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[2014] ZALCJHB 76
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Jansen v Commission for Conciliation, Mediation and Arbitration and Others (JR297/2009) [2014] ZALCJHB 76 (20 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case No: JR 297/2009
In the matter between:
ZIRK BERNARDUS JANSEN
Applicant
and
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
First
Respondent
COMMISSIONER T
PARKINSON
N.O.
Second
Respondent
IMPALA PLATINUM
LIMITED
Third
Respondent
COMMISSIONER MATTHEWS
RAMOTSHELA
N.O
Fourth
Respondent
Heard
: 06 February 2014
Judgment : 20 March
2014
Summary: No assessment
of sanction. Bias. Award reviewed and set aside.
JUDGMENT
AC BASSON, J
[1]
This was an application to review and set
aside an award in terms of which the Commissioner (the second
respondent) held that the
applicant (Mr Zirk Jansen) was fairly
dismissed. The finding of the Commissioner reads as follows:
‘
As
I have found that the applicant, Jansen, had breached his contractual
obligations on both counts, the conclusion inevitably follows
that I
find his dismissal to have been for a fair reason. I have already
indicated that a fair procedure was followed in effecting
that
dismissal’.
Rescission
application
[2]
In addition to the review application, the
Court was also called upon to review and set aside a rescission
ruling of a default award
issued by the fourth respondent on 31
January 2008. I indicated at the commencement of the argument that
there is no merit in this
application. The application for rescission
is therefore dismissed.
Review
of the award
[3]
The applicant raised 17 grounds for review
in the founding affidavit. Because of my view in dealing with this
matter, I do not intend
to deal with all of these grounds for review
as I am of the view that two of the grounds for review are
dispositive of the matter.
At the outset I should also point out that
although the Labour Court as a rule resists remitting matters back to
the CCMA for a
hearing
de novo
simply because of the delay it brings about in finalising a dispute,
I am of the view that, because of the defects in the award,
a
remittal of the dispute is the only option in dealing with this
dispute. I will now turn to the merits.
Was
there a consideration of an appropriate sanction?
[4]
It
is trite that where a commissioner finds an employee guilty of
misconduct he or she must thereafter decide whether to impose
a
sanction and/or what an appropriate sanction should be. It is
furthermore trite that a commissioner must apply his mind to the
issue of sanction and must approach the appropriateness of a sanction
by taking into account the totality of circumstances. A commissioner
must therefore consider what an appropriate sanction should be and
should at the very least provide reasons for his or her decision
on
sanction. See in this regard:
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
:
[1]
‘
[78] In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or
she will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee's challenge
to the
dismissal.
There are other factors
that will require consideration. For example, the harm caused by the
employee's conduct, whether additional
training and instruction may
result in the employee not repeating the misconduct, the effect of
dismissal on the employee and his
or her long-service record. This is
not an exhaustive list.
[79] To sum up. In terms
of the LRA, a commissioner has to determine whether a dismissal is
fair or not. A commissioner is not given
the power to consider afresh
what he or she would do, but simply to decide whether what the
employer did was fair. In arriving
at a decision a commissioner is
not required to defer to the decision of the employer. What is
required is that he or she must
consider all relevant circumstances’.
See
also in this regard the remarks by Zondo, J (as he then was) in
Maepe
v CCMA and Another:
[2]
‘
[39]
Once the Labour Court or an arbitrator has come to the conclusion
that a dismissal is unfair, the Labour Court or the arbitrator
must
now determine what relief or remedy, if any, should be granted to the
employee. The determination of what relief ought to
be awarded to an
employee is governed by the provisions of
section
193
of
the LRA…’
[5]
The
Supreme Court of Appeals in
Edcon
Limited v Pillemer N.O. and Others
[3]
also
specifically laid down the principle that an employer, in order to be
able to show that dismissal was the appropriate sanction,
must lead
evidence to show that there was a breakdown in the employment
relationship.
[4]
This principle
as set out by the LAC has been consistently followed by this Court.
See:
Chemical,
Energy Paper, Printing Wood and Allied Worker’s Union and
Others v CTP Limited and Another
[5]
where the Court held as follows:
‘
[162]
A further issue that requires mention is that,
in
order for the employer to satisfy the onus of proof that the sanction
of dismissal was fair, it is incumbent on it to lead evidence
to
establish a breakdown in the trust relationship
.
