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[2014] ZALCJHB 118
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Kobe and Another v Commissioner for Conciliation Mediation And Arbitration and Others (JR2014/11) [2014] ZALCJHB 118 (10 March 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
CASE NO:JR2014/11
In
the matter between:-
JUNIUS
KOBE AND 1
OTHER Applicants
and
COMMISSIONER
FOR CONCILIATION MEDIATION AND First
Respondent
ARBITRATION
FRANCIS
MAAKE KGANYAGO
N.O Second
Respondent
POTGIETERSRUS
PLATINUM
MINE Third
Respondent
Heard:
3 February
2014
Delivered:
10 March 2014
Summary: Employees and
co workers lodged a complaint against their manager. Management
not responding- matter escalated to
CCMA as grievance- Employees
victimized- Employees then found guilty and dismissed in their
absence- Not notified of date of hearing-
Non compliance with Code of
Good Practice: Dismissals- Employer not complying with Health
and Safety Act for blasting certificates-
Employer not complying with
procedural fairness no separation of powers in management.
JUDGMENT
FOUCHÉ
AJ
Introduction
[1]
This is an application in terms of Section 145 of the Labour
Relations Act (LRA) 66 of 1995, for the review and setting aside
of
an award LP 7752-10, where the Second Respondent (Commissioner
Kanyago) found that the dismissal of the Applicants were procedurally
fair.
[2]
The award was issued on 20 June 2011. The Applicants were represented
during the arbitration hearing by Mr. Ngobeni, an union
representative. After receiving the outcome of the Arbitration
hearing, the Applicants, on 4 July 2011, erroneously noted the
application for review at the CCMA (Polokwane). Subsequent to the
erroneous noting, the Applicants received a CCMA notification
and
filed the application for review at the Labour Court on 23 August
2011.
[3]
The Third Respondent opposed the matter on 10 October 2011 but filed
their Answering Affidavit on 17 January 2014.
[4]
The Applicants sought condonation for the late noting of the
application for review at this Court. After hearing argument,
condonation was granted.
Relief
sought
[5]
In the Applicant’s Founding Affidavit, the following relief is
sought:
‘
That
the arbitration award under case number LP 775210 dated 20 June 2011
be reviewed and set aside;
That costs of this
application be paid by the Respondents who opposes this application’.
[6]
In the Answering Affidavit, the Third Respondent prayed that the
Application for review be dismissed with costs.
Facts
[7]
The Applicants had no legal representation during the drafting of the
present Founding Affidavit before this Court. The affidavit
was
written by laypersons and is unusual in format as it contains a
summarized version of the evidence, called “survey of
evidence”.
[8]
The survey of evidence contains the versions of all the witnesses who
testified during the arbitration hearing. It states that
Mr. Ramaku,
the assistant employee relations officer, notified both of the
Applicants to appear at a disciplinary hearing on 25
August 2010. On
even date the Applicants requested a postponed in writing. In their
absence, the matter was postponed to 31 August
2010 to enable the
Applicants to obtain union assistance. On 31 August 2010, the
Applicants attended the hearing together with
a union representative
from FEDCRAW (Federal Council of Retail and Allied Workers). Mr.
Mdingi, the chairperson of the hearing
postponed the matter
sine
die
and held that the Applicants were not entitled to be
represented by a non recognised union.
[9]
The First and Second Applicants were employed by the Third Respondent
as Road Stone crusher foremen. They state in their affidavits
that
the charges proffered by the Third Respondent against the Applicants
was a direct retaliation act following the written grievances
lodged
by the Applicants and co-workers against their immediate supervisor,
Mr. Maade. The Applicants alleged that Mr.Maade threatened
to demote
them to lower ranking positions and had allegedly abused his powers.
[10]
It is clear from the facts presented to the Court that Third
Respondent was restructuring certain jobs. Mr. Maade held various
staff meetings aimed at moving the Applicants from the position of
foremen working on the crushers to the pit.
[11]
The disciplinary hearing of 31 August 2010 was re-scheduled to 3
September 2010. Neither of the Applicants was present at the
new
hearing date. The Third Respondent argued before this Court that the
Applicants refused to sign notifications to appear at
this hearing.
In juxtaposition, the Applicants stated they were not notified of
this date. The hearing of 3 September 2010 proceeded
in the absence
of the Applicants. As a result thereof, Mr. Maade signed the
Applicant’s suspensions. The Respondent’s
Procedure
Manual contains the formal procedure hearings rules. It stipulates
who may suspend and authorise suspensions of employees.
