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[2015] ZALCJHB 48
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National Union of Metal Workers of South Africa and Another v Wainwright NO and Others (JR1060/10) [2015] ZALCJHB 48; (2015) 36 ILJ 2097 (LC) (24 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 1060/10
DATE: 24 FEBRUARY 2015
Reportable
In the matter between:
NATIONAL
UNION OF METAL WORKERS OF SOUTH AFRICA
.......................
First
Applicant
LUCKY
MHLUNGU
...................................................................................................
Second
Applicant
And
ALEC
WAINWRIGHT
N.O
........................................................................................
First
Respondent
METAL
AND ENGINEERING INDUSTRIES BARGAINING COUNCIL
......
Second
Respondent
AUTOMATIC
MASS PRODUCTION (PTY)
LTD
.................................................
Third
Respondent
Heard:
19 December 2014
Delivered:24
February 2015
Summary:
(Review Application - whether commissioner committed misconduct or
gross irregularities in arbitration proceedings - denial
of right to
representation and right to interpreter - denial of the right to an
unbiased and fair hearing)
JUDGMENT
VENTER,
AJ
Introduction
[1]
The application is to
review and set aside an arbitration award made by the first
respondent in his capacity as a commissioner of
the second
respondent, a bargaining council accredited by the Commission for
Conciliation, Mediation and Arbitration ("the
CCMA") in
terms of section 127 of the Labour Relations Act, 66 of 1995
[1]
("the LRA"). In terms of the award the first respondent
held that the dismissal of the second applicant ("Mhlungu")
was fair. The application has been brought in terms of section 145 of
the LRA.
[2]
There is also an
application to dismiss the review application on the ground of the
lengthy delay in the filing of the record. The
third respondent did
not pursue the application to dismiss and I will accordingly consider
the review application only.
Background facts
[3]
Two disputes were
referred to the second respondent, one being an unfair labour
practice dispute and the other an unfair dismissal
dispute. The two
disputes were consolidated in terms of a ruling of commissioner, Mr B
J Van Niekerk dated 3 June 2009 ("the
Consolidated Dispute").
[4]
The Consolidated
Dispute was set down for hearing before a commissioner other than the
second respondent on 25 August 2009. The
arbitration proceedings
were, on the request of the third respondent and thereafter by
agreement suspended and an attempt was made
to resolve the
Consolidated Dispute through conciliation. These attempts failed and
the arbitration of the Consolidated Dispute
was postponed.
[5]
The Consolidated
Dispute was thereafter set down before the first respondent on 1
December 2009. The arbitration proceedings were
again suspended
initially on the request of the third respondent and thereafter by
agreement (reluctantly from the applicants'
side) to attempt
settlement which was unsuccessful. The first respondent decided on
his own in absence of an application for a
postponement by either the
applicants or the third respondent not to continue with the
arbitration proceedings on the same day
and postponed the arbitration
to 19 January 2010. The first respondent directed the applicants and
the third respondent to attempt
to settle the Consolidated Dispute
outside of the arbitration process.
[6]
Due to a
miscommunication between the first and second respondents, the
arbitration did not proceed on 19 January 2010 and was set
down on 6
April 2010 at 8h30.
[7]
On 6 April 2010,
Mhlungu's representative from the first applicant, Tshabalala's car
broke down on the N3 motorway on his way to
the arbitration and at
7h50 that morning, he attempted to call the second respondent but no
one answered. He thereafter informed
Mhlungu of his predicament.
[8]
At 8h10 Tshabalala
phoned the second respondent and informed the receptionist, Monica
Taylor ("Taylor") that his car had
broken down and that he
was arranging alternative transport to attend at the arbitration
proceedings. He requested Taylor to inform
the first respondent of
his problem.
[9]
At 8h30 he informed
Mhlungu that he was still arranging alternative transport.
[10]
At 8h50 he again
contacted Taylor and asked to speak directly to the first respondent
as he wanted to personally convey the reason
for the delay to the
first respondent.
[11]
Taylor placed
Tshabalala on hold and after a while returned and informed Tshabalala
that the first respondent refused to take the
call as he was ‘not
there for phone calls but only for arbitrations’.
[12]
Tshabalala contacted
Mhlungu directly thereafter who informed him that the first
respondent ignored his appeals not to continue
the proceedings in the
absence of his representative and insisted that the arbitration would
continue.
[13]
Tshabalala arrived at
the second respondent's offices at approximately 9h45 and entered the
hearing room. The first respondent ignored
him and concluded the
process.
[14]
Jacob Xilongo
("Xilongo") of the first applicant personally advised the
first respondent on two occasions of Tshabalala's
predicament. On the
second occasion which was at approximately 8h43 the first respondent
told Xilongo that if Tshabalala did not
arrive in seven minutes time
he would continue the arbitration.
[15]
Xilongo also approached
Taylor who told Xilongo that the first respondent was aware of
Tshabalala's predicament and had refused
to speak to Tshabalala.
[16]
The facts set out in
paragraphs 4 to 8 above are common cause on the affidavits filed.
[17]
The facts in paragraphs
9 to 15 above were denied by the third respondent. One reason for the
denial was that the allegations were
hearsay in absence of
confirmatory affidavits by Xilongo, Mhlungu and Taylor.
[18]
I do not understand why
the third respondent raised this issue as confirmatory affidavits of
both Xilongo and Mhlungu were filed
together with the founding
affidavit of Tshabalala.
[2]
[19]
Another reason for the
denial is that the facts were not supported by the transcribed
record. In my view most of the facts save
for Tshabalala entering the
arbitration proceedings are supported by the transcribed record.
Grounds for review
[20]
The applicant's grounds
of review set out in the founding affidavit are that the first
respondent committed gross irregularities
in the conduct of the
arbitration proceedings and committed gross misconduct in
inter
alia
proceeding
with the arbitration proceedings in the absence of Mhlungu's
representative and in coming to a finding in absence of
Mhlungu's
version. The applicants list their complaints against the first
respondent's conduct in the founding affidavit which
I will not
repeat here.