[6]
As the SCA put it in Edcon Limited v Pillemer N.O. and Others (1)
(Edcon): ‘In my view, Pillemer’s finding that Edcon
had
led no evidence showing the alleged breakdown in the trust
relationship is beyond reproach. In the absence of evidence showing
the damage, Edcon asserts in its trust relationship with Reddy, the
decision to dismiss her was correctly found to be unfair.’
[7]
See
also
Fidelity
Cash Management Service v CCMA and Others
[8]
where
the Labour Appeal Court clearly set out what the duties of an
arbitrator are when deciding an appropriate sanction:
‘
[94]
In terms of the
Sidumo
judgment,
supra,
the Commissioner must:
(a)
“Take into account the totality of circumstances”
(b)
“Consider the importance of the rule that had been breached”
(c)
“Consider the reason the employer imposed the sanction of
dismissal, as he or
she must take into account the basis of the
employee’s challenge to the dismissal”;
(d)
“Consider the harm caused by the employee’s conduct”;
(e)
“Consider whether additional training and instruction may
result in the employee
not repeating the misconduct”;
(f)
“Consider the effect of dismissal on the employee”; and
(g)
“Consider the employee’s service record’.
[6]
In
addition to the aforegoing, commissioners and arbitrators must also
consider the provisions of the
Code
of Good Practice:
[9]
Dismissal
and the relevant provisions of the Labour Relations Act (“the
LRA”).
[10]
In this
regard section 188(1) of the LRA provides that a dismissal that is
not automatically unfair is unfair if the employer fails
to prove the
matters stated therein. Section 188(2) enjoins a person considering
whether a dismissal is unfair to take into account
provisions of the
relevant Code of Good Practice. Lastly, in terms of section 192(2) of
the LRA it is clear that the onus is on
the employer to prove that
the dismissal is fair.
[7]
From
the aforegoing it is apparent that the consideration of an
appropriate sanction constitutes an important yet separate component
of the arbitration process. This was confirmed by the Labour Court in
Theewaterskloof
Municipality v SALGBC (Western Cape Division) and Others
[11]
where the Court held as follows:
‘
8
….In order to maintain the necessary distinction, some
assistance may be
drawn from the perspective that
a
typical arbitration comprises essentially two phases
.
The first is the receipt and evaluation of evidence in order to make
factual findings. That phase is governed by the ordinary
rules of
evidence and procedure and no value judgment is involved.
If
the employee’s guilt is established, the second phase arises,
being the identification and weighing of the factors relevant
to the
determination of sanction.
Various components must be placed in the scales: an objective
analysis of the particular facts of the case; adequate regard to
the
applicable statutory policy and framework; and adequate regard to the
pertinent juris prudence as developed by the courts.
Only
then can a value judgment, properly so called as a comparative
balancing of competing factors, be made by the commissioner,
producing as an end result an impartial answer to the central
question whether or not the dismissal was fair’.
[12]
[8]
Furthermore,
it is also a trite principle that the mere fact that a commissioner
finds an employee guilty of misconduct does not
as a matter of course
entitle an employer to dismiss.
[13]
See in this regard
Ikwezi
Municipality v South African Local Government and Others
where
the Court held as follows:
[14]
‘
[11]
The sole issue on review, as articulated by Mr Grogan, is whether
this Court should interfere with
the arbitrator’s finding that
dismissal was an appropriate sanction in the circumstances. Mr Wade
submitted that this refers
to a pure penalty review for
unreasonableness, which is not the basis of its attack. In this vein,
Mr Grogan submitted that the
gravity of the misconduct is only one of
the many factors to be taken into account by the arbitrator as set
out by the Constitutional
Court in
Sidumo
(supra
).
Seen in context the publication of the letter did not constitute
misconduct of such gravity so as to automatically warrant dismissal.
It reflects the kind of criticism that appears in the media daily.
In
any event, there is no misconduct, however serious, that
automatically licences an employer to dismiss an employee. The LAC
confirmed in
Toyota
South Africa Motors (Pty) Ltd v Radebe and Others
that mitigating factors must always be considered
.
This
would mean that even where an employee is found guilty of serious
misconduct, on consideration of all the facts dismissal may
not be
determined to be an appropriate sanction
.
