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[2015] ZALCJHB 198
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Bafokeng Rasimone Platinum Mine (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR2296/12) [2015] ZALCJHB 198; (2015) 36 ILJ 3045 (LC) (8 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
Of
interest to other judges
Case
no: JR 2296/12
In
the matter between:
bafokeng
rasimone platinum mine (pty) ltd
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
First
Respondent
commissioner
mashooda patel (
n.O.
)
Second
Respondent
ryk
botha
Third
Respondent
Heard:
13 August 2014
Delivered:
8 July 2015
Summary:
(Review – failure to grant
postponement irregular – award reviewed and set aside –
Practice of augmenting case
on review in heads of argument or
additional affidavit dissaproved)
JUDGMENT
LAGRANGE,
J
Background
[1]
In this matter, the arbitrator found that
the dismissal of the third respondent Mr R Botha (‘Botha’)
was substantively
and procedurally unfair and reinstated him with
retrospective effect to the date of his dismissal. Botha had been
dismissed after
being found guilty of “bringing the company
into disrepute as company resources were used in an improper way”.
The
charges arose from the private use of Botha’s company email
address to send a couple of sexually explicit messages to a third
party who was not employed by the applicant. The email address bore
the company’s logo at the foot of the email. The applicant
seeks to review and set aside the application. An interlocutory
question which also needs to be determined is if a further affidavit
filed by the applicant more than four months after pleadings have
closed in which the applicant sought to introduce further grounds
of
review ought to be admitted as part of the pleadings.
The
applicant’s “additional affidavit”
[2]
Pleadings in the matter closed on 14
February 2013 when the applicant filed its replying affidavit two
months after Botha had filed
his answering affidavit. No condonation
was sought for the late filing of the replying affidavit, though the
third respondent did
not oppose this being granted. As no
identifiable prejudice was occasioned by this and as it adds little
to the applicant’s
case in any event, I am willing to condone
this. The applicant’s supplementary affidavit had been filed
together with the
record in early December 2012 more than five weeks
after the transcript had been finalised on 19 October that year.
Subsequently,
on 12 July 2013, some five months after the close of
pleadings, the applicant simply filed its “additional”
affidavit
in the matter. No proper application to file an additional
affidavit was made, though a motivated request for its inclusion was
contained in the affidavit itself.
[3]
The gist of the motivation was that it was
“crucial and necessary” to admit the further affidavit
because:
3.1
The submissions in the affidavits did not
relate to “new matters but factual matters that are really
contained in the record”
and which the applicant merely wished
to bring to the court’s attention.
3.2
These matters were nonetheless “crucial
and substantive” ones that should not be ignored in
determination of the issues
in the review application.
3.3
The court was obliged to ventilate “all
the issues in the matter in order to arrive at a just decision”,
which required
all the relevant issues to be placed before the court
for determination.
3.4
There would be no prejudice to the
respondents as the court ”will afford them the opportunity to
respond to the contents of
this affidavit”
3.5
the court was not bound by the approach
adopted by the parties’ representatives in the CCMA proceedings
if that meant that
the relevant facts and the real dispute between
the parties would be ignored., provided those facts appeared in the
record.
[4]
When the matter was argued it became
apparent that the issues that the applicant wished to raise in the
additional affidavit had
come to light after counsel had perused the
application. All the material on which the additional affidavit was
based was already
before the applicant’s attorneys by the time
the supplementary affidavit was filed. Review applications by their
nature give
the applicant party ample time to consider the merits of
its case before filing a supplementary affidavit. No reasons were
advanced
why the matters raised in the additional affidavit could not
have been raised in the supplementary affidavit. The fact that an
applicant subjects the record to more careful scrutiny after
pleadings have closed and discovers further points it could have
raised
previously but did not, does not amount to exceptional
circumstances justifying the reopening of the pleadings. The
applicant argued
that there would be no prejudice to the third
respondent, because the court would obviously grant him an
opportunity to respond
if the additional affidavit was admitted. On
this principle, an applicant could keep adding to its case
ad
nauseam
and a respondent party would
have to keep incurring further costs for each additional perusal of
the record required to consider
the new points raised as and when the
applicant deigned to reconsider its case. Insofar as the admission of
additional affidavits
is a matter of fairness to both parties, there
is nothing fair about allowing a party to add to its case in the
absence of a very
satisfactory explanation for the earlier omission.