Clause 2.4
states that:
‘
2.4
In the event that, after considering the
issues set out in 2.1-2.3 above, the manager decides that
the
employee should be suspended then that manager must ensure that:-
2.5
The notification of the suspension is issued to the employee in
writing utlising the appropriate
form;
2.6
The notification of suspension must specify the time period of a
suspension;
2.7
The notification of suspension must specify that the employee will
not be required to work during
the period of suspension unless the
suspension was lifted prior to the expiry of the time period;
2.8
The notification of suspension must state that the employee may be
required to report to his/her
place of work in the event that the
employee be required to assist and/or participate in investigations
related to his/her misconduct
or the misconduct of other employees.
Failure by an employee to report when instructed to do so by
management could result in further
disciplinary action being taken
against the employee in question.
2.9
All suspensions must be authorised by the General Manager or his/her
nominated representative
if he/she is not on site.’
[12]
Mr. Maade was in terms of Clause 2.9 above, the Business Unit
Manager’s nominated representative. He was thus the person
who
suspended employees and thereafter authorised it. Bundle D, page 33,
records that in the arbitration award between the present
Applicants
under case number LP4581-10 of 9 December 2010, Mr. Maade indeed held
both the position of supervisor and nominated
Business Unit Manager.
The Applicants’ suspension was accordingly not properly
authorised and was substantially unfair.
[13]
During the arbitration proceedings of 20 June 2011, the
Commissioner’s focus was solely on the question whether the
Applicants had notification that 3 September 2010 was the
disciplinary hearing date.
[14]
The Third Respondent charged the Applicants with the following
counts:-
‘
(1)
insubordination,
(2) insolence,
(3) refusal to obey
lawful instructions.’
[15]
The Applicants on 20 August 2010, at the receipt of the notice to
appear at the disciplinary inquiry, send a written request
to the
Chairperson for postponement in order to find representation. The
postponement was granted and a subsequent notification
was served on
them to appear on 31 August 2010. On even date, the Applicant
appeared at the hearing together with FEDCRAW. As FEDCRAW
is not a
union recognised by the Third Respondent, the hearing was postponed
sine die.
[16]
The Applicants in June 2010 lodged a written grievance against their
supervisor, Mr. Maade. They aggrieved the following actions
of Mr.
Maade:
‘
(a)
Abuse of power
(b) Forced, intimidation
and threatened
(c) Malicious words.’
[17]
The Applicants received no response from management in respect to
these charges. This culminated in their receipt of suspension
letters
on 28 July 2010. At the time of receipt of the notice to appear at
the August 2010 disciplinary hearing, the Applicants
were still
awaiting the CCMA’s response to their grievance against Mr.
Maake.
Submissions
of the Parties
[18]
The Applicants stated that they arrived together to appear at the
hearing of 31 August 2010. The chairperson did not hear evidence
as
the only point of discussion was their request to be represented by
FEDCRAW. The Third Respondent refused to allow FEDCRAW to
represent
the Applicants as the Third Respondent did not recognise the union.
The Third Respondent submitted the representation
by FEDCRAW was
against company policy.
[19]
Pursuant to the exclusion of FEDCRAW as representative union of the
Applicants, Mr. Ramafola of the Third Respondent handed
Annexure
“JK7”, being the Procedure Manual, to the Applicants
wherein it is recorded that a non recognised union may
not appear at
disciplinary hearings. The Applicants left the meeting together after
receipt of Annexure “JK7”.
[20]
The Applicants referred the Court to the Procedure Manual, to
substantiate their submission that the Third Respondent applied
the
incorrect procedure. Mr. Maade firstly, in the capacity as their
supervisor, and secondly, in the capacity as the Business
Unit
Manager’s representative signed and authorised their
suspension. Their suspensions were not properly authorised and
thus
unfair.
[21]
The Applicants were restricted from entering the premises of the
Third Respondent and neither of the Applicants entered the
premises
for a disciplinary hearing, but for 31 August 2010, together with
FEDCRAW.
[22]
The Respondent argued that the disciplinary hearing of 31 August 2010
could not continue, and it was postponed by the Chairperson,
Mr.
Mdingi to 3 September 2010. As neither of the Applicants was present
on 3 September 2010, the disciplinary hearing was held
in their
absence. The Third Respondent on advice of Mr. Mdingi, a chief
geologist, continued with the hearing in the Applicants’
absence.
[23]
The Applicants averred that they never received notification of the
disciplinary hearing of 3 September 2010 and accordingly
was not
wilful or reckless by non attending.
[23]
The Third Respondent argued that Mr. Ramafola postponed the matter to
25 August 2010 in the Applicants’ presence to 3
September 2010.
It is clear that this is factually incorrect as the postponement of
25 August 2010, occurred in their absence following
a written request
of the Applicants.
