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[2015] ZALCCT 13
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Satani v Educational Labour Relations Council and Others (C272/2014) [2015] ZALCCT 13 (10 February 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Court of South Africa, Cape Town
Judgment
Case
No: C272/2014
DATE:
10 FEBRUARY 2015
Not
Reportable
Of
Interest To Other Judges
In
the matter between:
MONDE
CHRIS
SATANI
.............................................................................................
Applicant
And
EDUCATION
LABOUR RELATIONS
COUNCIL
.............................................
First
Respondent
MS
B GOLDMAN
N.O
..................................................................................
Second
Respondent
DEPARTMENT
OF EDUCATION, WESTERN
CAPE
.......................................
Third
Respondent
Heard:
28 January 2015
Delivered:
10 February 2015
Summary:
Review – unfair labour practice – LRA ss 145 and 186.
Judgment
STEENKAMP
J
Introduction
[1]
The applicant, Mr Satani, is a teacher
employed by the third respondent, the Western Cape Department of
Education. As a result of
allegations of his behaving in an “improper
and unbecoming manner” toward a learner at Bardale Primary
School by making
comments with a sexual undertone to her, the
Department held a disciplinary hearing. The chairperson found that
the employee had
committed the misconduct complained of. The
Department imposed a final written warning and a fine of R6000, to be
deducted in instalments
of R600 per month over a year.
[2]
The
employee lodged an unfair labour practice claim with the Education
Labour Relations Council, claiming that the sanction constituted
unfair “disciplinary action short of dismissal” in terms
of s 186 of the Labour Relations Act.
[1]
[3]
The arbitrator, Ms Bella Goldman, dismissed
the claim. The employee seeks to have that award reviewed and set
aside in terms of
s 145 of the LRA.
Background
facts
[4]
The
learner
[2]
was 13 years old but
had only progressed to grade 6 at the time of the alleged incident.
The employee, Mr Satani, was her grade
teacher. The learner did
poorly in maths and English. The employee was not her subject teacher
for those subjects. Nevertheless,
at some time in September or
October 2012, he called learners who had performed poorly to his desk
to discuss their marks.
[5]
The learner says that the employee called
the learners to his desk individually. He disputes it. He says he
called them up as a
group. The learner testified that, when she went
to see the employee, he asked her “if she knew she was
beautiful”
and asked her for her phone number. She did not.
[6]
The next day, according to the learner, the
employee called her to his desk again. He asked her for her phone
number again. He also
asked her a number of inappropriate questions,
such as:
·
whether she had a boyfriend;
·
if she went out walking at night;
·
if she would meet him in the bush.
[7]
The
learner refused to give the employee her phone number. On the same
day, she reported the incident to another learner and to
her
mother.
[3]
The latter, in turn,
reported it to the principal. The principal called all the affected
parties to her office. The employee denied
the incident. He said that
he asked the learner for her mother’s telephone number in order
to discuss her poor maths marks.
The
award
[8]
At the arbitration, the learner recounted
the incidents outlined above. Her mother/aunt, another learner and
the principal also
testified. Their evidence mostly constitute
hearsay, as they mainly reiterated what the learner had reported to
them. The employee
testified and called two other learners as
witnesses. The tenor of their testimony was that the employee had not
called individual
learners to his desk, but called them up as a
group.
[9]
The employee’s attorney, Mr Funeka,
put it to the learner that she was not registered and did not have a
“CEMIS number”
at the time of the alleged incident, hence
the employee could not obtain her mother’s phone number from
her file and had
to ask her for it. He also put it to the learner
that she did not receive report cards. By agreement, the Department
furnished
the arbitrator with report cards for the relevant period
after the arbitration. It was also agreed that both parties would
submit
written representations rather than oral argument. When Mr
Funeka received the report cards, he claimed in his written
representations
that they were forged. He did not ask for the
arbitration to be reconvened in order to call expert evidence in this
regard, nor
did he ask for the author of the report cards to be
called. The arbitrator said that she was not a forgery expert and
could not
accept the submission that the report cards had been
forged. She pointed out that, in any event, the learner did have a
“personal
profile” file on which her mother’s phone
number appeared.