[5]
Pleadings are intended, amongst other
things, to identify the nature and parameters of a dispute. Care must
be taken at the time
of drafting to ensure that the full ambit of a
party’s case is canvassed. In the case of the review
application an applicant
has the added advantage that a weak founding
affidavit can be completely replaced or augmented by a supplementary
affidavit. It
is at that point of the applicant’s preparation
of the application that it must focus its mind on the merits of its
case.
It should not regard the supplementary affidavit as merely a
preliminary exploration of issues to be more fully developed when
heads of argument are prepared. Still less should it consider the
supplementary affidavit as anything less than its final statement
of
its grounds of review. There may be exceptional circumstances where
issues come to light that a party exercising reasonable
diligence in
the preparation of their case could not have been aware of, or where
there is some other justifiable reason why a
material issue is
omitted. In this case no such reason has been provided to excuse
admissions from the applicant’s founding
papers. I see no
justification for the third respondent to be burdened months later
with having to consider answering further matters
that should have
been raised at the time the supplementary affidavit was filed.
[6]
Consequently, the additional affidavit
filed by the applicant should not be admitted.
The
award
Legal
Representation
[7]
The arbitrator decided to permit Botha
legal representation despite the opposition of the applicant, which
was represented by its
employment relations coordinator. The
arbitrator decided that the nature of the charge which entailed
bringing the employers’
name into disrepute was not a simple
matter like absenteeism and could give rise to a number of legal
issues. In turn this made
the matter potentially complex. She decided
that issues of public interest did not arise as a consideration. On
the question of
the comparative abilities of the parties the
arbitrator was satisfied that the employer representative was much
better equipped
in terms of his job and experience to deal with the
arbitration proceedings and that notwithstanding the seniority of
Botha and
some training in disciplinary enquiries, he had no
experience of actually conducting any and would not be able to match
the expertise
of the applicant’s representative, without legal
representation.
Postponement
Application
[8]
The applicant only led one witness and
requested a postponement of the matter after that witness’s
evidence was complete.
The missing witness was apparently
en
route
from Limpopo and advised the
applicant’s representative by sms that he was stuck in traffic
roadblock. When the applicant’s
representative attempted to
contact the witness again at around 10H30 the witness could not be
reached and he requested a postponement
of the matter so that a
subpoena
could be issued to secure the witness’s attendance. Botha
objected to the postponement because the matter had apparently
previously been postponed at the applicant’s request and he had
travelled from Koffiefontein, more than 7 hours away, to
attend the
hearing and would be prejudiced if it was postponed again. Botha’s
attorney argued that he had made arrangements
to
subpoena
his witnesses and the applicant ought to have done the same.
[9]
The arbitrator refused the application for
postponement after waiting for a further two hours for the elusive
witness to appear.
The arbitrator appears to have refused the
postponement on the basis that ample time was given for the witness
to arrive given
that the distance to be travelled to the arbitration
hearing was only 60 km and the prejudice to Botha of a further
postponement.
She also agreed with the applicant that the witness
could have been
subpoenaed
.
Although she did not say so in so many words, it appears that the
arbitrator was understandably sceptical about the explanation
that
the witness was stuck in traffic given his failure to appear after
four hours and the fact that he could not be contacted
again. Clearly
the arbitrator would not have mentioned the relevance of the witness
not being issued with a
subpoena
to attend the hearing if she did not believe that it was more likely
that the witness was reluctant to attend.
[10]
After refusing the application for
postponement, the applicant’s representative persisted with his
request for the matter
to be postponed and offered to tender the
wasted costs of the day and asked the Commissioner to hear him on
that issue. However,
the arbitrator was not sympathetic to
reconsidering her ruling in the light of this belated tender.
Substantive
Issues
[11]
In the course of the arbitrator’s summary of evidence, she
mentioned that:
11.1
there was evidence of private emails containing jokes sent by
employees to third parties who are not employees,
which were not
regarded as unacceptable use of company resources;
11.2
there was also evidence which the employer’s witness could not
dispute about a senior manager having been
found guilty of sending
email with pornographic content, who was given a final written
warning and of another employee who had
been found with pornographic
content on his computer, who was still employed by the applicant;
11.3
two other Managers testified that Botha’s conduct had no impact
on his work.