[21]
In the supplementary
affidavit the applicants submit, in addition to the grounds of review
in the founding affidavit, that the motive
for the first respondent's
conduct was that he had another matter scheduled that same day and
had to conclude the arbitration proceedings
before this other matter
was to be heard.
[22]
In opposing the
application the third respondent denies that the first respondent
committed a reviewable irregularity and submits
that it is clear from
the transcript that Mhlungu was given an opportunity to state his
case and to have an interpreter assist
him. The third respondent
further submits that the
audi
alteram partem
rule
was complied with, however, Mhlungu refused to participate and in
doing so waived his right to be heard and must live with
this
stubborn decision in refusing to participate.
[23]
Mr Lengane who appeared
on behalf of the applicants argued that the first respondent in
conducting himself as he did denied Mhlungu
his fundamental right to
representation and by doing so denied Mhlungu a fair hearing. Mr
Lengane further argued that the first
respondent also did not deal
with the issues before him and that his award is bereft of reasons.
[24]
Ms Mthembu who appeared
on behalf of the third respondent submitted that there were two main
grounds of review, namely that the
first respondent refused a
postponement and came to a finding without listening to Mhlungu's
version.
[25]
In respect of the first
ground of review Ms Mthembu argued that the record clearly shows that
the first respondent waited 35 minutes,
he considered whether to
postpone the arbitration and decided against a postponement. In
exercising his discretion he took all
facts into account including
the fact that the arbitration had already been postponed 3 times and
refused the postponement. The
Third Respondent submits that the
refusal of the postponement was reasonable. Ms Mthembu further argued
that Mhlungu was given
an opportunity to state his case, however, he
refused to participate in the hearing and thus waived his right to be
heard.
The relevant test for review
[26]
The applicants' grounds
of review are that the first respondent committed misconduct in
relation to his duties as an arbitrator
and committed gross
irregularities in the conduct of the arbitration proceedings. These
two grounds are contained in sections 145(2)(a)(i)
and 145(2)(a)(ii)
of the LRA.
[27]
In
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[3]
,
the Labour Appeal Court considered the review test as enunciated by
the Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[4]
and held that:
'Nothing said in
Sidumo
means that the grounds of review in s
145 of the Act are obliterated. The Constitutional Court said that
they are suffused by reasonableness.
Nothing said in
Sidumo
means that the CCMA’s arbitration award can no longer be
reviewed on the grounds, for example, that the CCMA had no
jurisdiction
in a matter or any of the other grounds specified in s
145 of the Act. If the CCMA had no jurisdiction in a matter, the
question
of the reasonableness of its decision would not arise. Also
if the CCMA made a decision that exceeds its powers in the sense that
it is ultra vires its powers, the reasonableness or otherwise of its
decision cannot arise.'
[28]
The grounds of review
in section 145(2) have not been replaced by the Constitutional
Court's review test and are still relevant.
[5]
The reasonableness or not of the outcome is not relevant in
circumstances where the grounds of review relate to the conduct of
the commissioner during the arbitration proceedings. If it is
established that the commissioner misconducted himself or committed
a
gross irregularity in the conduct of the arbitration proceedings, the
award cannot stand regardless of the outcome.
[29]
The test to be applied
in cases where the grounds of review are misconduct or gross
irregularities by the commissioner in the conduct
of the proceedings
is to determine whether the misconduct or gross irregularity had the
effect of depriving the applicant of a
fair hearing.
[30]
This Court held in
Naraindath v
Commission for Conciliation, Mediation and Arbitration and Others
[6]
that:
'In
my view it is perfectly clear in these circumstances that a complaint
that a commissioner has conducted proceedings in a way
which differs
from the way in which the same dispute would be dealt with before a
court of law cannot as such succeed. It is only
where the person
seeking to challenge the commissioner's award can point to specific
unfairness arising from that action by the
commissioner that a proper
ground for review is established. A failure to conduct arbitration
proceedings in a fair manner, where
that has the effect that one of
the parties does not receive a fair hearing of their case, will
almost inevitably mean either that
the commissioner has committed
misconduct in relation to his or her duties as an arbitrator or that
the commissioner has committed
a gross irregularity in the conduct of
the arbitration proceedings. (See sections 145(2)(a)(i) and (ii) of
the LRA; McKenzie, The
Law of building and Engineering Contracts and
Arbitration, 5th ed. at 188-9).'
[31]
The test of review I
will accordingly apply will be to first determine whether or not the
first respondent committed misconduct
in relation to his duties as a
commissioner and/or committed a gross irregularity in the conduct of
the arbitration proceedings.
If I find that the first respondent did
misconduct himself or committed a gross irregularity, I will then
determine whether such
misconduct or gross irregularity had the
result of denying Mhlungu a fair hearing.
[7]
Conduct
expected of commissioners
[32]
Before considering the
question of whether or not the first respondent committed gross
irregularities in the conduct of the proceedings
and/or committed
misconduct, I will consider the standards of behaviour, values and
ethics which are expected of commissioners
of the CCMA and bargaining
councils. As it is a requirement for bargaining councils and the
commissioners who conduct dispute resolution
processes at the
bargaining councils to be accredited by the CCMA, I am of the view
that the CCMA's Mission and Vision Statement
and Code of Conduct for
Commissioners ("the Code") are applicable not only to the
commissioners of the CCMA but all commissioners
exercising their
functions as such in the CCMA and bargaining councils.
[33]
In terms of section
138(1) of the LRA, a commissioner may conduct the arbitration in a
manner the commissioner considers appropriate
in order to determine
the dispute fairly and quickly. The requirements of fairness and
expedition must be balanced so as not to
infringe or deprive any
party of their rights, the right to a fair hearing being paramount.