[24]
The Applicants argued that their suspension and subsequent dismissal
flow from the grievance which they and their co-workers
lodged with
the management against Mr. Maade. As the management failed to deal
with the matter, they approached the CCMA for an
intervention.
Resultant was the disciplinary proceedings Mr. Maade started against
the two Applicants.
[25]The
Applicants argued that their suspension was confirmed by Mr. Maade
sitting in two roles, as their line supervisor, and the
nominated
representative of the Business Unit Manager, which invalidates it.
[26]
Applicants furthermore argued that they are not correctly qualified
to be transferred to work on the pit as neither of the
Applicants
holds blasting certificates. Neither the First nor the Second
Applicant can thus legally be employed to work on the
pit, as they
are from the perspective of safety and operational requirements not
adequately trained.
[27]
The Third Respondent argued that corroboration of the wilfulness and
disobedience of the Applicants to attend the hearing of
3 September
2010 is found in the fact that the Applicants refused to sign the
disciplinary notifications. The Court was referred
to the Annexures
“JK1”, Bundle A on page 78, being the
Notification/Summons to attend the hearing. Third Respondent
argued
that the chairperson followed the correct procedure to continue the
disciplinary hearing in the absence of the Applicants.
After perusing
Annexures “JK1”, the Court is satisfied that it refers
only to the dates 25 August 2010 and 31 August
2010 and not 3
September 2010.
Evaluation
of the parties submissions
[28]
Annexure “JK1” the Notification/Summons to attend the
hearing indeed reflects that it was personally signed by
the First
Applicant. During the arbitration hearing, Mr. Ngobeni on behalf of
the Applicants cross-examined Mr. Ramafola on the
notification. In
Bundle C pages 75 the following statement is found:-
‘
Ms.
Ramafola: What are they referring to, to the notification or to the
rep because I refuse to I am the ER in the matter and I
refuse to
communicate with FEDCRAW at all times so I never send them any letter
so I don’t know what you are talking about.’
[29]
Ms. Ramafola’s above statement corroborates the Applicants’
version that they were not present at the disciplinary
hearing of 3
September 2010 as they were not notified of the hearing date.
[30]
Mr. Ngobeni, of the union, who represented the Applicants during the
arbitration hearing of 13 April 2011, conducted the defence
of the
Applicants in English. From the commencement of the proceedings, it
was clear that Mr. Ngobeni did not understand the procedure
and
processes. On page 2 of Bundle C of the Arbitration record, the
following is recorded:-
‘
Commissioner:
Is dismissal in dispute or was the employee not dismissed?
Mr. Ngobeni: Yes.
Commissioner: Yes, what?
Mr. Ngobeni: That the
Applicant was dismissed.’
[31]
During the Arbitration hearing, Mr. Ngobeni did not confirm with the
Applicants. Neither did the Commissioner confirm with
the Applicants
if they agreed with the statement on behalf of their union
representative. On page 3 of Bundle C of the Arbitration
record, the
following is recorded:-
‘
Commissioner:
Is that all, the opening statement, Mr. Ngobeni.
Mr. Ngobeni: Thank you
Mr. Commissioner as far as we know in this matter the applicant is
going to contest procedure substance will
not be in dispute.’
Relevant
requirements pertaining to dismissals
[32]
In accordance with Section 192(1) of the LRA,
[1]
the Applicant bears the
onus
to
prove on a balance of probabilities that a dismissal occurred. Once
it has been proven, the
onus
shifts
to the employer to prove that the dismissal was fair. The Applicants
were both dismissed after being found guilty at the
disciplinary
hearing in their absence. Mr. Maade testified that the Applicants
repeatedly refused to obey lawful instructions.
According to Mr.
Maade, their refusal to work in the open pit serves as an example.
[33]
Grogan
[2]
in dealing with the
Code of Good Practice: Dismissals, states that consistency should be
applied when dismissing employees, specifically,
employees
participating in the same set of conduct. Paragraph 6 of the Code of
good Practices reads as follows:-
‘
(6)
The employer should apply the penalty
of dismissal consistently with the way in which it has
been applied
to the same and other employees in the past, and consistently, as
between two or more employees who participate in
the misconduct under
consideration.’
[34]
It is trite law that the disciplinary hearings must be procedurally
and substantially fair. Procedural fairness requires compliance
with
natural justice, the
audi
alteram partem
rule
[3]
and company policies and procedures
[4]
.
[35]
Adverse evidence available to the disciplinary officer must be
disclosed to the employee and/or his representative for
challenge.
