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[2015] ZALCJHB 217
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Henric Ferrochrome (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR1802/12) [2015] ZALCJHB 217 (22 July 2015)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 1802/12
HERNIC
FERROCHROME (PTY) LTD
Applicant
And
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
PAUL
BOTHA
N.O.
JOCOBUS
HENDRCK DANIEL LUIES
First
Respondent
Second
Respondent
Third
Respondent
Heard:
13 June 2014
Delivered:
22 July 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This
is an opposed review application as well as an application by the
third respondent (Luies) for condonation for the late filing
of his
answering affidavit. Luies was dismissed by the applicant on 5 March
2012. A dispute was thereafter referred to the first
respondent
(CCMA) under case number GATW3537-12, and came before the second
respondent (the Commissioner) for arbitration. The
Commissioner
issued an award on 18 July 2012 in terms of which it was found that
the Luies’ dismissal was procedurally and
substantively unfair.
The Commissioner ordered that the Luies be retrospectively
reinstated, and also be paid an amount of R521
658.15 as back pay.
Background:
[2]
The
applicant produces ferrochrome and operates in the North West
Province. Prior to his dismissal Luies was employed as a Services
Manager. His responsibilities included safety of the Services
Department, including security and transportation of other employees.
His dismissal followed upon an earlier bus accident that took place
on 9 June 2011 with employees aboard. Following this accident,
it is
the applicant’s case that Luies was instructed to ensure the
safety of employees travelling in company vehicles by
installing and
fitting seat belts in various buses utilised by the applicant for the
transportation of its employees. It is further
the applicant’s
case that Luies was instructed to ensure that employees wore such
seat belts on all the buses.
[3]
According
to the applicant, the instruction to Luies was further to arrange for
quotations for the installation of seat belts as
well as to ensure
their fitment and the enforcement of their use by passengers in the
vehicles. There were a number of e-mails
exchanged pertaining to
these instructions as well as discussions in person, including an
e-mail from Swanepoel, the COO and Luies’
supervisor on 14 July
2011 stating:
“
Jack
Dit klink baie. Ek
onthou dat Highveld belde geinstaller het vir trokke wat opdaag
sonder belde vir R100 ‘n belt! (dis nou
wel 2 jaar gelede) kan
ons uitving wat sal ‘n beld kos by Midas en ander plekke?
Ons moet dit doen,
maar dit klink rof!
Dankie
JS”
[4]
On
27 December 2011 another bus was involved in an accident which
resulted in a number of employees being hospitalised. Luies inspected
the bus and took a photo of the only seat with a seat belt, which
belt was tied behind the seat. This photo was forwarded to Swanepoel.
It however came to light that the bus was not fully fitted with seat
belts.
[5]
Luies
was questioned by Swanepoel as to why the bus had not been fully
fitted with seat belts. Luies’ response was to dispute
that he
had been instructed to ensure the fitment of the seat belts in buses.
Luies was thereafter suspended with immediate effect
and disciplinary
steps initiated against him.
[6]
Luies
was charged with 6 counts of misconduct to which he had pleaded not
guilty. The disciplinary hearing was presided over by
Mr E Killian
(Killian) of Frontiers Employers’ Association of which the
applicant is member. Killian found Luies guilty of
all charges and
recommended that he be summarily dismissed.
[7]
Luies
appealed against the chairperson’s decision and was partially
successful, as two charges were overturned. However the
recommended
sanction remained the same. Luies thereafter referred an unfair
dismissal dispute to the CCMA, resulting in an award
which is the
subject of the current review proceedings.
Application for
condonation:
[8]
The
review application was filed and served on 4 September 2012. This was
followed by a supplementary affidavit on 15 January 2013.
Luies
filed and served his answering affidavit on 7 March 2013, whilst a
replying affidavit was filed and served on 13 March 2013.
[9]
In
the replying affidavit, it was pointed out that the Luies’
answering affidavit was out of time and that he had not applied
for
condonation. Luies should have served and filed his answering
affidavit by 17 December 2012 but only did so on 12 March
2013. An
agreement was entered into between the parties extending the period
for the filing of the answering affidavit on a number
of occasions
with the final date for service being 1 March 2013. Luies
nevertheless alleges that the applicant agreed not to oppose
the
condonation application due to the extensions granted. The applicant
however denies having agreed not to oppose the application.