[34]
In
Country
Fair Foods (Pty) Ltd v Theron NO and Others
[8]
,
this Court held that section 138(1) does not give commissioners the
power to depart from the principles of natural justice.
[35]
One of the fundamental
rules of natural justice is that parties are to be given a fair
hearing during which the parties are given
an opportunity to present
their cases to the arbitrator. The parties are entitled to a fair and
unbiased hearing.
[36]
Commissioners are
expected in exercising their functions in terms of section 138(1) of
the LRA to uphold and promote the CCMA's
Vision and Mission
Statement.
[37]
The CCMA's Mission
states that:
'The
purpose of the CCMA is to promote social justice and economic
development in the world of work and to be the best dispute
management and dispute resolution organisation trusted by our social
partners.'
[38]
The principle of social
justice is a constitutional imperative
[9]
and features prominently in International Employment Law.
[39]
The Preamble to the
Constitution of the International Labour Organisation ("the
ILO") provides that:
'Whereas
universal and lasting peace can be established only if it is based
upon social justice.'
[40]
On 10 June 2008, the
ILO unanimously adopted the ILO Declaration on Social Justice for a
Fair Globalisation. This declaration is
a powerful affirmation of the
ILO's values and seeks to promote and achieve social justice through
the Decent Work Agenda.
[41]
The LRA and Basic
Conditions of Employment Act ("the BCEA")
[10]
both have as their purpose the advancement of economic development
and social justice.
[11]
[42]
Social justice is based
on treating all people equally with dignity and respect, the
advancement of human rights and access to opportunities
and justice
for all regardless of social or economic status.
[43]
In the South African
context, the concept of social justice is best described by the term
"
ubuntu
".
[44]
In S v Makwanyane
[12]
the Honourable Court Justice Mokgoro described "
ubuntu"
as follows:
'Generally,
ubuntu
translates as
humaneness
. In its most
fundamental sense, it translates as
personhood
and
morality
.
Metaphorically, it expresses itself in
umuntu ngumuntu ngabantu
,
describing the significance of group solidarity on survival issues so
central to the survival of communities. While it envelops
the key
values of group solidarity, compassion, respect, human dignity,
conformity to basic norms and collective unity, in its
fundamental
sense it denotes humanity and morality. Its spirit emphasises respect
for human dignity, marking a shift from confrontation
to
conciliation. In South Africa
ubuntu
has become a notion with
particular resonance in the building of a democracy. It is part of
our rainbow heritage, though it might
have operated and still
operates differently in diverse community settings. In the Western
cultural heritage, respect and the value
for life, manifested in the
all-embracing concepts of
humanity
and
menswaardigheid
are also highly priced. It is values like these that Section 35
requires to be promoted. They give meaning and texture to the
principles of a society based on freedom and equality.'
[45]
Social justice is
central to the CCMA's strategic goals. The CCMA's Siyaphambili
"
Moving
Forward
"
Strategy 2010 - 2015, which sets out the road map within which the
CCMA will execute its mandate over the period 2010 to
2015, has as
one of its strategic objectives the delivery of excellent service
rooted in social justice. One of the key performance
areas of this
objective is the removal of social justice blockages in the CCMA and
dispute resolution processes.
[46]
In the context of the
CCMA and bargaining councils social justice is achieved by treating
all the users equally with dignity and
respect and being accessible
to the public in a language of choice and in a non-intimidating
environment.
[47]
In promoting social
justice, commissioners should respect diversity, treat the employee
and employer parties appearing before them
equally and with respect
and dignity, should make them feel welcome, comfortable and not
intimidated, conduct themselves with integrity
and impartiality,
never appear irritated or impatient with a party and to assist the
parties in the process where necessary, particularly
where a party is
unrepresented. A commissioner should conduct him/herself in an even
handed, objective, courteous and fair manner
and should avoid the
display of favouritism or bias by either his words or his conduct.
[48]
In addition to
promoting social justice, when exercising their powers and functions
in terms of section 138(1) of the LRA, commissioners
of the CCMA and
bargaining councils are expected to exhibit certain values and ethics
and are expected to conduct not only the
arbitration proceedings but
also themselves with a high level of integrity.
[49]
In
Kasipersad
v CCMA and Others
[13]
,
the Honourable Justice Pillay set out some of the attributes of a
commissioner to be honesty, integrity, trust, fairness, impartiality,
general reliability, patience, persistence, self-controlled,
dignified, respectful, intelligent and sympathetic.
[50]
A commissioner is also
expected to uphold and promote the CCMA's values as set out in its
Vision and Mission Statement being integrity,
diversity,
transparency, excellence, accountability and respect.
[51]
The CCMA's Vision and Mission statement
describes these values as follows:
'
Integrity:
We are honest and ethical in everything that we do. We deliver on our
commitments. We are accountable and responsible
for our performance.
Diversity
:
We are a team of highly qualified individuals that is representative,
at all levels, of our country's diversity. Transparency:
We work in a
manner that is open and transparent, guided by our statutory
obligations and commitment. Excellence: We are committed
to
excellence. We continuously strive to deliver quality work. We always
seek to improve our processes, products and services to
better serve
the citizens of South Africa. Accountability: We constantly measure
ourselves against our commitments and we hold
ourselves responsible
for our actions and the outcomes of our work. We are committed to
each other and all we do. Respect: We value
differences in people and
ideas and we treat others with fairness, dignity and respect. We
foster a culture of trust, respect,
teamwork, communication,
creativity, equal opportunity, and empowerment.'
[52]
The purpose of the Code
is to assist commissioners in maintaining the good repute of the CCMA
and to provide guidance on matters
of professional conduct and
practice generally.
[53]
The Code sets out
general attributes expected of commissioners such as honesty,
impartiality and due diligence. In terms of the
Code commissioners
must conduct themselves in a manner that is fair to all parties and
to conduct proceedings in a fair, diligent
and even handed manner and
to be patient and courteous to the parties and their witnesses.