[5]
. Enabling the
representing party to challenge evidence impacts on two aspects in
this case. Firstly, that another employee has
successfully challenged
the illegality of a suspension performed and authorised by the same
person (Mr. Maade) and not by two separate
and distinct persons as
required in the Third Respondent’s procedure Manual. Mr. Maade
was thus the player and referee at
the same time, wearing different
hats to serve the relevant step or occasion. Secondly, the right of
fair proceedings before the
arbitrator.
[36]
It is trite law that fair reasons must exist to terminate the
employment contract legitimately. Reasons for the termination
must
exist such as: the conduct of the employee, the capacity of the
employee and, operational requirements of the employer’s
business. The Act prescribes that a dismissal is automatically unfair
if the reason for the dismissal amounted to an infringement
of the
fundamental rights of the employees and trade unions, or if the
reason is one of the listed grounds in Section 187 of the
Labour
Relations Act. Section 187 reads as follows:
“
Section
187. Automatically unfair dismissals
(1)
A dismissal is automatically unfair if the employer, in dismissing
the employee, acts contrary
to section 5 or, if the reason for the
dismissal is-
(a)
that the employee participated in or supported, or indicated an
intention to participate
in or support, a strike or protest action
that complies with the provisions of Chapter IV;
(b)
that the employee refused, or indicated an intention to refuse, to do
any work normally
done by an employee who at the time was taking part
in a strike that complies with the provisions of Chapter IV or was
locked out,
unless that work is necessary to prevent an actual danger
to life, personal safety or health;
(c)
to compel the employee to accept a demand in respect of any matter of
mutual interest between
the employer and employee;
(d)
that the employee took action, or indicated an intention to take
action, against the employer
by-
(i)
exercising any right conferred by this Act; or
(ii)
participating in any proceedings
in terms of this Act.
”
[37]
In cases where a dismissal is not automatically unfair, the employer
must show that the reasons for dismissal related to the
employee’s
conduct or capacity or is based on the operational requirements of
the business. Where the employer fails to do
that or fails to prove
that the dismissal was effected in accordance with a fair procedure,
the dismissal is unfair.
[6]
[38]
Grogan
[7]
opines that five
guidelines determine the fairness of a dismissal for misconduct,
being:-
‘
Any
person who is determining whether a dismissal for misconduct is
unfair should consider-
(a)
whether or not the employee contravened a rule or standard regulating
conduct in,
or of relevance to the workplace, and
(b)
if a rule or standard was contravened, whether or not-
(i)
the rule was a valid or reasonable rule or standard;
(ii)
the employee was aware, or could reasonably be expected to have been
aware, of the
rule or standard
(iii)
the rule or standard has been consistently applied by the employer,
and
(iv)
dismissal was an appropriate sanction for the contravention of the
rule or standard.’
Relevant principles
pertaining to employees absence during proceedings
[39]
Employees must be present at the hearing to challenge the facts
adduced.
[8]
It is only in
exceptional circumstances that the employer may proceed in the
absence of the employee.
[9]
[40]
It was held in
OTK
Operating Company Ltd v Mahlangu
[10]
that the employee should be allowed in his defence or in mitigation
to call a witness or to cross-examine the employer’s
witnesses.
Similarly, the employer has the right to cross-examine the employee’s
witnesses.
[11]
[41]
It was held in
Leonard
Dingler (Pty) Ltd v Mgwenya
[12]
that the consequence of procedural unfairness in accordance with
Section 193 of the LRA is to grant reinstatement, where the dismissal
is proved unfair and the employee so desires.
[42]
Grogan
[13]
opines thatwhere
the employer merely failed to comply with fair procedure,
compensation should be awarded, except in case of a
trifling
procedural irregularity where the Courts may exercise their
discretion not to award compensation.
[43]
In
Jabhari
v Telkom SA (Pty) Ltd,
[14]
an employee was dismissed after the chairperson on the disciplinary
inquiry found that the employment relationship had irretrievably
broken down as the employee was incompatible with the “corporate
culture”. The employee claimed he was unfairly dismissed
due to
the initiated grievance and legal proceedings against management. The
Court found that the employee was victimised and that
the dismissal
was automatically unfair.
[15]
.
Grounds
of review
[44]
The Third Respondent in his heads of argument records that the
Applicants raised three grounds of review:
[44.1] Firstly,
that the Commissioner committed a gross irregularity during the
arbitration proceedings by failing to provide
reasons for his
conclusion.
[44.2] Secondly,
that the Commissioner committed a gross irregularity by failing to
act inquisitorially during the arbitration
proceedings.
[44.3] Thirdly, the
Commissioner failed to accurately record and reflect the evidence
presented during the arbitration in
his award.
The
award
[45]
The Commissioner’s award is as follows:-
‘
6.1.