[10]
It
is now trite that in order to succeed with an application for
condonation, the party seeking such indulgence from the Court must
show the following:
(a)
the degree of lateness or non compliance with the prescribed time
frames is not excessive; (b) provide a full explanation of
every
aspect of the period the lateness or the failure to comply with the
time frames, (c) show that there are prospects of succeeding
or that
there exists a
bona
fide
defence when the matter is to be considered in the main case, (d)
show the importance of the cases, (e) show that the delay was
not due
to the fact that the applicant was not interest in the finality of
the matter
[1]
.
[11]
In
the often referred to decision in
Melane
v Santam Insurance Co Ltd
[2]
,
the Court held that without a reasonable and acceptable explanation
for the delay, the prospects of success are immaterial, and
without
prospects of success, no matter how good the explanation for the
delay, an application for condonation should be refused.
[12]
A
further consideration whether or not to grant condonation is the
steps that a party had taken as soon as it became aware that
there
was non-compliance with the required time frames. Thus, it is
expected of a party to bring the application for condonation
as soon
as it becomes apparent that there is a need to do so. In further
exercising its discretion, a Court will be influenced
by
considerations of fairness
[3]
[13]
The
founding affidavit to the application for condonation was deposed to
by Pierre Wolmarans, of Luies’ attorneys of record.
Luies
deposed to the replying affidavit in this regard. In explaining the
delay in filing the answering affidavit, Wolmarans averred
that the
appointed counsel, Adv Wilke was briefed in the matter during 2012 to
draft the answering affidavit. It is not deemed
necessary to deal
with all the averments pertaining to Adv Wilke other than to state
that he was unable to timeously settle the
answering affidavit due to
other work commitments.
[14]
The
applicant correctly takes issue with the founding affidavit as
deposed to by Wolmarans and the reasons proffered for the late
delivery of the answering affidavit. In this regard, it was submitted
that Luies and Wolmarans knew on 7 March 2013 that the answering
affidavit was out of time and that condonation was required. There
was no explanation as to the reason that the application was
only
faxed on 12 March 2013 when the answering affidavit was served on 7
March 2012
[15]
It
was further submitted that Wolmarans was not a party to the review
proceedings, and that the contentions in regards to the workload
of
Counsel were inadmissible hearsay evidence. Furthermore, it was
submitted that from the reading of the founding affidavit, Luies
was
not involved in its preparation, and that a belated attempt was made
to file his confirmatory affidavit with a view of regularising
and
involving him.
[16]
Significant
with Wolmarans’ founding affidavit is that it was not
accompanied by either Luies’ or Adv Wilke’s
confirmatory
affidavit. Adv Wilke’s submission during the hearing of this
application that counsel can confirm the correctness
of the contents
of the founding and answering affidavits from the bar cannot be
sustained. As correctly pointed out on behalf of
the applicant, his
submissions were merely in regards to his own circumstances, and was
not evidence for the purposes of the application
before the Court. To
attach any weight to these submissions as made from the bar would
clearly prejudice the applicant in the light
of its opposition to the
application.
[17]
Luies’
confirmatory affidavit to the founding affidavit was only attached to
his replying affidavit, and this confirms the
applicant’s
contentions that this was clearly with an attempt to involve him in
the founding affidavit
albeit
,
late. Furthermore, little weight should be attached to Luies’
replying affidavit to the extent that he seeks to amplify
Wolmarans’
allegations. It is trite that a case cannot be made out in a replying
affidavit
[4]
.
[18]
Given
the manner with which this application was brought before the court,
it should be concluded that not much weight can be attached
to any
averments made by Wolmarans in respect of either Luies or Adv Wilke.
I am in agreement with the applicant’s contentions
that the
allegations regarding Adv Wilke in the supporting and Wolmarans’
founding affidavits are mere hearsay and should
thus be struck off.