[12]
It should also be mentioned that during the course of
cross-examination of the applicant’s witness, Mr. Marais, when
he was pressed on the origin of the charge in the applicant’s
disciplinary code, he referred to the charge of: “Negligence.
Misuse of company property for private purposes” and conceded
that this did not deal with bringing the company into disrepute.
He
also agreed that there was no evidence that the company’s
reputation had been brought into disrepute but contended that
if the
emails in question had ended up in the wrong hands that would have
reflected negatively on the company. He also agreed that
in terms of
the code the offence of bringing the company’s name into
disrepute carried a recommended sanction of dismissal
or a final
written warning for a first offence depending on the nature and
circumstances of the case.
[13]
The arbitrator followed the guidelines for deciding the fairness of a
dismissal set out in the schedule 8 of the Labour Relations
Act, 66
of 1995 (‘ the LRA’). The arbitrator’s main
findings may be summarised as:
13.1
in the absence of stating the reason why the resources were
improperly used the charge was insufficiently detailed
for the third
respondent to prepare for the hearing;
13.2
because there was no evidence of an IT policy tendered during the
arbitration and as the employer conceded that
there was no written
rule regulating the conduct in question, the employer failed to prove
that there was a rule which existed
that prohibited employees from
sending private emails of a sexual nature using company resources;
13.3
there was no evidence to support a conclusion that the company’s
reputation had been brought into disrepute;
13.4
the employer had been lenient in relation to the transmission
of jokes by email which could also contain
content of a sexual
nature, which was difficult to distinguish from the conduct of the
third respondent as such communications
also amounted to the private
use of company resources;
13.5
the charge sheet did not indicate the reason for stating why
resources had been used improperly and accordingly
was too vague for
Botha to prepare for his enquiry.
[14]
Accordingly, the arbitrator concluded that the private use of the
company’s email resources was not prohibited, nor was
there any
rule prohibiting the improper use thereof and consequently no rule
that was broken and his dismissal for misconduct was
unfair. She also
concluded that his dismissal was procedurally unfair. The arbitrator
went on to consider that the third respondent
had a clean
disciplinary record and that there was evidence that the trust
relationship remained intact and decided that reinstatement
was
appropriate.
Grounds
of review
Alleged
bias on the part of the arbitrator
[15]
The applicant complains that the arbitrator failed to disclose “the
close friendship between her and the employee’s
legal
representative” at any stage before or during the arbitration
proceedings. Botha’s attorney confirmed that he
and the
Commissioner did not have a close friendship but merely knew each
other as colleagues in Rustenburg on a professional basis.
The
applicant seeks to attach some significance to the fact that the
arbitrator herself did not file an affidavit rebutting the
unsupported allegation of its own representative Mr Khonou impugning
her integrity. Mr Khonou provided no support or objective
basis for
his own belief or opinion which was baldly stated in his founding
affidavit in the following terms:
“
I
have also since ascertained that the Commissioner and the employee’s
legal representative of friends. The Commissioner failed
to disclose
this relationship to me before or during the arbitration
proceedings.”
[16]
It appears to me that the confirmatory affidavit of Botha’s
attorney of record was more than adequate in dealing with Mr Khonou’s
vague and unsupported allegation. It also would be somewhat
surprising if professionals in the labour law community of a town the
size of Rustenburg were not reasonably familiar, or even well
acquainted with each other, but without more such an association
does
not warrant a justifiable perception of bias requiring disclosure.
Adverse
cost award
[17]
The applicant also complains that the
arbitrator committed a reviewable irregularity in unreasonably
awarding Botha his costs on
the basis that it had been frivolous and
vexatious in defending the matter. The arbitrator did not in fact
find that the applicant
had been frivolous or vexatious in defending
the case, but found that the applicant had not acted in good faith in
the way it had
conducted the proceedings. In particular, the
arbitrator appears to have taken the view that the matter had been
postponed for
evidence to be led but the applicant had been remiss in
making sure that all its witnesses were in attendance and instead
made
submissions in argument which should have been the subject
matter of evidence.
