disputed – employee’s
opening statement treated as evidence despite
not being corroborated
JUDGMENT
R LAGRANGE J
Introduction
[1]
The employer in this matter seeks to
set aside and review an award by the second respondent, a CCMA
Commissioner, in favour of the
third respondent Ms V Rubichand
(‘Rubichand’), an employee with seven years’
service with the applicant.
[2]
Contrary to the employer's claim that
he had not dismissed the third respondent, the arbitrator found that
he had and that the dismissal
was substantively and procedurally
unfair. The arbitrator awarded the third respondent eight month’s
remuneration as compensation.
Grounds of review
[3]
The grounds of review raised by the
applicant mainly concerned the manner in which the arbitrator ran the
arbitration hearing and
in particular his handling of the matter of
legal representation. The applicant claims that initially, the
arbitrator permitted
an attorney to represent the employee because
the employer was represented by a Labour Consultant. The latter
appears to have been
allowed to represent the applicant on the basis
that he was a
bona fide
member or official of a registered employer’s organisation. The
applicant claims that the Labour Consultant was asked to
leave the
meeting but the arbitrator did not revise his view on whether the
employee should still be permitted legal representation
in view of
the consultant's departure from the hearing. Rubichand contends it
was up to the employer to object to her continued
representation by
an attorney, and the applicant cannot raise this objection belatedly
on review.
[4]
The applicant contends that nothing
turns on whether the employer's representative was asked to leave the
meeting or left on his
own accord because it had already been
established that he was not entitled to appear in the arbitration as
he did not meet any
of the criteria for representation set out in
rule 25(1) (b) of the CCMA rules. That provides that an employer
party to arbitration
proceedings in the CCMA may only be represented
by a legal practitioner, a director or employee or an official of an
employer's
organisation which the employer belongs to. In fact,
there are further limitations on the use of legal representatives in
misconduct cases, which are set out in Rule 25(1)(c). This provides
that legal representation is only permitted with the consent
of all
concerned or, if no consent is granted, subject to the commissioner’s
discretion after applying a multi-factor test.
[5]
Secondly, the applicant claims that
the employee did not give evidence and the arbitrator was not
entitled to consider her version
that, after being arrested at Mr
Moodley's instance, at the police station, she was informed by Mr
Moodley that she was dismissed
and that her salary was stopped
thereafter. The third respondent contends that this is not an
accurate account of what transpired
as only one witness of the
employer gave evidence under oath, and that witness had no knowledge
of what transpired at the police
station. That episode was dealt with
in the form of statements made on her behalf by her attorney and by
Mr Moodley for the firm,
and that was the only 'evidence' before the
arbitrator on the critical issue of what transpired there.
[6]
Thirdly, the applicant attacks the
arbitrator for directing it to start leading evidence on the
assumption that the employee had
been dismissed, despite this being a
contested issue. Moreover, as the only evidence adduced in the
arbitration was produced by
the employer, in the absence of evidence
to the contrary tendered by the employee, the arbitrator could not
justify his conclusion
that the employee was dismissed. Rubichand
again submits that this is something of a mischaracterisation of what
transpired as
the arbitrator only made a provisional ruling after
hearing statements from both parties.
Evaluation
[7]
The transcript of the proceedings
obviously commences a little bit after the arbitrator had already
made a ruling on the question
of representation. Nevertheless, it is
clear from the Commissioner's introductory remarks what had
transpired earlier. The Commissioner
said:
"The
employer arrived an hour after the start of the matter and the
employer's representative, Mr Moodley -sorry, I'm just
looking for my
form. Here it is, sorry. Mr Moodley could not provide any proof that
he is in fact a member of the employer's organisation-
Mr Ismail,
sorry, Mr Ismail, that he is a member of the employers organisation
and was asked to leave the room. The employer, Mr
Moodley has now
indicated that he is prepared to continue with the matter. Mr Bhamjee
in return, I’d already, the issue was
not in dispute that he
would appear if Mr Ismail was present, so we'll proceed with the
matter on that basis.”
[8]
It is apparent from his comments that,
the Commissioner had previously made a ruling that the employer's
representative could not
appear in the hearing because he was not a
member of an employer's organisation. It is also clear that
originally the applicant
had been allowed legal representation on
account of permitting Mr Ismail to appear. The arbitrator mentions
that the employer was
prepared to continue with the matter but in his
next breath mentions that the applicant’s lawyer’s
presence had been
conditional on Mr Ismail’s attendance.