[10]
The arbitrator found that the employee’s
evidence was not credible. Apart from the false allegation that the
learner had not
received report cards, she took into account the
following:
·
The principal testified that, when a
learner is failing in a particular subject, it is more appropriate
for that subject teacher
to contact the parent. It would have been
more practical and useful for the employee to ask the learner’s
maths and English
teachers to address it, rather than him allegedly
asking the learner for her mother’s telephone number so that he
could contact
the parent.
·
The employee said that he had never met the
learner’s mother, but it was common cause that he asked the
learner if it was
her mother who was recently at the school and was
shouting. The mother’s version that she had met the employee
previously
was more probable.
·
It was improbable that the employee would
never have spoken to learners individually, as he testified.
·
The employee testified that his classroom
was very small and overcrowded and that he had 52 learners in his
class; yet the principal’s
evidence that there were only 32
learners in his class was substantiated by the class list. His
evidence is also contradicted by
his own version that he called 11or
12 learners to his desk simultaneously and that there was enough
space for them.
[11]
The arbitrator concluded that the evidence
of the employee and his witnesses was not credible, as opposed to
that of the learner
and her witnesses. She found that, on a balance
of probabilities, the employee had committed the misconduct
complained of and that
the sanction imposed did not constitute an
unfair labour practice.
Grounds
of review
[12]
Although a number of review grounds were
raised in the founding affidavit, Mr
Bosch
confined his attack on two broad grounds, namely bias and
unreasonableness.
Evaluation
/ Analysis
[13]
I will deal with each of the two broad
grounds of review in turn.
Bias
[14]
The
test for a reasonable apprehension of bias pertaining to judges has
been summarised by the Constitutional Court
[4]
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 by the
submissions of counsel. The reasonableness of the apprehension must
be assessed in the light of the oath of office taken
by the judges to
administer justice without fear or favour; and their ability to carry
out that oath by reason of their training
and experience. It must be
assumed that they can disabuse their minds of any irrelevant personal
beliefs or predispositions…”
[15]
I
accept that the same principles must pertain to arbitrators; however,
it must be borne in mind that an arbitrator is enjoined
to hear the
arbitration “with a minimum of legal formalities”.
[5]
As Wallis AJ
[6]
pointed out in
Naraindath
[7]
:
“
It
would stultify the entire purpose of the legislation if this Court
were, in the face of clearly stated intentions, to insist
on
arbitrators appointed by the CCMA to resolve unfair dismissal
disputes conducting those proceedings in slavish imitation of
the
procedures which are adopted in a court of law and subject to the
technical rules of evidence which apply in those courts.
Such an
approach is in my view contrary to the express provisions of the LRA.
Section 138(1) is the decisive provision in this
regard. It empowers
the commissioner to conduct the arbitration in such manner that the
commissioner considers appropriate in order
to determine the dispute
both fairly and quickly. Lest the commissioner is under any
misapprehension as to what is required the
section goes on to direct
that he or she discharges his or her functions with the minimum of
legal formalities.”
[16]
He
went on to say:
[8]
“
I
also agree with the warning which Jali AJ (as he then was) sounded in
Mutual & FederalInsurance Co Ltd v
CCMA & others
[1997] 12 BLLR 1610
(LC) about the need for an arbitrator, who adopts a more
inquisitorial and participative role in the proceedings than is
customarily
the case in an adversarial hearing, to be vigilant to
ensure not only that the proceedings are fair to both parties but
that the
appearance of fairness is always maintained. However, with
respect, insofar as certain passages in his judgment might be
taken to indicate that it is only a traditional adversarial process
as we know it from our courts that conforms to the
well-established rules of natural justice so that the commissioner’s
role is to mimic that of a trial judge and be a ‘silent
umpire’, I, with respect, cannot agree with him. There is no
warrant for that approach in section 138 and its general adoption
in
arbitration proceedings before commissioners would stultify the clear
purpose of this legislation.”
[17]
This
point was also stressed by the Constitutional Court in
CUSA
v Tao Ying Metal Industries
[9]
:
“
The
LRA introduces a simple, quick, cheap and informal approach to the
adjudication of labour disputes.