[54]
By conducting
themselves and the arbitration proceedings in the manner set out
above in accordance with the Code and the CCMA's
Vision and Mission
Statement, commissioners will promote social justice and as
ambassadors of the CCMA assist the CCMA in achieving
its Vision and
Mission Statement and strategic goals.
[55]
Commissioners should
conduct the proceedings and themselves bearing in mind at all times
that their conduct is on record and could
be scrutinized by this
Court in exercising its supervisory role over the functions of the
CCMA and bargaining councils should one
of the parties allege in a
review application that he/she has committed misconduct or a gross
irregularity.
[56]
As regards this Court's
supervisory function over the CCMA and bargaining councils, this
Court in
Pep Stores
(Pty) Ltd v Laka NO and Others
[14]
held as follows:
'As
found in a number of decisions of this court, this court has a
supervisory function over the commission. As part of this function,
this court should point out flaws in the commission for
rectification. A part of this supervisory function is to protect the
commission
from abuse and practices that could earn it disrespect and
ridicule.
It is
in the interest if this court to see the role played by the
commission in dispute resolution achieves the legislatives. It
is
only if the dispute resolution system provided within the Act
succeeds that it will engender respect and confidence. An important
policy consideration therefore is the maintenance of an effective
dispute resolution system underpinned by speed and finality.
As a
matter of policy this court, as supervisor of the commission, must
have some discretion to ensure that commissioners apply
consistent
and reasonable standards of justice. As a matter of policy this court
should be mindful not to over-supervise the commission
to such an
extent that it no longer has any discretion of its own. Commissioners
should be allowed latitude and flexibility to
apply the provisions of
the Act
.
'
[57]
In ZA One (Pty) Ltd t/a
Naartjie Clothing v Goldman NO and Others
[15]
the Honourable Court Justice Snyman AJ held as follows:
'The
Labour Court fulfils this supervisory function irrespective of what
the applicant party in the review application may raise
as grounds of
review. However, and to ensure that the policy consideration that the
Labour Court should be mindful not to over-supervise
the CCMA, as
said in the judgment in Pep Stores, is not negated, the labour Court
should only intervene in terms of its general
supervisory functions
if it is apparent from the record before the court that one of the
specific grounds as listed in a 145(2)(a)
of the LRA actually exists,
as the existence of any one of these three specific considerations
must surely be entirely incompatible
with any arbitration proceedings
that would be considered to be lawful, reasonable and procedurally
fair. As was said in
National Commissioners of the SA Police
Service v Myers & others
: 'It should be noted, however, that
the standard or review as formulated by the Constitutional Court in
Sidumo
does not replace the grounds of review contained in s
145(2) of the LRA. The grounds of review referred to in s 145(2)
still remain
relevant.' The very reason for intervention by the
Labour Court therefore would be to achieve the objectives of the
judgment in
Pep Stores, as quoted above, with which I respectfully
agree, where one or all of the grounds of review in s 145(2) are
found to
exist.'
Did the first respondent misconduct himself?
[58]
Having set out the
conduct which is expected of commissioners above, I will now
determine whether the first respondent misconducted
himself or
committed gross irregularities in the arbitration proceedings.
[59]
In
Country
Fair Foods (Pty) Ltd v Theron and Others
[16]
,
the Honourable
Justice Stelzner AJ held that:
'For
there to be misconduct, it has been held that there must be some
“wrongful or improper conduct” on the part of
the
decision-maker, in this instance the Commissioner. (See Dickinson &
Brown v Fisher’s Executors
1915 AD 166
at 176). Misconduct has
also been described as requiring some “personal turpitude”
on the part of the decision-maker.
(See Reunert Industries (Pty) Ltd
t/a Reutech Defence Industries v Naicker & others (1997) 18 ILJ
1393 (LC) at 1395H-I.) The
basic standards of proper conduct for 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 NO (1998)
19 ILJ 1425 (LAC) at 1431I-1432A.) 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 (supra) at 536.).'
[60]
It is common cause that
Tshabalala's car broke down on the N3 motorway on the way to the
arbitration proceedings on 6 April 2010.
[17]
[61]
As the events which
transpired thereafter are disputed, I will consider the question of
whether the first respondent committed misconduct
or gross
irregularities in the conduct of the arbitration proceedings by
reference to the transcript.
[62]
The transcript speaks
for itself and I will quote from the transcript extensively.
[63]
The arbitration award
paints a very different picture to the transcript. In the award
Mhlungu is made out to be someone who was
obstructive, who refused to
answer questions, was proficient in English, ill-considered and
"obdurate" and whose request
for an interpreter was
insincere. The first respondent records in the award that he warned
Mhlungu about the serious consequences
of refusing to participate in
his own defence. The first respondent further states that Mhlungu
should not have waited for a "very
advanced stage of the
proceedings" to request an interpreter and whilst ‘English
may not be his first language the applicant
was certainly proficient
in English’. The First respondent further concludes that the
third respondent would suffer financial
and other prejudice if the
matter were to have been postponed yet again.
[64]
It appears from the
record that the arbitration was scheduled for 08h30 and the first
respondent waited 35 minutes and then decided
to commence the
arbitration proceedings in the absence of Mhlungu's representative.
[65]
It further appears that
the first respondent did not welcome the parties, did not give the
parties the opportunity to introduce
themselves, did not explain the
process that would be followed, did not ascertain whether Mhlungu,
who as a result of his refusal
to adjourn was unrepresented, would
require an interpreter, did not give the parties an opportunity to
submit opening statements,
did not attempt to narrow the issues in
dispute and did not explain the different phases of evidence, the
importance of cross examination
and testing of versions.
[66]
The first respondent
was in such a rush to commence the proceedings he almost administered
the oath to the wrong person, the third
respondent's representative.
'Commissioner:
Okay do you have any objection to taking the oath?
Respondent's
representative: It's not myself who's going to testify but the
company witness sitting next to me.'