[9]
The most favourable interpretation of
this for the applicant is that Mr Moodley had consented to the
applicant still being represented
by an attorney notwithstanding Mr
Ismail’s exclusion from the hearing. But there is no indication
that when Mr Moodley was
asked whether he was willing to continue
with the hearing he was advised that the question of representation
could be reconsidered
if he was unhappy with the applicant being
represented by a lawyer. I am not satisfied on the evidence that the
employer understood
that it was within his rights to still object to
the applicant being represented by an attorney, when the original
basis for permitting
her legal representation appears to have been
mainly, if not wholly, based on the employer being represented by Mr
Ismail. In the
circumstances, there was a duty on the arbitrator to
reopen the question of legal representation. At the very least, he
could have
asked the employer if he nonetheless agreed to the
employee still being represented by an attorney. The factual basis on
which
legal representation had been agreed to, had disappeared, and
the arbitrator ought to have established whether the employer
expressly
agreed to Mr Bhamjee’s continued presence as the
employee's representative. Consequently, the arbitrator committed
misconduct
in relation to his duties.
[10]
It was submitted in argument that the
employer cannot raise this objection belatedly on review, but it is
not obvious that he would
have known of his right to object at that
stage.
[11]
The second issue concerns the manner in
which evidence was heard. Mr Bhamjee and Mr Moodley both gave fairly
extensive introductory
accounts of the dispute. After hearing them
both the arbitrator, addressing Mr Bhamjee, said:
"I'm
going to, because of the very nature of this matter, if the Applicant
has not been working for the months, not been paid
for three months,
I'm going to assume, without making a ruling, that she's been
dismissed, which means that the onus is upon yourself,
sir, to prove
that the dismissal was fair or that you never dismissed, whatever you
want to prove. It means in effect that you
need to start by
presenting your case and giving your, the evidence. So we will start
with your case.
[12]
Mrs V Ramduth (‘Ramduth’)
was then sworn in as the employer’s witness. After she had
testified it appears Mr Moodley
decided not to call anyone else and
the Commissioner confirmed that he was closing his case. Mr Bhamjee
then stated:
"If
he is closing his case, he has not proved a thing. He hasn't
necessarily (inaudible) the dismissal stands from 13 April,
or rather
16 April. (Inaudible) therefore there was no procedure, there was no
reason for her dismissal. There was no process followed
to ensure
that the applicant on her version went back to work except one phone
call. The evidence of procedure needs to be treated
with caution. She
had no knowledge of whatever had gone on. She was merely a messenger.
The duty still rested with the Respondent
to take certain steps,
which it failed to do. Its simply not good enough to say its within
the hands of the police, or the CCMA.”
[13]
Mr Bhamjee proceeded to argue the
employee's case, and later in his representations suggested that the
situation was similar to
one in which a party asks for absolution
from the instance because the other party had failed to discharge the
onus. He argued
that even though such a procedure didn't exist at the
CCMA "the Commissioner is also bound by the normal rules of
evidence,
and in the circumstances I am of the view that it does need
that discretion." He then asked the Commissioner effectively to
make a ruling that the employer had failed to discharge the onus that
the employee had been fairly dismissed after which he would
consider
whether or not to lead evidence. However the Commissioner refused
this invitation and made it clear that, that was not
his decision
whether the employee should lead evidence. The arbitration
proceedings then concluded, without Rubichand leading any
evidence
herself.
[14]
In summary, what had happened was that
the arbitrator had made a provisional finding on the employee's
dismissal based simply on
the representations of both parties,
without those versions being supported by evidence under oath and
without being tested under
cross-examination. Having made that
provisional ruling, which he never revisited, the arbitrator then
burdened the employer with
the duty of proving that the dismissal was
fair. At the end of Ramduth’s evidence, the arbitrator did not
point out to the
employer that, as things stood, the only evidence
properly before him was Ramduth’s, when he must have known from
Moodley’s
and Bhamjee’s opening statements that the
answer to whether there was a dismissal and how it might have come
about lay in
a proper examination of those two versions.