[18]
I do have some difficulty in understanding
the arbitrator’s approach in this regard, but it is not
sufficient to indicate
a basis for a real apprehension of bias as the
applicant suggests. It would appear that the arbitrator awarded costs
against the
applicant not because Botha was forced to incur
additional costs, which he would have incurred if a postponement had
been granted,
but because the applicant did not ensure that it was in
a position to present all its evidence when the arbitration
reconvened
on the second occasion. On the face of it, in the absence
of any undue prejudice to Botha in the form of incurring unnecessary
legal costs, in circumstances where she was also reinstating Botha,
it is difficult to find that the arbitrator exercised their
discretion in a judicious manner when making a cost order against the
applicant. Consequently, I believe this part of her award
should be
set aside, quite independently of my overall finding.
Merits
of the award
[19]
The applicant contends that the
Commissioner decided Botha’s dismissal was substantively unfair
because he had been dismissed,
whereas two other employees he had
named had not been dismissed. However, it is not evident on the face
of the award that this
was the basis for the arbitrator’s
decision. Although the arbitrator recorded Botha’s evidence
about other employees
who had not been dismissed, the only comparison
she alluded to in her analysis was to the fact that there was
evidence of other
personal messages containing jokes being sent using
the applicant’s email, and that to her these seemed
indistinguishable
in principle from the type of message sent by
Botha. What she could not reconcile was why the applicant appeared to
regard such
emails as acceptable but found the sexual content of
Botha’s emails so objectionable. This informed her conclusion
that the
applicant had failed to prove the existence and
contravention of a rule by Botha. I agree therefore that the
arbitrator did not
base her finding of unfairness on the inconsistent
application of a rule about pornographic material on company
computers as such,
but her perception of inconsistency in relation to
the content of private emails on the company server was a significant
factor
in her thinking. Here the relevance of how the company
distinguished the relative seriousness with which it viewed the
content
of such emails is apparent and would have to have been
canvassed with the applicant’s missing witness if he had
testified.
[20]
The employer also claims that the
arbitrator failed to consider that Botha had shown no remorse during
the arbitration or disciplinary
proceedings in maintaining that he
had not contravened the applicant’s IT policy or brought its
name into disrepute. Had
the arbitrator considered these factors she
would have concluded that his dismissal was substantively fair. While
Botha did not
express remorse in these specific terms he had
expressed his regret at the disciplinary enquiry that he had used the
company resources
for a private matter but that he understood it was
not uncommon to do so at the mine. On the face of it, that is not
indicative
of a refusal to accept that it was inappropriate, but
simply a statement of what he believed at the time. On the evidence,
there
was also no reason why he ought to have expressed remorse for
bringing the company’s reputation into disrepute when there
was
no evidence that he had done so. No doubt this is an issue that the
applicant’s missing witness would also have been
compelled to
address in dealing with why it considered Botha’s conduct in
such a serious light, but in the light of the arbitrator’s
postponement ruling this was not canvassed.
[21]
Thirdly, the applicant claimed that the
arbitrator had adopted an overly technical approach in finding that
Botha’s dismissal
was procedurally unfair given his seniority,
and level of education. The applicant contended that it is
inconceivable that Botha
could not appreciate the substance of the
charge against him namely “that he had sent a pornographic
email to the third party
on the applicant’s server”. The
arbitrator’s conclusion that the charge was vague was not
unreasonable since
it is entirely lacking in any factual specificity.
However, Botha did not actually give any evidence as to how it
hampered his
defence. His defence was based on the fact that he
believed private emails were perfectly acceptable and he was not
aware how his
emails could have brought the company into disrepute.
Consequently there does not seem to have been any evidence to show
that he
had been hampered or hindered in his ability to respond to
the applicant’s case or to mount his own. In the circumstances,
I think it is fair to say that the arbitrator’s finding of
procedural unfairness was not warranted on the evidence before
her
and her finding in this regard should be set aside, irrespective of
my overall findings.
The
‘Refusal’ of Legal Representation
[22]
The applicant contended that it should have
been afforded legal representation after the arbitrator’s
ruling on this issue
and her failure to do so amounted to gross
irregularity in the conduct of the proceedings as contemplated in
section 145 (2) (a)
(ii) of the LRA.