[18]
[67]
The third respondent's
witness, Peter Hayer ("Hayer") was sworn in and only asked
two questions when the arbitration proceedings
were interrupted.
'Lady:….(Inaudible).
Commissioner:
Yes.
Lady:
I've got representative.
Commissioner:
The arbitration was due to start at 8.30 it's now 9:08 the
arbitration has started. I'm proceeding.
Lady:
…(Inaudible)
Commissioner:
He can come in but he is coming in late.
Lady:
No he's on the phone.
Commissioner:
Oh he's on the phone well what am I supposed to do I'm holding the
arbitration must I go to the phone? I'm taking
a sworn statement on
the tape recorder I'm not going to the phone and that I've placed on
record.'
[19]
[68]
Without any further
hesitation, the first respondent continued with the arbitration
proceedings and the examination in chief of
Hayer.
[69]
A few questions later
the first respondent interrupts Hayer's examination in chief to make
a suggestion:
'Commissioner:
Can I make a suggestion?
Respondent's
representative: Okay.
Commissioner:
This is a dismissal related to misconduct I have another arbitration
afterwards. I don’t want to cut your case
short but the point
that you need make here is that his job was to check and record
faults and if you allege that he didn’t
record the faults then
say so.
Mr
Peter Hayer: Okay.
Respondent's
representative: Ja…. (rest inaudible)
Commissioner:
Because I had unfortunately this matter has started late it is now
9:11 I've got another arbitration I don’t
want to prejudice
your case but I suggest we could hasten the process without justice
being compromised.
Respondent's
representative: Hundred percent.
Commissioner:
Only because I have another arbitration immediately hereafter I
didn’t schedule the next arbitration so close
to the first
one.'
[20]
[70]
A little while after
this initial interruption and as the third respondent's
representative was not moving at the pace he wanted
the first
respondent again interrupts the examination in chief of Hayer to make
another suggestion.
'Commissioner:
Can I make a suggestion?
Respondent's
representative: Ja.
Commissioner:
You know a lot of unions try and present a case by leading a witness
to give evidence and it's a very laborious process
for someone like
myself as the arbitrator to try and work out where you're going I
think what you need to do is to make an opening
statement where you
set out this matter relates to obviously in this instance a refusal
to carry out instructions there were disciplinary
enquiries or
whatever it is in other words give me a paragraph that I can, a
summation of this matter so that I can understand
where we're going
because it's becoming a very laborious process and trying to follow
it and it's very difficult, can you not make
an opening statement
where you…(inaudible) and concisely?'
[21]
[71]
The third respondent's
representative then during the evidence in chief of Hayer which had
been interrupted now for the second time
makes an opening statement
on the suggestion of the first respondent.
[22]
Hayer thereafter finishes his examination in chief.
[72]
Instead of assisting
and explaining the next step of cross examination to Mhlungu, the
first respondent attempts to narrow the issues
and directs a question
to Mhlungu who then pleads with the first respondent not to continue
until his representative has arrived.
[23]
[73]
The transcript clearly
shows the first respondent's agitation and irritation with Mhlungu
and I will accordingly quote the exchange
that followed between
Mhlungu and the first respondent.
'Commissioner:
So let me just get some factors that are common cause here, Mr.
Mhlungu when did you start work there?
Applicant:
Mr. Commissioner before I answer your question …
(interrupted).
Commissioner:
Mr. Mhlungu when did you start work at the company please answer my
question?
Applicant:
Mr. Commissioner before I answer your question I'm asking you …
(interrupted).
Commissioner:
Mr. Mhlungu please answer my question when did you start working at
the company please answer my question?
Applicant:
I'm requesting Mr. Commissioner … (interrupted).
Commissioner:
Right … (rest inaudible).
Applicant:
… (inaudible).
Commissioner:
Company when did he start working at the … (inaudible).
Applicant:
This case is … (rest inaudible)… (interrupted).
Respondent
representative: …(inaudible).
Mr
Peter Hayer: … (inaudible) because without my representative
….(rest inaudible).
Commissioner:
So Mr. Mhlungu?
Applicant:
My representative phone to the reception before and then you never
and then also request you and appeal to you to not
continue with this
case because my representative has phoned to the reception to say
that there is a problem in the traffic and
then you said you'll
continue with the case and then you didn’t even give me the
chance to explain, if then my representative
phoned you and you never
went to the phone to understand or to hear what my representative
…(rest inaudible) so my appeal
is to say I'm sorry I can't
even answer your question because I don’t even understand
English properly and you never gave
me the chance and then you never
gave me the chance to explain and then instead you continued and to
the register I never signed
because before we start I tried to
explain to you and you never gave me a chance and it seems as if you
are harsh to me and then
that's why I'm here but even the case is
proceeding I don’t even understand what they're saying but you
continue with the
case.
Commissioner:
Right I … (interrupted).
Applicant:
So … (rest inaudible).
Commissioner:
Can I answer you?
Applicant:
That's why I say that so that we can put this in the record and then
… (rest inaudible) … (interrupted).
Commissioner:
… (inaudible) it is in.
Applicant:
… (inaudible) and it would be in the union to challenge.
Commissioner:
Fair enough.
Applicant:
That's why … (rest inaudible).
Commissioner:
Let me place this to you Mr. Mhlungu the record here says the
language here today in this arbitration is English you
do understand
a reasonable amount of English I asked you a simple question when did
you start working at the company you refused
to answer me. You have
made the point that your union representative has a problem I quote
you directly, "a problem with the
traffic", this
arbitration was due to start at 8:30 it is now 9:40 you union
representative with his problem with the traffic
which is a problem
that all of us face every single one of us faces this problem but I
got up at 4:30 to take an arbitration award
to the CCMA this morning
so that I would be here by 8 o'clock to read the file and prepare for
this matter. It is now 9:40 your
union still has not been here your
file is redolent with postponements and postponement and
postponements the Bargaining Council
simply cannot keep postponing
because your union official is late in the traffic the matter must
proceed and it must reach finality.