[15]
In his award, having noted that the
employee had decided not to give evidence under oath because she felt
that the respondent had
not discharged its onus to prove her alleged
dismissal was fair, he then proceeded to analyse her version, thus:
“
The
applicant's version was that she was dismissed, by Mr Moodley
personally at the police station. That apparently being the reason
why she phoned in the afternoon to request a letter dismissal. Mr
Moodley not challenge this allegation nor give evidence to deny
the
allegation. In my view an omission on the part of Mr Moodley. Mr
Moodley further conceded that although the applicant was not
an
employee any longer, he could not advance any explanation how the
employment contract was terminated or when it was terminated."
[16]
Consequently, despite being aware that
the only testimony properly admitted in the enquiry was that of
Ramduth, the arbitrator found
against the employer at least to a
significant extent because he had not led evidence to repudiate the
opening statement of the
employee’s representative. In the
arbitration hearing, he did not even ask the parties whether they
would confirm their opening
statements under oath and allow each of
them to cross-examine the other thereon. Obviously, the arbitrator
irregularly equated
the employee’s opening statement with
evidence, but would not afford the same status to the employer’s
opening statements.
Plainly, this was a gross irregularity in the
conduct of the proceedings and amounted to misconduct on his part in
relation to
his duties as an arbitrator. Morever, on Ramduth’s
evidence the employer’s case was that Rubichand did not return
to
work as she said she would, so the evidentiary burden clearly was
on her to explain her non-return, by challenging Ramduth’s
version of events.
[17]
In argument, it was submitted by
Rubichand that the arbitrator was entitled to require the applicant
to start leading evidence despite
there being a dispute over whether
or not Rubichand had been dismissed in terms of the arbitrator’s
power to conduct the
arbitration in a manner he or she considers
appropriate to determine the dispute fairly and quickly. I agree.
There may for example
be merit in an employee giving evidence first
even when the employer bears the onus for proving the fairness of the
dismissal,
if the nature of the employee’s complaint has not
been clarified in a pre-arbitration agreement. However, the
arbitrator
must not lose sight of what evidence has been led. The
arbitrator cannot simply use the opening statement of the employee’s
representative as a rough proxy of the evidence she would give,
especially when she bears the onus on the issue under consideration.
[18]
This is not a mere formality. According
to the employer’s only witness Mrs Ramduth, it was on a Sunday
that she had first
phoned Rubichand, who was not at work, to inform
her that she had been seen on video footage paying out extra money to
a customer,
which Rubichand denied on the phone and terminated the
call. On the following Monday, Rubichand phoned and said she
wanted
‘a dismissal letter’. However, Mr Moodley had said
they could not issue a dismissal letter because she had not been
dismissed. Ramduth claims she told Rubichand she must return to work
and Rubichand said she would come in the following day but
never did.
It was put to Ramduth, that when Rubichand testified, she would say
that when she phoned Ramduth, she had told her she
had been fired and
was not returning to work. Because Rubichand never corroborated this
version in testimony, it was effectively
never tested under
cross-examination, even though the two versions contradicted each
other in material respects.
Conclusion
[19]
In conclusion, the arbitrator committed
serious procedural irregularities in the way he conducted the hearing
and in failing to
properly distinguish between representations and
evidence when he evaluated what had transpired at the hearing. In the
circumstances,
the award must be set aside. Since the issues of
representation and the leading of evidence were not properly handled,
this is
not a case that can be decided on the existing record and
must be remitted for a hearing
de novo
.
[20]
In passing, I should mention that it is
not necessary for the purposes of this judgment to make any finding
on whether the applicant
was entitled to be represented by Mr Ismail,
or whether the requirements of CCMA Rule 25(1) (b)(3) were met.
Order
[21]
The second respondent’s award
dated 22 July 2012 issued under case number KNPM 1247-12 is reviewed
and set aside.
[22]
The matter is remitted back to the first
respondent, which must set the matter down for a hearing
de
novo
before a commissioner other than
the second respondent.
[23]
No order is made as to costs.
___________________
R Lagrange
Judge of the Labour Court
Appearances:
For the
Applicant:
.....................
Mr S Khan
…
.............................................
Instructed by A. Singh & Associates
For the Third
Respondent: Mr P J Blomkamp
…
...........................................
..
Instructed
by Bhamjee Attorneys