…
The
absence of appeal from arbitral awards was intended to speed up the
process of resolving labour disputes and free it from the
legalism
that accompanies other formal judicial proceedings. By adopting this
simple, quick, cheap and informal approach to the
adjudication of
labour disputes, Parliament intended that, as far as possible,
arbitral awards should be final and should only
be interfered with in
very limited circumstances.
…
Consistent
with the objects objectives of the LRA, commissioners are required to
‘deal with the substantial merits of the
dispute with the
minimum of legal formalities’.”
[18]
The
jurisprudence on the duties of a commissioner was also usefully
analysed, ironically in a matter concerning the same commissioner,
in
ZA
One (Pty) Ltd t/a Naartjie Clothing v Goldman N.O. & others.
[10]
What is clear from the jurisprudence, is that the extent to which a
commissioner descends into the arena by adopting an inquisitorial
approach will amount to misconduct if it she creates a perception of
bias in favour of one of the litigants.
[19]
The
overarching question is if the commissioner acted fairly. As the
court pointed out in
County
Fair Foods v Theron N.O.
[11]
:
“
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…
These principles have been reinforced by the constitutional
imperatives regarding fair administrative action… 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
).”
[20]
Commissioner Goldman undoubtedly adopted an
overly inquisitorial approach in the arbitration forming the subject
of this review
application. She constantly interjected and questioned
the witnesses at length – sometimes in more detail than their
representatives
did. But did she overstep the mark to the extent that
it would lead to a reasonable apprehension of bias, i.e. to the
extent that
a reasonable, objective and informed person would have
apprehended that she did not bring an impartial mind to bear on the
arbitration?
[21]
The first answer to this question is that
the employee was represented at arbitration by an experienced
attorney – the very
epitome of a “reasonable, objective
and informed person”. He did not shy away from his duty to
represent his client’s
best interests. Yet he never objected to
the on the arbitrator’s style of arbitration, nor did he ask
for her recusal. Not
even at the stage when he submitted his heads of
argument, well after the conclusion of the arbitration by way of oral
evidence,
did he raise a question of bias. Had the arbitrator’s
overly inquisitorial style raised such an apprehension at that stage,
surely the attorney would have raised it, either of his own accord or
on his client’s instructions. That in itself is a complete
answer to the question whether a reasonable apprehension of bias was
raised at the time.
[22]
The second answer is that the arbitrator
was even-handed in her conduct, unusual and intrusive as it was. She
did, as Mr
Bosch
submitted, constantly interject when the applicant’s attorney,
Mr Funeka, was questioning witnesses; she did, at times, appear
to go
so far as to take over the questioning. But she did the same with
regard to the questioning of witnesses by Mr Vorster, the
Department’s representative. And it must be borne in mind that
Mr Funeka is an experienced and trained attorney; Mr Vorster,
on the
other hand, has no legal training and he indicated at the outset that
this was his first arbitration. In those circumstances,
it is perhaps
understandable that the arbitrator went out of her way to question
witnesses in her quest for the truth and fairness.
The playing fields
were not level. She took it upon herself to try and smooth the pitch.
In doing so, she came close to overstepping
the mark; but she did
not, in my view, commit reviewable misconduct.
[23]
It is also clear from a reading of the
transcript that most of the evidence was conducted through an
interpreter. The learner was
an unsophisticated minor of below
average intelligence, as is clear from her poor results. She did not
always express herself clearly,
especially when viewed through the
prism of interpretation. That was evidently a further reason why the
arbitrator sought to clarify
the evidence by intervening and
questioning the witnesses herself.
[24]
The applicant raises a further point that,
according to him, gave rise to a reasonable apprehension of bias.
That is that his attorney
submitted his written heads of argument
without having seen those of the Department.
[25]
If that is the case, the applicant only has
his own attorney to blame. It appears from the transcript that the
parties agreed to
a timetable to send their written arguments to the
arbitrator. There was no explicit agreement that they would exchange
heads.
Most legal practitioners would have expected that. But the
Department was not legally represented. When Mr Funeka submitted his
argument, and if he was so troubled by the fact that he had not seen
those of the Department, why did he not simply pick up the
telephone
and contact Mr Vorster, another representative of the Department, the
Council or the arbitrator herself?