Now I'm going to repeat thus yet
again because I've said it to you before the tape recorder was on the
company has to show that
there was a fair dismissal they have to show
that the dismissal was in terms of a fair procedure and it was for a
fair reason.
You have a chance to respond you have already indicated
to me that you refuse to participate in your defence and if you
refuse
to participate in your defence then I only have one version to
listen and that is the version of the union …(presumably
Commissioner meant the company) would you now like to give me your
statement Mr. Mhlungu?
Applicant:
Mr. Commissioner I'm repeating again I can't even respond as I'm
saying you didn’t give me even to say to you that
I am
requesting not to continue or not to proceed with this matter.
Commissioner:
This matter is proceeding Mr. Mhlungu.'
[24]
[74]
At this point Mhlungu
raises his right to an interpreter and again pleads with the first
respondent not to continue in absence of
his representative.
'Applicant: Because it's my right to get a representative and it's my
right to get an interpreter.
Commissioner: Do you want an interpreter … (rest inaudible) I
hear you want an interpreter?
Applicant: You didn't give me the chance to explain that …
(rest inaudible) … (interrupted).
Commissioner: … (Inaudible) … (Speaking simultaneously)
… (Rest inaudible) says that the language is in English
do you
want an interpreter?
Applicant: I want to put this on record.
Commissioner: What language do you want Mr Mhlungu what language do
you want?
Applicant: My representative is not here.
Commissioner: I've already noted that.
Applicant: My representative … (rest inaudible).
Commissioner: He's got a problem with the traffic I am not waiting
for his problem with the traffic it is now 9:45 ….
(Interrupted).
Applicant: You said …. (Rest inaudible) …
(Interrupted).
Commissioner: Do you want an interpreter what language do you want Mr
Mhlungu what language do you want an interpreter for? Mr
Mhlungu if
you're not going to answer me I must proceed on the basis that you
are not participating in your own defence.
Applicant: And then I explained why I don't … (rest inaudible)
… (interrupted).
Commissioner: Don't you want an interpreter?
Applicant: It's my right to get the representative.
Commissioner: … (Inaudible) … (Interrupted).
Applicant: I am appealing to you … (rest inaudible) before you
start this.
Commissioner: But he has already not before I start it is already
well into the proceeding the company has almost finished the
presentation of its case I certainly hope so.
Applicant: So it's up to you?
Commissioner: It is up to me I'm telling you the matter was meant to
start at 8:30 it is now 9:45 if your union has a problem with
the
traffic he can still walk in, he hasn't walked in now asking you to
present your case, you tell me that I must not proceed
because there
was a problem with the traffic. Well I'm afraid that is not good
enough the matter will proceed traffic or no traffic
we all had to
fight the traffic to get here, now I want to ask you for the final
time do you or don't you want an interpreter?
I record there is no
response, secondly do you want to answer the question when did you
start working at the company?
Applicant: Mr Commissioner I repeat again and to say that my appeal
is to not continue with is to not proceed because there is
no
representative that's what I'm asking you.
Commissioner: Right … (interrupted).
Applicant: ….. (Inaudible).
Commissioner: Now my finding on that matter is that your
representative was aware of this matter today you were aware that he
was aware of it you were here, he was aware of it because he even
says that he had a problem with the traffic the matter is proceeding,
the matter is proceeding justice is not going to be denied because
somebody has a problem with the traffic. You have a right to
state
your case this matter has been postponed the file is thick with
postponements and more postponements, the matter proceeds.
Would you
like to state your case?
Applicant: Well Commissioner I'm saying I'm not willing to continue
with this case without my ….. (Rest inaudible).
Commissioner: Right you may please continue with …. (Rest
inaudible). …. (Interrupted).
Applicant: Without my representative.
Commissioner:
Okay well then your case I must advise you will stand or fall on the
stance that you have I'm now giving you a final
chance to state your
version and to answer questions are you going to state your version
or are you not? Right I get no response,
could you summarise your
closing statements if you're finished with your witness?'
[25]
[75]
The third respondent's
representative presented closing arguments and the arbitration
proceedings were thereafter concluded.
[76]
It is clear from the
transcript that the first respondent was aggravated by the fact that
Tshabalala had a problem with his car
and had not arrived on time.
The first respondent was irritated and extremely impatient not only
with Mhlungu but also the representative
of the third respondent and
Hayer. The first respondent was rude and abrasive. In my view the
first respondent's conduct was unprofessional,
unacceptable and
disrespectful to both Mhlungu and the third respondent.
[77]
The first respondent
not only failed in most if not all his duties as a commissioner
arbitrating a dispute, but also simply ignored
the overriding
principles of social justice and fairness, the very principles which
should drive the process and which should be
the benchmark for the
conduct expected of commissioners in their capacities as arbitrators.
[78]
The first respondent
first and foremost failed to create a non-hostile, welcoming
environment where Mhlungu, who was placed in a
difficult position due
to his representative being late, was made to feel comfortable. To
the contrary the first respondent's agitation,
irritation, abrasive
manner and rudeness created a hostile and intimidating environment
for Mhlungu.
[79]
The first respondent
failed in establishing up front before proceeding with the process
whether Mhlungu required an interpreter.
The fact that Mhlungu
required an interpreter only came to his knowledge when Mhlungu told
him so late in the process and after
Hayer had led his evidence. The
request for an interpreter appeared to irritate the first respondent
further. This failure by the
first respondent was an infringement of
Mhlungu's fundamental right to be assisted in a language of his
choice and is in my view
so serious that it alone renders the award
reviewable. The fact that Mhlungu was "proficient in English"
is in my view
irrelevant as Mhlungu had the right to have the
arbitration proceedings interpreted into a language of his choice.