That the respondent had discharged their onus of
proof and therefore the dismissal of the applicants was
procedurally
fair.
6.2
There is no order as to costs.’
Evaluation of the
award
[46]
The grounds for review set out in Section 145 of the Labour Relations
Act are:-
‘
(1)
any party to a dispute who alleges a defect in any arbitration
proceedings under the auspices
of the Commission may apply to the
Labour Court for an order setting aside the arbitration award-
(a)
within six weeks of the date that the award was served on the
applicant
(2)
a defect referred to in subsection (1) means-
(a)
that the commissioner-
(i)
committed misconduct in relation to the duties of the commissioner as
an arbitrator;
(ii)
committed a gross irregularity in the conduct of the arbitration
proceedings; or
(iii)
exceeded the commissioner’s powers; or
(b)
that an award had been improperly obtained’.
[47]
The Applicants had no legal assistance in the drafting of the
application for review. In their Founding Affidavit, the Applicants
avers that the commissioner in arriving at his factual and legal
conclusions reached a conclusion which a reasonable decision-maker
would not have reached. In paragraph 1.6.1 of the Founding Affidavit,
the following is stated
‘
It
is therefore submitted that if the commissioner had given regard to
the contex of the manual together with the first respondent
concession that they were supposed to give the applicant an
opportunity to challenge both alleged charges in both substantive
fairness commissioner would not have concluded that the.(Applicant’s
Founding Affidavit contains this incomplete sentence)
[48]
During argument in Court, the Court was referred to clauses 2.4 to
2.9. of the Third Respondent’s Procedure Manual on
Formal
Hearings. It was stated that Clause 2.4 empowers the line manager to
suspend employees after due consideration. Thereafter
Clause 2.9
empowers the Business Unit Manager or the duly appointed
representative to authorise the suspension. Applicants argued
that
due process rights, equity and fairness require the Third
Respondent to appoint two separate persons to comply with
these two
distinct functions.
[49]
In the case of the Applicants, Mr. Maade, their line supervisor and
manager, was the duly appointed Business Unit Manager representative.
The separate functions required in clause 2.4, being the
consideration function and in clause 2.9 the authorisation function,
were thus performed by Mr. Maade.
[50]
The Third Respondent did not offer any explanation or another
interpretation to clauses 2.4 and 2.9 of the Third Respondent’s
Procedure Manual. The matter is thus not contended and thus
caedit
questio
.
[51]
Applicants in their Founding Affidavit under the paragraph “Relief
Sought” stated that the Commissioner failed
to record the full
arbitration proceedings. They state that the arguments on substantive
fairness were not recorded. In paragraph
1.6.0 of the Founding
Affidavit, the Applicants state that the Commissioner ignored their
statements based on substantive fairness
and only recorded the
aspects dealing with procedural fairness. Similarly in paragraph 5.2
of the Founding Affidavit, it is stated
that:
‘
5.2
On the date of the arbitration the two
applicants wanted to challenging both substantive and procedural
fairness but the applicants challenge to this was not taken.’
[52]
The Third Respondent in the Answering Affidavit responds to these
allegations by stating firstly that the contents is noted,
then that
the Applicants only challenged procedural fairness and not
substantive fairness.
[53]
The record does reflect that prior conversations occurred between the
Commissioner and the Third Respondent, which was not
recorded. On
page 6, bundle D Lines 8-15 the following is found:
‘
Commissioner:
I hope you are not going to call the people that will deal with the
substance.
Ms. Ramafola: I told you
I have got two witnesses to talk to the procedure and two witnesses
to talk to the substantive part.’
[54]
It must be noted that the union representative of the Applicants did
not respond to the above passage. It appears that one
of the
Applicants heard this conversation and responds as follows:
‘
Mr.
Kobe: Before you go on I should go to some other documents.’
[55]
Neither of the parties before me illuminated on this statement by Mr.
Kobe (First Applicant). It was not denied by the Third
Respondent
that the First Applicant intervened in the process, neither that the
record might be defective.
[56]
To exasperate the matter, the record reflects that the request to
peruse documents was ignored. In Bundle D page 7 lines 7-15
the
following is found:
‘
Commissioner:
Bundle B and for the respondent, bundle A. You may proceed.
Mr. Ngobeni: I am just
going to make a last request, to have five minutes to check these
documents before we proceed
Commissioner: Maybe in
the meantime you know that you are challenging procedure; to make a
statement will not be possible, if the
parties can consider.’
[57]
The
crux
of the Applicants’ grounds of review is thus
that the Commissioner acted irregularly by not allowing the
Applicants the opportunity
to state their case. This was argued
resulted in an unfair trial and non-compliance with their fundamental
rights and rules of
natural justice.