[19]
Even
if any merit was to be attached to allegations made in respect of
Adv. Wilke, the Court cannot accept the explanation that
he was
committed to other work hence he could not timeously attend to the
founding affidavit. This explanation is not only lame
but also
unconscionable, and the Court cannot be seen to countenance non
observation with time frames simply on the basis that
Counsel was
overburdened with other work. Our Courts have repeatedly held that
there is a limit beyond which a litigant cannot
escape the result of
his or her attorney’s lack of diligence
[5]
.
[20]
The
only explanation in Wolmarans’ founding affidavit that requires
any attention is in regards to the contention that as
a result of
extensions granted, the applicant had waived its rights or agreed not
to oppose the application for condonation. The
applicant vehemently
denies having agreed to grant an extension to 8 February 2013 from
the initial date of 29 January 2013, and
contended that it only
agreed to a further extension until 1 March 2013. It was contended
that it could not have granted such an
extension as it was not aware
of Adv Wilke other commitments.
[21]
I
am also in agreement with the applicant’s submissions that it
could not have indicated to Luies or his attorneys of record
that it
would not oppose the application for condonation, particularly in
view of the number of extensions it had granted. Even
so, it is not
for the parties to agree to waive compliance with the Court’s
Rules and the fact that there may have been an
agreement to disregard
the applicable time frames does not imply that the Courts should
equally look the other way when there is
non-observance with its
rules.
[22]
It
is accepted that Wolmarans was Luies’ representative at the
arbitration proceedings. However, in regards to Luies’
prospects of success in the main application, mere averments were
made by Wolmarans without substantiation that he had such prospects.
[23]
To
the extent that the above problems with this application have been
pointed out, it follows that in the words echoed in
Moila
v Shai N.O. and Others
[6]
the purported explanation for the delay in Wolmarans’ founding
affidavit amounts to no explanation at all, and in the circumstances,
it would not be necessary to consider the prospects of success or
other considerations pertinent to such applications. This is
even
more apposite in this case, where a bald allegation that the Luies
has excellent prospects of success as evidenced by the
answering
affidavit in the review application was made. To this end, the
application for condonation for the late delivery of the
answering
affidavit is dismissed, and the review application should be treated
as unopposed.
The review
application.
(i)
The
award
[24]
In
his analysis in the arbitration award, the Commissioner having heard
the evidence of Messrs E Killian, SN Mafoane, Johan Swanepoel
Charles
Nkosi, and also that of Luies, came to the conclusion that;
a)
The
primary issue was whether the e-mail referred to elsewhere in this
judgment was an instruction as per the charge, and whether
Luies had
failed to carry it out.
b)
“
On
a balance of probability” and taking into account simple
consideration of language structure and context into account,
the
e-mail was not an instruction, and was more an indication not to
proceed since the price of installation seemed to be high
according
to Swanepoel. The e-mail simply suggested other ‘qoutes’,
and gave no details and no requirements for feedback.
The only reason
the applicant in this case could claim that the e-mail was an
instruction was probably because it could not justify
the dismissal.
(ii)
Grounds
for review:
[25]
The
applicant raises a number of grounds for review in its application.
These in certain instances overlap and are summarised as
follows;
(a)
The
Commissioner failed to take into account material evidence and failed
to deal with evidence given by the applicants’ witnesses
during
the arbitration,
inter
alia
relating to the trust relationship between the parties and the
existence of an instruction to Luies relating to the installation
of
seatbelts in buses used by other employees.
(b)
The
Commissioner made a finding which is not supported by the evidence in
that he recorded that the applicant did not argue that
reinstatement
would be intolerable or impractical when it was the latter’s
view that such was clear through the evidence
led.
(c)
The
Commissioner failed to apply his mind to the evidence before him, and
in particular, to the dispute as to whether or not an
instruction had
been issued to Luies or not. The Commissioner’s finding in this
regard was deemed irregular by the applicant.
(d)
The
Commissioner failed to discharge his mandate in that he failed to
decide the guilt of Luies in respect of each of the charges
levelled
against him during the disciplinary proceedings.
(e)
The
Commissioner committed errors of law in his findings. This is based
on the allegation that reinstatement was ordered due to
the finding
of substantive unfairness and not due to it being the most suitable
remedy.
(f)
The
Commissioner did not apply his mind in making his decision based on
his awarding of reinstatement of Luies.