The applicant’s submission that there is in essence a
contradiction between the finding that the employee is guilty of
misconduct and the remedy of reinstatement cannot therefore be
sustained.
The
ultimate test is whether the arbitrator applied his mind to
determining whether the sanction is appropriate in the circumstances
having regard to, among other factors, the misconduct committed’.
[15]
[9]
In the present matter is clear from the
award that the commissioner had simply accepted that, if the
applicant is found guilty of
the offences, that there would be a
fatal breach in the trust relationship. This much is clear from the
following comments:
‘
If
and whether he did so or not, he abused his duty of care in that his
conduct as a whole was motivated either directly or indirectly
to
secure a benefit for his wife’s company, Vuselela. Either of
those actions whether individually or in concert would, if
proven on
a balance of probabilities, constitutes (sic) a fundamental and fatal
breach of the trust relationship between the applicant
and the
respondent’.
The
commissioner in this matter therefore, assumed that there would be a
breach in the trust relationship despite the fact that
it was common
cause that the respondent did not call any witnesses to testify about
the gravity of the alleged offences or on the
effect of the alleged
misconduct on the trust relationship between the parties. Moreover,
it is clear that the commissioner did
not even consider important
factors such as the applicant’s considerable length of service
(which in this case was 24 years)
and the fact that the applicant had
an unblemished service record with the respondent for this long
period. There is also no reference,
nor could the respondent refer me
to any evidence to the effect that the trust relationship between the
parties had broken down.
The commissioner therefore arrived at this
conclusion despite no evidence to this effect. It was also never
canvassed in cross-examination
with the applicant that there is such
a breach. It is not for the commissioner to decide whether, in his
opinion, the trust relationship
has been tarnished or even broken
down – it is for the employer to present evidence of such a
breakdown in the trust relationship.
A commissioner is enjoined by
the Labour Relations Act to apply his mind to the issue of what an
appropriate sanction should be
and to do so with reference to all
relevant circumstances.
Ex facie
it is also clear that the
arbitrator had failed to have regard to the Code of Good Practice:
Dismissal (contained in Schedule 8
to the LRA) despite the fact that
he has such an obligation in terms of section 188(2) of the LRA.
[10]
In the premises I am of the view that the
award should be reviewed and set aside on this basis. I have decided
against remitting
the dispute back to the second respondent for a
re-evaluation of an appropriate sanction in light of my finding that
the commissioner
was biased. I will now turn to this issue.
Reasonable
perception of bias
[11]
The
Appeal Court (as it then was) in
BTR
Industries SA (Pty) Limited and Others v MAWU and Another
[16]
set out the relevant test to apply to a complaint of bias as follows:
‘
The
test to be adopted in recusal applications involving the appearance
of bias is whether there exists a reasonable suspicion of
bias on the
part of the decision maker. An apprehension of a real likelihood that
the decision maker will be biased is not a prerequisite
for
disqualifying bias. The very objects which the 'reasonable suspicion'
test are calculated to achieve would be frustrated by
grafting onto
it the further requirement that the probability of bias must be
foreseen. Provided that the suspicion of partiality
is one which
might reasonably be entertained by a lay litigant, a reviewing Court
cannot be called upon to measure in a nice balance
the precise extent
of the apparent risk. If suspicion is reasonably apprehended, then
that is an end to the matter’.
[17]
[12]
The
Labour Court in
Raswiswi
v CCMA and Others
[18]
considered
what the functions of a commissioner are in conducting an arbitration
hearing:
‘
[20]
In this instance, having regard to the transcript, I am satisfied
that there are enough examples to indicate that the manner
in which
the arbitrator approached the witnesses would create a justifiable
impression that he had a predisposition to assist the
employer in
putting its case and to challenge the applicant’s case. A
reasonable person in the position of the applicant
would have had a
strong factual basis to drawing this inference, and therefore for
having a reasonable apprehension of bias. The
question that remains
is whether the degree of license which arbitrators are allowed in
conducting proceedings in an inquisitorial
manner might nevertheless
mean that such an apprehension of bias should not be recognised as
legitimate.