The first respondent
in his award appears to have the view that the
duty to request an interpreter was on Mhlungu. This can never be a
duty on an unrepresented
party. The first respondent who was in
control of the proceedings had the duty to inform Mhlungu, an
unrepresented party, of his
right to an interpreter and should have
done so before the arbitration proceedings commenced.
[80]
The first respondent
failed to explain the process of arbitration to Mhlungu. I accept
that the first respondent had no duty to
explain the process to the
third respondent's representative as she was familiar with the
process being from an employers' organisation.
He, however, had a
duty to Mhlungu who was unrepresented, not by choice but by the first
respondent's refusal to adjourn the proceedings
beyond the 30 minutes
grace period generally practiced by commissioners, to explain the
process and provide guidance to Mhlungu.
The first respondent failed
dismally in this duty.
[81]
The first respondent
thereafter failed in his duty to allow the parties to give opening
statements and to narrow the issues in dispute
before proceeding to
listen to evidence. Had he done so, he would have realised that the
dispute before him was not only an unfair
dismissal dispute but in
fact the Consolidated Dispute. This omission by the first respondent
resulted in the first respondent
not dealing with the real issues
before him. The first respondent in his haste to conclude the
arbitration failed to deal at all
with the unfair labour practice
dispute. This in my view is a gross irregularity which in itself
renders the award reviewable.
The first respondent failed to give
Mhlungu any hearing on his unfair labour practice dispute.
[82]
Opening statements by
parties and the narrowing of issues by commissioners prior to the
commencement of the arbitration proceedings
are not necessarily
requirements of a fair hearing and a failure to do so will not
necessarily render the award open to review.
The purpose of opening
statements and narrowing of the issues is for the commissioner to
grasp the nature of the dispute and the
real issues before him which
in turn places the commissioner in a position to shorten the
proceedings by limiting the evidence
to relevant issues.
[83]
The first respondent
attempted, at an inappropriate time in the arbitration proceedings
during Hayer's evidence in chief and in
an attempt to speed the
process up, to elicit an opening statement out of the third
respondent's representative. The first respondent
ignores Mhlungu and
does not afford him the same opportunity. The first respondent only
after the third respondent had concluded
its case, attempted to
narrow issues all in his haste to conclude the arbitration in the
quickest time possible. This is in my
view gross irregularities in
the conduct of the arbitration proceedings.
[84]
The Honourable Justice
Pillay in
Char
Technology (Pty) Ltd v Peter Mnisi and Others
[26]
had the following to say on the issue of a commissioner's duties in
arbitration proceedings:
'Commissioners of the CCMA are instructed during their training to
conduct arbitration proceedings. They are aware, therefore,
that
after they introduce themselves to the parties at an arbitration they
should outline the process to them. The detail of the
outline will
depend on the level of experience of the parties. The commissioner
should, therefore, ascertain the experience of
the parties at the
outset. In their training arbitrators are briefed to ensure
that the parties are aware
inter alia
of the format of
the proceedings and of their rights to call and cross-examine
witnesses. The commissioners should also be make
the parties aware of
the consequences of their failure to do and ensure that they are
aware of how documentary evidence should
be dealt with. Lay
people often assume that documents are automatically admissible as
evidence of the truth of their contents.
By making these introductory
remarks, the commissioner absolves himself or herself from
intervening or failing to intervene in
the course of the arbitration
to remind the parties of their obligations. If such
intervention is made when the proceedings
are under way it could lead
to the commissioner being perceived as favouring one or other party.
If commissioners approach arbitrations by complying with these
instructions of their training they cannot be faulted if, thereafter,
a party fails to present its case properly. It is a matter of great
concern to this court that some commissioners continue to disregard
the instructions they receive during their training. Whilst it is
acknowledged that many commissioners carry a heavy workload,
the cost
of not abiding by basic rules of arbitration are far greater to all
concerned, including the CCMA, than the cost of taking
sufficient
care to do the job properly the first time round.'
[85]
In
Solomon
v CCMA and Others
[27]
Stelzner AJ held
that:
'Many
if not most parties appeared before the CCMA on an unrepresented
basis. In my view it is both necessary and desirable that
CCMA
commissioners make an effort with the parties to identify and narrow
the issues in dispute...'
[86]
This brings me to the
first respondent's stubborn refusal to adjourn the arbitration beyond
35 minutes to give Mhlungu's representative
whose car had broken down
an opportunity to make alternative arrangements for transport to the
offices of the second respondent.
[87]
I disagree with Ms
Mthembu that the first respondent considered the facts when
exercising his discretion in refusing the postponement.
There was no
application for a postponement before him only a request by Mhlungu
for a further indulgence beyond the 30 minutes
and an adjournment in
order for his representative whose car had broken down to get to the
arbitration proceedings. It does not
appear at all from the record
that the first respondent actually considered and applied his mind to
Mhlungu's request for an adjournment.
In fact the contrary is
apparent. The first respondent in a rush to conclude the arbitration
was not willing and prepared to grant
Mhlungu an audience.
[88]
Commissioners are
required to assist unrepresented and laypersons where it is apparent
that such person needs assistance with one
proviso that the
assistance or intervention by the commissioner should not lead to
perception of bias or amount to advancing of
the case of one of the
parties.
[89]
The first respondent in
refusing the adjournment and by proceeding in the absence of
Mhlungu's representative was obliged to assist
Mhlungu with the
procedural aspects of the arbitration proceedings.
[90]
He failed in this duty
and in fact intervened at inappropriate times during Hayer's
examination in chief to make suggestions to
the third respondent's
representative on how to present her case, all in his attempt to
shorten the proceedings. This intervention
of the first respondent in
my view created a perception of bias and favouritism towards the
third respondent. The statement in
the award that a further
postponement would result in the third respondent suffering financial
and other prejudice is in my view
an indication of bias on his part.