(g)
The
Commissioner failed to apply his mind to the finding that there was
no instruction given to Luies.
(h)
The
Commissioner’s finding relating to procedural unfairness is
irrational and not substantiated by evidence.
(i)
The
award is reviewable because the Commissioner did not resolve factual
disputes in the witnesses’ versions and provided
a superficial
analysis of the evidence of the witnesses.
(j)
The
Commissioner wrongfully curtailed the leading of evidence at the
arbitration proceedings.
(k)
The
Commissioner erred in permitting Killian to give evidence and
represent the Applicant.
(l)
The
Commissioner erred in that his finding went beyond the parameters of
the procedural unfairness complained of by Luies.
(m)
The
Commissioner erred in finding that the e-mail from Swanepoel to Luies
on 14 July 2011 was an indication not to proceed with
the
installation of the safety belts.
(n)
Luies’
version is essentially that the e-mail from Swanepoel on 14 July 2011
was not a clear instruction to him to have the
safety belts
installed, and that it was simply communication pertaining to other
avenues being investigated, including the outsourcing
of transport.
(iii)
The
legal framework and evaluation:
[26]
The
test for review as enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[7]
involves the reviewing court having to determine whether the decision
reached by the commissioner is one that a reasonable decision-maker
could not reach in relation to the material placed before him or her.
[27]
The
Sidumo
test was further explained in
Herholdt
v Nedbank Ltd
as
follows;
“
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s145(2)(a) of the LRA.
For a defect in the conduct of the proceedings to amount
to a gross
irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must
have misconceived the nature of the inquiry or
arrived at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach
on all the material that
was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached
to particular facts, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their
effect is to render the outcome
unreasonable”
[8]
[28]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[9]
,
the Labour Appeal Court posed the following questions with a view to
determining whether a commissioner has properly acquitted
him or
herself;
“…
..
(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
employed give the parties a full opportunity to have their say in
respect of the dispute? (ii) Did the arbitrator identify the
dispute
he was required to arbitrate (this may in certain cases only become
clear after both parties have led their evidence)?
(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? and (v) Is the arbitrator’s decision one
that another decision-maker could reasonably
have arrived at based on
the evidence?”
[10]
(Citations
omitted)
[29]
It
is trite that in considering whether a dismissal was substantively
fair, a Commissioner is obliged to determine whether the
reason
that led to that dismissal was fair
[11]
.
In this case Luies was dismissed on account of gross negligence,
gross insubordination, putting the lives of fellow workers in
danger,
and breach of the trust relationship in that he had allegedly failed
to discharge his responsibilities as a manager of
the department by
grossly neglecting an instruction from his supervisor to ensure that
all Hernic buses were fitted with safety
belts and the wearing of
such belts.
[30]
It
was common cause that on appeal, Luies was not found guilty on the
two initial charges pertaining to gross dishonesty and making
false
statements or misrepresentation. Contrary to the applicant’s
contention that the Commissioner ought to have considered
all six
charges of misconduct against Luies in the arbitration proceedings,
there was no such obligation on the Commissioner as
Luies following
the appeal hearing was only dismissed on account of the four charges,
which for the purposes of section 188 (1)
(a) of the LRA were the
reasons for the dismissal.
[31]
Central
to the Commissioner’s findings however was that the applicant
had not on a balance of probabilities, proven that an
instruction was
issued to Luies as alleged. The basis of the Commissioner’s
conclusions was the e-mail relied upon by the
applicant upon its
language and structure, did not constitute an instruction.
[32]
I
am in agreement with the applicant that the Commissioner’s
conclusions in this regard constituted a reviewable irregularity,
and
that he had indeed failed to take into account the totality of the
material placed before him in coming to that conclusion.
That
conclusion is one which a reasonable commissioner could not have come
to in the light of the material and evidence before
him. My
conclusions in this regard are fortified by the following;
[33]
It
was common cause that following upon the first bus accident of 9 June
2011, and the enquiries in this regard made by the CEO
of the
applicant, the instalment of seat belt in buses and the enforcement
of their wearing became a concern, resulting in an exchange
of
e-mails with the safety officer, Nkosi, and the COO, Swanepoel.