[21] It is well
established that arbitrators performing statutory arbitration under
the LRA are entitled under the provisions of
section 138(1), to adopt
an inquisitorial approach to the conduct of proceedings and are not
confined to the adversarial practices
of the Magistrate and High
Court. In the words of the learned Stelzner AJ:
‘
[7]
…The basic standards of proper conduct to an arbitrator are
to be found in the
principles of natural justice, and in particular the obligation to
afford the parties a fair and unbiased hearing.
(See Baxter
Administrative Law at 536). These principles have been reinforced by
the constitutional imperatives regarding fair
administrative action.
(See Carephone Pty)
Ltd v Marcus N.O. (1998) 19 ILJ 1425 (LAC) at
1431 I –1432 H).
The core requirements of natural justice
are the need to hear both sides (audi alteram partem) and the
impartiality of the decision
maker (nemo iudex in sua causa) (see
Baxter at 536).
[8] It follows from the
above principles that a commissioner must conduct the proceedings
before him in a fair, consistent and even-handed
manner. This means
that he must not assist, or be seen to assist, one party to the
detriment of the other. Therefore, even though
a commissioner has the
power to conduct arbitration proceedings in a manner that the
commissioner considers appropriate in order
to determine the dispute
fairly and quickly under the provisions of section 138(1) of the Act,
this does not give him the power
to depart from the principles of
natural justice. Thus, further, although it clearly lies within the
commissioner’s powers
to decide whether to adopt an
inquisitorial or adversarial mode of fact finding, once this decision
has been made it ought to be
consistently applied to both parties.
[9] In Brassey et al
Commentary on the Labour Relations Act at
A7:49 the following
guidance with regard to the choice between forms of procedure is
provided:
‘
In
adversarial proceedings the litigation process is in the control of
the parties; the evidence that is adduced is that which the
parties
choose to present and the arbitrator operates rather like an umpire.
In inquisitorial proceedings the arbitrator plays
a more active role
in the hearing, calling witnesses and interrogating them in order to
ascertain the truth.… Where an arbitrator
adopts an
inquisitorial approach to the arbitration, she cannot abandon the
well-established rules of natural justice; on the contrary,
she must
be especially careful to guard against creating a suspicion of bias
in the breasts of litigants who will have little,
if any, experience
of a process so foreign to our system of adjudication. See
Mutual
and Federal Insurance Company Limited v CCMA and Others
[1997] 12
BLLR 1610
(LC) at 1619 – 20.’
[10] Where a commissioner
has adopted an adversarial approach, he or she should stand entirely
away from inquisitorial style questioning
of witnesses, leaving the
parties to adduce and test evidence as they see fit, alternatively,
if he or she wishes to descend into
the arena, this should be done in
a consistent manner so as to avoid giving rise to suspicion of bias.’
[22] The emphasised
portion of the extract above is particularly pertinent in this
matter. Both parties were represented in the
hearing and the
arbitration was conducted within the broad framework of adversarial
proceedings. That is not to say that the arbitrator
could not adopt
an inquisitorial approach in the interest of expedition or fairness,
but when intervening the arbitrator’s
approach must be
consistent.
[23] In this case, the
arbitrator’s approach was far from even-handed and there is
more than an adequate basis for believing
the arbitration was not
conducted in an impartial manner, giving rise to a reasonable
apprehension that he was more disposed to
the employer than the
employee. Consequently, the arbitrator committed misconduct in
relation to his duties by depriving the applicant
of a fair hearing’.
[13]
I am in agreement with my learned brother’s
exposition of the law. I also have no quarrel with the fact that
commissioners
may and should in certain circumstances adopt an
inquisitorial approach to the conduct of the proceedings. However,
the commissioner
must not be seen to assist one party to the
detriment of the other party. Where the commissioner decides to adopt
an inquisitorial
approach he or she must be careful not to descend
into the arena in such a way as to give rise to a suspicion of bias.