What about the prejudice Mhlungu would suffer should the arbitration
proceed without his representative
and in a language he does not
fully understand. The first respondent did not consider these aspects
at all, his only focus being
the matter scheduled after the
arbitration and the shortening of the proceedings.
[91]
I agree with the
applicants that the first respondent's motive for rushing was the
fact that he had another matter scheduled and
wanted to conclude the
arbitration before this other matter. The first respondent appears to
blame the second respondent for this
scheduling and the reason why he
has to shorten the proceedings, "cut" Hayer's evidence
"short" and "
hasten the process".
[92]
A commissioner should
never use the fact that another matter has been scheduled on the same
day as an excuse to shorten proceedings.
All the first respondent had
to do was to inform case management that the arbitration was running
and that he would not be able
to deal with the other matter scheduled
later that day. The second respondent would in these circumstances be
required to allocate
the other matter to another commissioner in
order for the first respondent to conclude the arbitration in a fair
manner to both
parties.
[93]
I do not agree with Ms
Mthembu that Mhlungu in refusing to participate waived his right to
be heard. Mhlungu's refusal to participate
must be seen in the
context of the denial by the first respondent of Mhlungu's right to
have his representative present and to
have the proceedings
interpreted into a language of his choice. These are two rights so
fundamental to a fair hearing. The first
respondent denied Mhlungu
his right to be heard, before Mhlungu refused to participate.
[94]
In order to be valid a
waiver of a right must
inter
alia
be clear and
unequivocal and must be made freely and voluntarily. There is nothing
in the record from which it can be concluded
that Mhlungu had any
intention to waive his rights to representation and an interpreter
and did so freely and voluntarily.
[28]
The record in fact establishes the contrary and that is that the
first respondent did not give Mhlungu the opportunity to exercise
these rights. The mere fact that Mhlungu after being denied his right
to his representative and an interpreter refuses to participate
further in the proceedings cannot in my view constitute an
unequivocal waiver of his right to be heard. To argue that Mhlungu
waived his right to a fair hearing in these circumstances is
unconvincing.
[95]
The first respondent's
conduct during the course of the arbitration proceedings denied
Mhlungu a fair and unbiased hearing, which
rendered the award
reviewable. In the circumstances, I do not believe it necessary to
consider the issue of whether the first respondent's
finding that
Mhlungu's dismissal was fair was a finding a reasonable decision
maker would have arrived at on the evidence before
him.
Conclusion
[96]
For the reasons
mentioned above, I am of the view that the first respondent committed
gross irregularities in the conduct of the
arbitration proceedings
and committed misconduct which denied Mhlungu his right to a fair
hearing.
[97]
I see no reason why
costs should not follow the successful party
[98]
Accordingly I make the
following order:
98.1
The arbitration award
of the first respondent under case number MEGA 24159 dated 6 April
2010 is reviewed and set aside.
98.2
The Consolidated
Dispute is remitted back to the second respondent for a hearing
de
novo
before
commissioner other than the first respondent.
98.3
The third respondent is
ordered to pay the costs of this application.
Venter
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
Applicant: Advocate L Lengane
Instructed
by: Phungo Incorporated
For
Respondent: Advocate N Mthembu
Instructed
by: Du Plessis de Villiers
[1]
Act 66 of 1995, as amended.
[2]
Pages 29 to 32 of pleadings.
[3]
(2008) 29
ILJ
964 (LAC) at para 101..
[4]
(2007) 28
ILJ
2405 (CC).
[5]
See
National Commissioner of the
SA Police Service v Myers and Others
(2012)
33
ILJ
1417 (LAC).
[6]
(2000) 21
ILJ
1151 (LC) at para 27.
[7]
See Bauer Research CC v Commission for Conciliation,
Mediation and Arbitration and Others (2014) 35
ILJ
1528 (LC).
[8]
(2000) 21
ILJ
2649 (LC) at para 8.
[9]
The Preamble to Constitution of the Republic of South
Africa provides that: "
We,
the people of South Africa, Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our
land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in
it, united in
our diversity. We therefore, through our freely elected
representatives, adopt this Constitution as the supreme
law of the
Republic so as to Heal the divisions of the past and establish a
society based on democratic values, social justice
and fundamental
human rights; Lay the foundations for a democratic and open society
in which government is based on the will
of the people and every
citizen is equally protected by law; Improve the quality of life of
all citizens and free the potential
of each person; and Build a
united and democratic South Africa able to take its rightful place
as a sovereign state in the family
of nations. May God protect our
people. Nkosi Sikelel' iAfrika. Morena boloka setjhaba sa heso. God
seën Suid-Afrika. God
bless South Africa. Mudzimu fhatutshedza
Afurika. Hosi katekisa Afrika."
[10]
Act 75 of 1997, as amended.
[11]
See Section 1 of the LRA and Section 2 of the BCEA.
[12]
[1995] ZACC 3
;
1995 (3) SA 391
(CC) at para 308
[1995] ZACC 3
; ,
1995 (6) BCLR 665
(CC
)
[1995] ZACC 3
; ,
1995 (2) SACR 1
(CC ).
[13]
(2003) 2 BLLR 187
(LC) at para 27.
[14]
(1998) 19
ILJ
1534 (LC) at paras 23 to 25.
[15]
(2013) 34
ILJ
2347 (LC) at para 38.
[16]
Supra at para 7.
[17]
Para 9.9 of founding affidavit and para 11 of answering
affidavit.
[18]
Page 51 of the transcript.
[19]
Page 52 of the transcript.
[20]
Pages 53 and 54 of the transcript.
[21]
Page 58 of the transcript.
[22]
Pages 59 - 62 of the transcript.
[23]
Page 67 of the transcript
[24]
Pages 69 - 71 of the transcript.
[25]
Pages 71 to 74 of the transcript
[26]
Case J1038/99 at paras 1-2
.
[27]
(1999) JOL 5297
(LC) at para 18.
[28]
See Moyo v Execujet (2012) 33
ILJ
429 (LC).