Swanepoel had then sent an e-mail to Luies to install and enforce
the
wearing of seat belts on all company buses, and the latter’s
response was to say that it was fine and that the head of
security
Billy Botha was to get quotations to install the seat belts in the
company buses.
[34]
On
14 July 2011, Botha had obtained a quotation which he had forwarded
to Luies, and who had in turn forwarded to Swanepoel on 14
July 2011.
Swanepoel’s response to Luies according to the applicant
constituted an instruction which the Commissioner had
nevertheless
found otherwise. To the extent that the Commissioner had relied on
the ordinary language and structure of the contents
of the e-mail in
concluding that it was not an instruction, he failed to deal with the
substantial merits of the dispute in that;
(a)
On
10 June 2011, Swanepoel had forwarded an e-mail from the CEO to Luies
and Botha which stated “
For
action please”
in relation to the CEO’s enquiries whether buses had seat belts
installed and the enforcement of those belts.
(b)
In
respect of the e-mail of 14 July 2011, Swanepoel’s explanation
was that the quotation given in respect of the installation
of the
seat belts in buses was very high. He nevertheless considered the
e-mail to be an instruction to fit seat belts
[12]
.
(c)
After
the second bus accident and when Swanepoel made enquiries with Luies
about why the bus was did not have seat belts installed,
the latter’s
response was that he had not received any instruction that the buses
should be fitted with seat belts. This
response was strange to
Swanepoel as he had sent Luies e-mails
[13]
.
(d)
The
seat belts were installed in buses in January 2012 after the second
accident, and this had taken a few days
[14]
(e)
On
1 September 2011 during a Safety Committee Meeting, Nkosi had raised
the issue of seat belts in buses and Luies’ response
was that
safety belts had been installed in one bus and other buses were to
follow.
(f)
Only
after the second bus accident did Luies make any effort to ensure
that buses had seat belts installed.
(g)
It
was never disputed by Luies that there was a need to install seat
belts in the buses, and further that there was continuous
communication in that regard. His main defence under examination in
chief was that the e-mail in question was a mere communication
as it
did not specify any due dates.
(h)
During
cross-examination however, he conceded that he did not deny that an
instruction was issued to install the safety belts, but
that the
e-mail from Swanepoel was not an instruction
[15]
.
He had conceded that he had received an e-mail from Swanepoel
stating; “
For
action please
”
[16]
,
and had responded that Billy would get the quotations. His evidence
further was that he had acted on Swanepoel’s instruction
and
Nkosi had followed up on the matter with him
[17]
.
(i)
Luies
had further conceded under cross-examination that he had received the
instruction to enforce the wearing of seat belts
[18]
,
but that he had only acted on the instruction on 28 December 2011
after the second bus accident
[19]
.
(j)
Evidence
was led at the arbitration proceedings by Mafoane that when asked
about the second accident his response was that the issue
of seat
belts had slipped his mind.
[35]
It
is apparent from the Commissioner’s conclusions that the above
evidence, which was critical to a finding whether an instruction
was
issued or not was completely ignored. In approaching the matter in
the manner as he had, the Commissioner failed to take into
account
the background already set out, and treated the e-mail by merely
giving a literal interpretation to it without contextualising
it in
relation to the other material and evidence before him. The net
effect of the failure to consider all of the above, rendered
the
outcome reached by the Commissioner unreasonable.
[36]
The
applicant had also attacked the Commissioner’s findings in
regards to procedural fairness. The Commissioner had in this
regard
concluded that Luies was not accorded a fair disciplinary enquiry on
the basis that he was not provided with detailed reasons
of the
findings by the appeal chairperson.
[37]
Item
4 (1) of Schedule 8 – Code of Good Practice as contained in the
LRA merely provides that after the enquiry, the employer
should
communicate the decision taken, and preferably furnish the employee
with written notification of that decision. The Code
does not provide
guidelines on appeals. I am however of the view that there is no
obligation on an employer or the chairperson
of an appeal to provide
detailed reasons in regards to an appeal lodged by an employee. What
is required ordinarily is to have
such an appeal considered once
lodged, and to make a determination in that regards.