[58]
The Applicants stated in the Founding Affidavit that the
discrepancies between the Third Respondent’s witnesses were
ignored. Mr. Rakumaku testified that the Applicants appeared in
person at the hearing of the 25 August 2010, whilst Mr. Mdingi
testified they requested a postponement by a written letter
in
absentia
. This resulted in the Applicants not having a fair
trial.
[59]
In
Carephone
(Pty) Ltd v Marcus NO and Others,
[16]
which was decided before the advent of PAJA, the Court enunciated the
test for Section 145 of the Labour Court reviews as:
‘
...is
there a rational objective basis for justifying the connection made
by the administrative decision maker between the material
property
available to him and the conclusion he or she eventually arrived at?’
[60]
In
Nampack
Corrugated Wadeville v Khoza,
[17]
the Labour Appeal Court held that:
‘
....this
discretion must be exercised fairly. A court should, therefore, not
lightly interfere with the sanction imposed by the
employer unless
the employer acted unfairly in imposing the sanction. The question is
not whether the court would have imposed
the sanction imposed by the
employer, but whether in the circumstances of the case the sanction
was reasonable’.
[61]
In
Rustenburg
Platinum Mines Ltd (Rustenburg section) v Commissioner for
Conciliation, Mediation & Arbitration and Others,
[18]
the
Labour Appeal Court stated that Section 33 of the Constitution
extended the scope of review and introduced a requirement of
rationality in the outcome of decisions. Section 33 of the
Constitution states that:-
‘
(1)
Everyone has the right to administrative action that is lawful,
reasonable and procedurally
fair.’
[62]
An objective inquiry must take place during the arbitration
proceedings and must be reflected in the Arbitrator’s
award.
[19]
The award must be
rationally connected to the information before the arbitrator and the
reasons entered on the record. It must
be established if the
arbitrator properly exercised the powers given to him in compliance
with Section 3 of the Labour Relations
Act and the Constitution. The
rational objective test set out in
Carephone
infra
,
must thus be applied.
[63]
In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[20]
Navsa AJ held that a Commissioner conducting a CCMA arbitration
performs an administrative function and that the Promotion of
Administrative Justice Act does not apply to arbitration matters in
terms of the Labour Relations Act.
[64]
In
Heroldt
v Nedbank Ltd,
[21]
,
the Court found that the test applicable to Section 145 LRA reviews
recognises that dialectical and substantive reasonableness
is
intrinsically interlinked and that latent process irregularities
carry the inherent risk of causing a possible unreasonable
outcome.
The Court must scrutinize the Commissioner’s reasons to
determine whether a latent irregularity occurred, being
an
irregularity in the mind of the Commissioner, which is only
ascertainable from the Commissioner’s reasons. On page 1802,
Murphy AJA in paragraph 39 states:-
‘
There
is no requirement that the commissioner must have deprived the
aggrieved party of a fair trial by misconceiving the whole
nature of
the inquiry. The threshold for interference is lower than that; it
being sufficient that the commissioner has failed
to apply his mind
to certain of the material facts or issues before him, with such
having potential for prejudice and the possibility
that the result
may have been different.’
[65]
The Applicant argued before the Court, that the Commissioner in
making the award overlooked certain material facts, being:-
65.1. The
Applicants challenged both the procedural and substantive unfairness
of their dismissal.
65.2. The
Third Respondent presented two mutually destructive versions in
respect of the attendance of the Applicants
at the hearing of 25
August 2010.
65.3. That
the Applicants were by law not permitted to work on the pit as they
do not hold blasting certificates.
65.4. Their
dismissal flowed from the grievance lodged by the Applicants against
their line supervisor, Mr. Maake.
65.5
The evidence of the witnesses on behalf of the Third Respondent was
inconsistent and untruthful, which was
not put to the Third
Respondent for clarification.
[66]
It is trite law that a disciplinary hearing must be fair. Points of
non-compliance with natural justice, substantial unfairness
were
raised by the Applicants in the Founding Affidavit.
[22]
As a result of points raised of substantial unfairness during the
arbitration, the Applicants brought this review.
[23]
[67]
The Applicants submitted that the proceedings were not properly
recorded. In
NUMSA
v John Thompson Africa (Pty) (Ltd),
[24]
it was held that to refuse the person arraigned to refute allegations
constitutes unfairness
per
se
,
which vitiates any reliance on prior statements as these were not
tested under cross-examination. Accordingly, these proceedings
were
nullified by virtue of lack of proper and complete recording. In
Klaasen
v CCMA and Others,
[25]
Murphy AJ, in the context of an employee not testifying in a
misconduct case, 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 into the arena to direct the
proceedings in the interests of justice.