[23]
Why the applicant makes this allegation is
a mystery. There is no indication on the face of the transcript that
it was refused legal
representation at any stage during the
proceedings after the arbitrator agreed that Botha could be legally
represented. It is true
that during his submissions the applicant’s
representative said that if Botha was afforded legal representation,
he would
like legal representation as well. However, when the
arbitrator handed down her ruling all she said was that she would
allow legal
representation in the matter. There was nothing to
suggest that she thereby sought to exclude the applicant from
bringing a legal
representative on the next occasion when the hearing
resumed a week later. If the applicant’s representative had any
cause
for being unclear about this, he made no attempt to clarify the
same with the arbitrator. Moreover, he had plenty of time to consider
his options between the date the ruling was made on 11 June 2012 and
when the arbitration hearing resumed on 19 July 2012. Consequently,
this ground appears to be without any factual basis.
The
Postponement Ruling
[24]
The applicant contends that the
Commissioner improperly refused the application for postponement
thereby preventing it from relying
on a material witness, Mr A Mbule,
who would have testified on the question of the inconsistent
application of discipline and the
alleged breakdown in the trust
relationship. The applicant sought to emphasise the importance of not
being able to lead evidence
to rebut the claim of inconsistent
treatment because the Commissioner had made a finding that discipline
had been inconsistently
applied. In elaborating on this ground of
review the applicant claimed that its witnesses would have shown that
it had not acted
inconsistently because Botha had disseminated
particularly offensive pornographic material (which was before the
arbitrator already),
that he had shown no remorse and that the
applicant viewed such conduct as a dismissible offence. It is true
that the applicant
had made an issue of other employees who had been
found with offensive pornographic material on their computers, but
had not been
dismissed. However, the arbitrator did not base her
finding of substantive unfairness on such claims. Accordingly, it is
arguable
that even if the employer’s missing witness had
testified in rebuttal of Botha’s claims of inconsistent
treatment,
this would not have materially affected the outcome of the
award, given the arbitrator’s non-reliance on Botha’s
claims
in this respect.
[25]
It is apparent from the transcript of the
proceedings that no attempt was made by the applicant’s
representative at the time
of requesting the postponement to explain
why it was important to lead the evidence of the further witness, nor
was his identity
mentioned. Thus, none of the motivation now provided
on review of the need to call an additional witness was placed before
the
arbitrator at the relevant time, even if motivation was
apparently provided later when the employer made its closing
submissions
at the arbitration. When Botha pointed this omission out
in his answering affidavit, the applicant then stated in its replying
affidavit that this had been conveyed to the Commissioner and Botha’s
legal representative during an adjournment in the proceedings,
which
seems somewhat improbable as it is an explanation offered only in
reply. The applicant contends that a vague reference by
the
arbitrator to the effect that he had advised the arbitrator that his
witness was not there and he was seeking a postponement
was proof
that this conversation had taken place. It may be that it indicates a
conversation took place, but not that he had motivated
why he needed
the witness during that conversation. In any event, the arbitrator
herself appears not to have made any effort to
enquire into the
relevance of his potential evidence.
[26]
In addition, it must also be said that the
explanation provided at the hearing for the failure of the witness to
attend involving
as it did an email based solely on an SMS message
received by the employer’s representative earlier in the
morning, with
a complete absence of communications thereafter and a
generous allowance of time being made for him to appear, raise a
number of
unanswered questions and doubts.
[27]
Can
it be said in the light of this that the applicant
denied the applicant party a full opportunity to have its say in
respect of the dispute?
[1]
The
main difficulty on the record is that in the absence of ascertaining
the nature of the evidence the witness was to give, the
arbitrator
could not reasonably evaluate the relative prejudice to the applicant
of the witness not testifying. Secondly, her reasoning
that the
applicant should have
subpoenaed
the witness and, in the absence of doing so, must suffer the
consequence thereof is difficult to understand given the limited
evidence before her at the time. At that time, there was evidence
that the witness had been
en
route
and had sent an SMS he had been detained at a roadblock. In other
words there was nothing on the evidence to suggest that the applicant
had not arranged for him to attend, or that it would have seen the
need to issue a
subpoena
as well, or even that a s
ubpoena
would have been any more likely to have ensured his attendance if an
event beyond his control had possibly prevented him arriving.