[38]
In
this case, an appeal hearing was held on 29 February 2012, was
considered and a determination made
[20]
.
A failure by the chairperson of the appeal hearing to provide
detailed reasons for his decision cannot on its own constitute
procedural fairness.
[39]
Significant
however to the Commissioner’s findings was that Luies’
dismissal was also procedurally unfair in that the
chairperson of the
enquiry, Kilian, was biased. The Commissioner acknowledged that
“
Whilst
there was probably no easy way for the applicant (Luies) to determine
bias during his (internal hearing), bias affecting
the applicant
became apparent during arbitration”
[21]
[40]
The
Commissioner’s reasoning in respect of the above was that
Kilian, who was the presiding officer in the internal enquiry
and
also the applicant’s representative in the arbitration
proceedings had remarked at one point that that the trust
relationship
between Luies and the applicant was broken. This remark
was not made an as expression of an opinion or his findings, but in
the
same way and tone that was expected of a witness employed by the
applicant. Furthermore, from the mere fact that Kilian had acted
in
both capacities, the Commissioner observed that this had worked
against any assumption or assertion that he was an objective
chairperson, and accordingly and in retrospect, the internal hearing
was most probably not conducted by an objective chairperson,
making
it unfair
[22]
.
[41]
The
above conclusions are extraordinary in the extreme on the basis that
it does not appear to have been Luies’ case that
the
chairperson of the enquiry was biased, and it is apparent that the
Commissioner considered issues that were not before him.
Once the
Commissioner had formed the view that
there
was probably no easy way for the applicant (Luies) to determine bias
during his (internal) hearing,
that
should have been the end of the matter. As correctly pointed out on
behalf of the applicant, the Commissioner clearly went
beyond his
mandate in making a finding of bias.
[42]
The
Commissioner’s conclusions in this regard are a further
indication that he clearly misconstrued the nature of the enquiry
into procedural fairness. Where the objectivity of an internal
chairperson is questioned, it can only be measured and determined
against his or her conduct during the disciplinary enquiry itself and
from his or her findings, and not from the Commissioner’s
own
subjective perceptions and inferences.
[43]
The
Commissioner in this case made a finding of bias on the basis of
Kilian’s conduct as the applicant’s witness in
the
arbitration proceedings. There was a need on the part of the
Commissioner to distinguish between Kilian’s two different
roles as both chairperson of the enquiry and as representative of the
employer in the arbitration proceedings. Significantly however
is
that Kilian’s objectivity as a chairperson had not been
questioned by Luies in the arbitration proceedings, and even if
it
had, the Commissioner again misconstrued the test of bias.
[44]
The
test of bias is whether there is existence of a reasonable suspicion
of bias
[23]
, and the applicant
alleging bias does not have to demonstrate actual bias
[24]
.
In
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[25]
the Constitutional Court elucidated the test as follows;
"The
question is whether a reasonable, objective and informed person would
on the correct facts reasonably apprehend that the
Judge has not or
will not bring an impartial mind to bear on the adjudication of the
case, that is a mind open to persuasion by
the evidence and the
submissions of counsel."
[45]
Within
the context of a disciplinary enquiry, the test therefore requires an
objective and reasonable apprehension by the employee
that the
presiding officer would not determine the matter in an impartial
manner or without prejudice to him or her. Significantly
however, a
mere subjective suspicion of bias or apprehension of bias on the part
of the employee is not on its own sufficient as
more is required
[26]
.
That apprehension of bias must be based on reasonable grounds
[27]
.
[46]
In
this case, as already indicated, the Commissioner completely
misconstrued the test of bias. The apprehension or suspicion of
bias
must
not
be that of the Commissioner, but that of the employee subjected to
the disciplinary enquiry. In this case, the Commissioner put
himself
in the shoes of Luies and pursued the argument surrounding bias out
of his own. In coming to his conclusions, the Commissioner
was
influenced by speculation and baseless inferences.
[47]
By
adjudging Kilian’s conduct in the arbitration proceedings and
concluding in retrospect that he would have not been impartial
in the
internal proceedings on account of his different role in the
arbitration proceedings, the Commissioner committed gross misconduct.
To this end, his conclusions in this regard do not fall within a
range of reasonableness.