The commissioner
in this matter has, despite the fact that both
parties were legally represented, descended into the arena in a
manner that gave
rise to a suspicion of bias. I am persuaded in light
of the numerous examples pointed out to the Court that the
arbitrator, when
descending into the arena, elicited evidence from
witnesses which he deemed would be beneficial to Impala’s case
and that
he cross-questioned the applicant and the applicant’s
witness in such a manner that the evidence adduced evidence, likewise
which he deemed to be beneficial to Impala’s case. I do not
intend for purposes of this judgment to refer to the numerous
examples where the arbitrator extracted evidence which seemed to be
beneficial to the respondent’s case nor to the plethora
of
examples where the arbitrator descend into the arena and effectively
cross examined witnesses. Suffice to point out that I am
persuaded in
light of the numerous examples bought to the Court’s attention
that the commissioner inquisitorial interferences
gave rise to a
reasonable apprehension on the part of the applicant (a layperson)
that the commissioner was incapable of bringing
an objective mind to
bear on the matter, therefore having deprived the applicant of a fair
hearing in contravention of sections
23 and 34 of the Constitution
read with section 188 of the LRA. I am satisfied that the conduct of
the commissioner in conducting
this case may reasonably have created
an impression of bias. Consequently, this conduct on the part of the
commissioner rendered
the arbitration process fundamentally flawed.
[14]
In light of the aforegoing, the award
should be reviewed and set aside. I have decided to remit the award
back to the CCMA. Although
as already pointed out, this Court is as a
rule hesitant to remit a dispute back to the CCMA because of the
resultant delays, this
is unfortunately one of those cases where a
remittal cannot be avoided. The Court is simply, in light of the
manner in which the
arbitration was conducted not in a position to
substitute the award with an order of its own.
[15]
In the event the following order is made:
15.1 The rescission
application is dismissed.
15.2 The
arbitration award of the Second Respondent issued under case number
NW6634-07 is reviewed and set aside.
15.3 The matter is
remitted back to the CCMA to be arbitrated
de novo
by a
Commissioner other than the Second Respondent.
15.4
The Third Respondent to pay the costs of this application.
______________________________
AC Basson, J
Judge of the Labour
Court of South Africa
APPEARANCES
For the
applicant
: Advocate
M G Hitge
Instructed
by
: Stefan van Rensburg Attorneys
For the Third Respondent
: Advocate Tolmay
Instructed
by
: Edward Nathan Sonnenbergs Inc.
[1]
(2007) 28 ILJ 2405 (CC).
[2]
[2008]
8 BLLR 723 (LAC).
[3]
[2010]
1 BLLR 1 (SCA).
[4]
“
[22]
Pillemer was entitled to and in fact expected in the scheme of
things, to explore if there was evidence
by Edcon and/or on record
before her showing that dismissal was the appropriate sanction under
the circumstances. This was because
Edcon’s decision was
underpinned by its view that the trust relationship had been
destroyed. She could find no evidence
suggestive of the alleged
breakdown and specifically mention this as one of her reasons for
concluding that Reddy’s dismissal
was inappropriate. A reading
of the award further reveals that in addition to this finding
Pillemer also found that in the context
of that matter Reddy’s
long and unblemished track record was also an important
consideration in determining the appropriateness
of her dismissal.
[23
]
In my view, Pillemer’s finding that Edcon had led no evidence
showing the alleged breakdown in the trust relationship
is beyond
reproach. In the absence of evidence showing the damage Edcon
asserts in its trust relationship with Reddy, the decision
to
dismiss her was correctly found to be unfair. …”
[5]
[2013]
4 BLLR 378 (LC).
[6]
Court’s
emphasis.
[7]
[2013]
4 BLLR 378
(LC).
[8]
[2008]
3 BLLR 197 (LAC).
[9]
Schedule
8:Code of Good Practice
[10]
Act
66 of 1995
[11]
[2010]
11 BLLR 1216 (LC).
[12]
Court’s
emphasis.
[13]
Toyota
SA Manufacturing (Pty) Ltd v Radebe and others
[1998] 10 BLLR 1082
(LC): ‘ [18] However, these principles do
not dictate that mitigating circumstances such as taken into account
by the third
respondent, should not influence the result or sanction
that should be applied. In other words, dismissal is not knee-jerk
response
to all cases of dishonesty, without exception. This is
exactly what the third respondent illustrated in this matter. He
took
into account mitigating circumstances, presented on the
evidence before him, and he found that a sanction other than
dismissal
should be applicable in this matter’.
[14]
[2012]
4 BLLR 403(LC).
[15]
Court’s
emphasis.
[16]
(1992)
13 ILJ 803 (A).
[17]
Quoted
from the headnote.
[18]
(2011)
32 ILJ 2186 (LC).