The
skepticism of the arbitrator about whether his non-appearance was
owing to a genuine reason or not, is understandable given
the lengthy
delay and the absence of further communication, but she ultimately
favoured speculation about the reason for his non-appearance
over the
limited information available to her. She also did not consider
whether the prejudice to Botha could not be balanced by
an
appropriate cost award, even when the applicant’s
representative offered to meet his costs,
albeit
that
this offer was made immediately after the ruling. It is a rudimentary
and basic consideration the arbitrator should have weighed
up in the
course of making her ruling.
[28]
Can
it be said that the failure to give the applicant a chance to lead
Mbule’s evidence defeated the constitutional imperative
that
the award must be rational and reasonable?
[2]
It is true that Mbule’s evidence in chief might have focussed
on trying to explain the apparent inconsistent treatment of
two other
employees who were not dismissed despite having pornographic content
on their computers, which one might reasonably assume
would also have
amounted to an improper private use of company resources. But he was
also going to testify on why the company believed
Botha’s
conduct was serious enough to warrant dismissal, which the
applicant’s first witness could not testify to.
Although it is
somewhat difficult to see how Mbuli would have been able to offer a
persuasive justification for the employer’s
stance in the light
of the rest of the evidence, it was certainly testimony that ought to
have been heard because it would have
been very relevant to the
outcome. It might also have raised issues the arbitrator did not
consider because it was excluded. For
example, Botha’s attorney
would have had to confront Mbuli with the more tolerant treatment
apparently afforded to some private
email material, which the
arbitrator had placed much emphasis on, and it would have been
important to get his response to that
as a supposed spokesperson on
company policy.
[29]
In the circumstances, I am not confident
the award can be said to be rational or reasonable given the failure
to provide an opportunity
to hear this evidence on account of
adopting the incorrect approach to handling the postponement
application.
Conclusions
[30]
In the circumstances, despite doubts about the applicant’s
ultimate prospects and despite the time which has elapsed,
the award
must be set aside to permit the additional evidence of Mbule and any
evidence in rebuttal thereof to be entertained.
Order
[31]
The second respondent’s arbitration award dated 2 August 2012
under case number NWRB882/12 is reviewed and set aside.
[32]
Within 30 calendar days of receipt of this judgment, the first
respondent must set down the matter for hearing before a commissioner
other than the second respondent to consider the matter afresh on the
basis of the record in the first arbitration hearing, including
the
emails referred to as B1, B2 and B3 on page 26 of the typed
transcript of the arbitration hearing, which were missing from
the
record placed before the court, and after hearing the evidence of Mr
A Mbuli and any evidence the second respondent may wish
to lead in
rebuttal thereof.
[33]
The applicant’s ‘additional affidavit’ filed on 12
July 2013 is not admitted as part of the record in the
review
proceedings.
[34]
The parties must pay their own costs in the review save that the
applicant must pay the third respondent’s costs of opposing
the
admission of the affidavit on an attorney own client scale.
_____________________
R
LAGRANGE, J
Judge
of the Labour Court
Appearances:
For
the Applicant:
P G Seleka and L Oken
Instructed
by:
Webber Wentzel
For
the Third Respondent: N Basson
Instructed
by:
Jacques Parsons Attorneys
[1]
See
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
(2014)
35
ILJ
943 (LAC)
,
at 950, para [20] where the LAC said,
inter
alia
,
:
“
The
questions to ask are these: (i) In terms of his or her duty to deal
with the matter with the minimum of legal formalities,
did the
process that the arbitrator employ give the parties a full
opportunity to have their say in respect of the dispute? (ii)
Did
the arbitrator identify the dispute he or she was required to
arbitrate? (This may in certain cases only become clear after
both
parties have led their evidence.) C (iii) Did the arbitrator
understand the nature of the dispute he or she was required
to
arbitrate? (iv) Did he or she deal with the substantial merits of
the dispute? (v) Is the arbitrator's decision one that another
decision maker could reasonably have arrived at based on the
evidence?”
[2]
See
Gold
Fields
at 950, para [21]