Conclusions:
[48]
In
the light of it having been concluded that the findings of the
Commissioner on both substantive and procedural fairness were
not
those of a reasonable Commissioner in the light of the material
before him, it follows that the award should be reviewed and
set
aside.
[49]
The
flaws that rendered the award unreasonable have been pointed out, and
having had regard to the record of the proceedings, the
submissions
made and the conclusions reached, no purpose would be served by
remitting the matter back to the CCMA, and the Court
is in a position
to finally dispose of the matter. I have further had regard to the
submissions in regard to the issue of costs
and based on
considerations of law and fairness, it is determined that no cost
order should be made. In these circumstances, the
following order is
made;
Order:
i.
The
application to condone the third respondent’s late filing of
the answering affidavit to the review application is dismissed.
ii.
The
award issued by the second respondent under case number GATW3537-12
dated 18 July 2012 is reviewed and set aside.
iii.
The
above award is substituted with an order that;
“
The
dismissal of Jacobus Hendrick Daniel Luies by Hernic Ferrochrome
(Pty) Ltd was procedurally and substantively fair”.
iv.
There
is no order as to cost in respect of both the application for
condonation and the review application.
__________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Adv O Mooki
Instructed
by:
Cowan – Harper Attorneys
On
behalf of the Respondent:
Adv F Wilke
Instructed
by:
Manong Badenhorst Abott van Tonder Attorneys
[1]
See
Forster
v Steward Cott Inc
(1997)
18 ILJ 367 (LAC) and also
Gaoshubelwe
and others v Pie Man’s Pantry (Pty) Ltd
(2009) 30 ILJ 347 (LC).
[2]
1962 (4) SA 531
(A) at 532 C-F
[3]
Brummer v
Gorfil Brothers Investments (Pty) Ltd
[2000] ZACC 3
;
[2000] (2) SA 837
(CC) at 839 F
[4]
Betlane v
Shelly Court CC
2011 (1) SA 388
(CC) at para 29
[5]
See
Saloojee
& another v Minister of Community Development
1965 (2) SA 135
(A) 141 B-H and
Superb
Meat Supplies CC v Maritz
(2004) 25 ILJ 96 (LAC)
[6]
(2007) 28 ILJ 1028
(LAC) at para 34
[7]
[2007] 12 BLLR 1097
(CC) at para [110]
[8]
Herholdt v Nedbank Ltd (COSATU as amicus
curiae)
(2013) 34 ILJ 2795 (SCA) at
para [25]
[9]
(2014) 35 ILJ 943 (LAC)
[10]
At para [20]
[11]
Section 188 (1) of
the LRA provides that;
A
dismissal that is not automatically unfair, is unfair if the
employer fails to prove-
(a)
That
the reason for a dismissal is a fair reason-
(i)
Related
to the employee’s conduct or capacity; or
(ii)
Based
on the employer’s operational requirements; and
(b)
That
the dismissal was effected in accordance with a fair procedure
[12]
P 168 of the
record, line 21-23
[13]
P 171 of the
record, line 6-9
[14]
P175 of the
record, line16-19
[15]
P306 of the
record, line 17 - 23
[16]
P 307 line 1
[17]
P79
[18]
P323 line 10-15
[19]
P 313 line 9 - 14
[20]
P581 of the bundle
[21]
Paragraph 13 of
the award (p42 of the bundle)
[22]
Para 15 of the
award at p43 of the bundle
[23]
BTR Industries
SA (Pty) Ltd & others v Metal & Allied Workers Union &
another
(1992) 13 ILJ 803 (A),
[24]
BTR Industries
South Africa (Pty) Ltd and Others v Metal and Allied Workers' Union
and Another
[1992] ZASCA 85
;
1992 (3) SA 673
(A) at 690 A – B
[25]
[1999] ZACC 9
;
1999 (4) SA 147
(CC) at 177B – C
[26]
See
S
v Malindi & Others
1990 (1) SA 962
(A) at 969 G – H;
[27]
South African
Commercial Catering and Allied Workers Union and Others v Irvin &
Johnson Ltd (Seafood Division Fish Processing)
[2000] ZACC 10
;
2000
(3) SA 705
(CC)