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’.
[68]
The award placed before this Court, does not muster the recording
requirements. The recording reflects defects. It does not
indicate,
if the recording devices was switched on or off at intervals or
arguments or deliberations. It does reflect that Mr.
Kolbe (the First
Applicant) made interjecting statements into the record, without
recourse. There is uncertainty whether all issues,
more specifically
the issues highlighted by the Applicants were ventilated during the
arbitration proceedings. The record before
the Court does not reflect
that the parties were warned of the consequences of the drawing of an
adverse inference or the acceptance
of uncontested evidence or not
attacking the substantiveness of their dismissal.
[69]
According to the Applicants, the Commissioner ignored all the
material evidence relating to the conduct of the Third Respondent
and
Mr. Maade. The Applicants allege that the Commissioner failed to
ensure that the cross-examiner understood their right to
cross-examine and to put their version to each of the witnesses in
order that issues be ventilated. There is no record that all
issues
were ventilated. Neither that the Commissioner stepped into the area
to direct the proceedings. The Record does not reflect
that witnesses
were given the opportunity to provide explanations on issues in
dispute.
[26]
It is clear that
not all issues were ventilated and that the required warnings were
not given by the Commissioner to the parties.
In President of the
Republic
v SA Rugby Football Union,
[27]
the following was said with regard to the cross-examination process:
‘
It
should be made clear not only that the evidence is to be challenged
but also how it is to be challenged. This is so because the
witness
must be given an opportunity to deny the challenge, to call
corroborative evidence, or to qualify the evidence given by
the
witness or others and to explain contradictions on which reliance is
to be placed.’
[70]
The inquisitorial functions and duties of the Commissioner during
arbitration proceedings are as follows
[28]
:-
70.1 The
Commissioner has a duty to point out to the parties that a new
version was put by a witness;
70.2 The
Commissioner has to instruct the parties to put a version of which
he/she is aware under oath;
70.3 The
Commissioner has to warn the parties that an adverse inference could
be drawn of his acceptance of uncontested
testimony.
[71]
The possibility exists that the learned Commissioner could have given
these three warnings to the parties and indeed as required
by the
Commissioner’s inquisitorial role. As the full record was not
recorded, these cannot be excluded. It is clear that
the Commissioner
did not descend to the arena when necessary. However, without the
proper and comprehensive mechanical recordings,
the possibility that
the parties were given the above three warnings, cannot be negated or
excluded. The Court perused the Review
application, Bundles B, C and
D. The mechanical recording is in Bundle D, which is incomplete.
Conversations took place which was
not recorded. Bundle C contains a
copy of the Third Respondent’s Procedure Manual, which is
relevant for determining substantive
fairness and procedure.
[72]
The arbitrator made the following final finding during the award:
‘
The
two applicants were not happy with the fact that their union
representative was not allowed to represent them during the internal
hearing and also the fact that the respondent wanted to proceed with
the disciplinary hearing before the pending arbitration was
finalized. As a sign of displeasure, they stayed away from the
disciplinary hearing of the 03/09/10. By intentionally failing to
attend the disciplinary hearing on the 03/09/10 they were the creator
of their own demise, the respondent has been generous with
them and
by proceeding with the disciplinary hearing on 03/09/10 in their
absence had acted in a fair manner. There was nothing
more the
respondent could do in order to accommodate them.’
[73]
I reject the final finding made by the Commissioner during the
hearing as nonsensical. There is no factual basis to substantiate
the
above finding. I find in favour of the Applicants that they were not
adequately trained to work on the pit. They have not completed
the
blasting certificate, which was the pre-requisite in terms of the
Health and Safety Act for working on the pit.
[29]
This together with the grievance the Applicants and co-workers lodged
against their immediate supervisor, Mr. Maade, convincingly
sways the
matter in favour of the Applicants.
[30]
[74]
Accordingly, it is the Court’s finding that an irregularity
occurred due to the incompleteness of the record, the incorrect
recording of the matter, the discussions between the Commissioners
and Representatives, which was not recorded, the failure to
give the
required warnings to the Applicants, the failure to address the
issues raised by the First Applicant as an interjection
appearing on
the typed record, the failure to apply the Third Respondent’s
Procedure Manual to the dispute. The matter must
be remitted for a
hearing
de novo.
[75]
Both parties asked the Court to award costs in their favour. As a
result of the fact that neither of the parties was the direct
cause
of referring the matter back to the CCMA, no party should be
penalised with a costs order.
Order
[76] For these reasons,
my order is as follows:-
i)
the application for Review is upheld
ii)
the matter is remitted back to the CCMA for a hearing
de novo
;
iii)
The CCMA is directed to send the matter to a senior Commissioner for
hearing with the
instructions to:-
a)
warn the parties of their fundamental rights;
b)
to alert the parties if a witness put a new version;
c)
to instruct the parties to put a version under oath of which he is
aware;
d)
to warn the parties that an adverse inference can be drawn of the
parties’ acceptance
of uncontested testimony put before the
Commissioner
e)
to record the above warnings in the record
iv)
The Commissioner is directed to hear the Applicants’ version on
both the substantive
fairness and the procedure applied during the
dismissal;
v)
No order as to costs.
_____________________
C. Fouché
Acting Judge of the
Labour Court
APPEARANCES:
FOR THE
APPLICANT
Edward Nathan Sonnenbergs
FOR
THE THIRD RESPONDENT :
TP Phahla Attorneys
[1]
Section
192 of the LRA reads as follows:
“
192.
Onus in dismissal disputes
(1)
In any proceedings concerning any dismissal, the employee must
establish the existence
of the dismissal.
(2)
If the existence of the dismissal is established, the employer must
prove that the dismissal
is fair.”
[2]
Grogan
Workplace
Law
9
th
edition
Schedule 8, Code of Good Practice: Dismissal, Page 461 at 463.
[3]
See
Mahlangu
v CIM Deltak; Gallant v CIM Deltak
(1986)7
ILJ 346 (LC).
[4]
See
NUM
and Others v Zinc Corporation of South Africa Ltd
(unreported
LAC case No 11/2/11462). See also
Sibiya
v NUM
[1996]
6 BLLR 794
(LC) at 801.
[5]
See
Yichiho
Plastics (Pty) Ltd v Muller
(1994)
15 ILJ 593 (LAC).
[6]
See
Grogan at 462.
[7]
See
page 464.
[8]
Van
Zyl v O’Kiep Copper Co
(1983)
4 ILJ 125 (LC);
National
Union of Metalworkers of SA and Another v Barlow Tractors Co
(1992)
13 ILJ 1281(LC).
[9]
See
Ntsibande
v Union Carriage and Wagon Co (Pty) Ltd
(1993)14
ILJ 1566 (LC), where it was held that the employee must be given
access to use an interpreter when necessary.
[10]
[1998]
6 BLLR 556 (LAC).
[11]
Hartlief
Continental Meat Products (Pty) Ltd v Mutotua and Others
(2000)
21 ILJ 1421 (LCN). See also
Magic
Company v CCMA and Others
(2005)
26 IJ 1271 (LC).
[12]
(1999)
20 ILJ 2531 (LAC).
[13]
Workplace
Law
208.
[14]
(2006)
27 ILJ 1854 (LC).
[15]
In
NUMSA
obo Joseph v Hill Side Aluminium
(2004)
25 ILJ 2264 (BCA) it was held that the making of frivolous
allegations is automatically unfair as the dismissal prejudiced
the
finding of the Court in the pending matter.
[16]
1999
(3) SA 304
LAC; (1998)19 ILJ 1425 LAC; [1998] 11 BLLR 1093 (LAC).
[17]
(1999)
20 ILJ 578 (LAC);
1999 2 BLLR 108
LAC at paragraph 33.
[18]
(2007)
28 ILJ 1107 (LC).
[19]
See
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004
(4) SA 490
(CC);
[2004] (7) BCLR 687
(CC) at paragraph 25.
[20]
2008
(2) SA 24
(CC); (2007) 28 ILJ 2405 (CC).
[21]
(2012)
33 ILJ 1789 (LAC).
[22]
See
Hotellica
and Another v Armed Responses
[1997]
1 BLLR 80 (IC).
[23]
See
Nasionale Parkeraad v Terblanche 1999 20 ILJ 1520 LAC; See also
Grogan
Workplace
Law
205.
[24]
[1997]
7 BLLR 932
CCMA.
[25]
[2005] ZALC 11
;
[2005]
10 BLLR 964
( LC) at paragraphs [26]- [28].
[26]
See:
ABSA
Brokers (Pty) Ltd v Moshoana NO and Others
[2005]
10 BLLR 939
LAC.
[27]
2000
(1) SA 1 (CC).
[28]
See:
Klaasen
v CCMA and Others
[2005] ZALC 11
;
[2005]
10 BLLR 964
(LC) at paragraphs [26]- [28]. See also
Republic
v SA Rugby Football Union
2000
(1) SA 1 (CC).
[29]
See
Bundle D page 113.
[30]
See
Jabhari
v Telkom SA (Pty) Ltd
(2006)
27 ILJ 1854 (LC).