[26]
The applicant’s attorney submitted
lengthy heads of argument to the arbitrator, running to some 30
pages. She took his argument
into account. She applied her mind to
the evidence. There is no apparent prejudice to the applicant arising
from the fact that
she did not, of her own accord, ensure that the
Department had provided the applicant’s attorney with a copy of
its argument.
That was not her duty. Her failure to do so does not
constitute misconduct, nor did it prevent a fair trial of the issues.
[27]
In conclusion, I am not satisfied that the
award is reviewable on the basis that the arbitrator was biased.
Reasonableness
[28]
The
alternative ground of review is that raised in
Sidumo
[12]
,
i.e. whether the conclusion reached by the arbitrator was so
unreasonable that no other arbitrator could have come to the same
conclusion. As summarised in
Herholdt
:
[13]
“
A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(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
facts 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”.
[29]
In this case, the applicant has carefully
parsed through the award in order to point out alleged discrepancies
between the evidence
and the arbitrator’s conclusions. But that
is not the way in which a reviewing court must adjudicate. It needs
to consider
the conclusion against a conspectus of all the evidence
in a holistic manner. Viewed in that way, the conclusion reached by
the
arbitrator is not unreasonable. She was satisfied that the
employee had committed the misconduct complained of. A reviewing
court
will not lightly interfere with that conclusion. And once that
has been shown, the sanction of a final written warning coupled with
a fine of R6000 was not severe. It did not constitute an unfair
labour practice.
[30]
The applicant further complains that the
arbitrator considered reports that were submitted after the
conclusion of the arbitration.
He says that the authenticity of those
reports was disputed. But the reports were handed in after the
conclusion of the arbitration
by agreement between the parties. The
employee was represented throughout by his attorney of record, Mr
Funeka. He submitted written
representations. He did not ask the
commissioner to reconvene the arbitration in order for him to
challenge the authenticity of
the reports, be it by calling expert
evidence, calling or the author of the reports to question him or
her, or any other way. As
the arbitrator says, she is not a
handwriting expert. The employee’s legal representative did not
place any evidence before
the arbitrator to challenge the
authenticity of the reports. Her reliance on the reports and their
implications is not unreasonable.
[31]
There is one further consideration. The
applicant argued that the commissioner should have had regard to the
“cautionary rule”
with regard to the evidence of a single
witness, i.e. the learner.
[32]
It is so that the learner was, in effect, a
single witness. The other witnesses corroborated her evidence only
insofar as they could
testify to what she reported to them. It was
hearsay evidence and had to be accorded the appropriate weight. In
essence, this is
a classic case of “she said, he said”.
The arbitrator found the evidence of what “she said” more
credible
than what “he said”.
[33]
Firstly,
concerning the hearsay nature of the corroborating evidence, the
Court in
Naraindath
[14]
pointed out that the rule, even in our courts, is no longer absolute
in its effect in consequence of the provisions of s 3 of the
Law of
Evidence Amendment Act.
[15]
“If that is the approach in our courts of law then it follows
a
fortiori
in my view that reliance by an arbitrator upon hearsay evidence which
he or she is satisfied on proper grounds is reliable does
not
constitute a reviewable irregularity.” I agree, especially
given the corroborative nature of the hearsay evidence in
this case.
[34]
Secondly,
with regard to the “cautionary rule”, that rule applies
to criminal trials. As the learned authors comment
in
Labour
Law through the Cases
:
[16]
“
The
cautionary
rule relating to the
evaluation
of
evidence
of a single witness in criminal matters,
that
require
s
the
evidence
to be “clear and satisfactory in every respect” before it
could be relied on, it was f
oun
d
i
n
Northam
Platinum Mines v Shai NO
[17]
,
h
as
evolved significantly
.
An
arbitrator
should
assess “the probabilities of the respective versions and, if
necessary, make credibility findings to arrive at an outcome”.
In
casu it was held that
the
“commissioner took the absence of independent corroboration of
the employer’s witnesses’ versions to have
been fatal,
instead of applying a more nuanced evaluation of the evidence in
keeping with the applicable legal principles”.
[35]
Barely
two weeks after the judgment in
Naraindath
[18]
the
Labour Appeal Court handed down judgment in
Blyvooruitzicht
Gold Mining Co Ltd v Pretorius.
[19]
That Court pointed out
[20]
that,
in criminal cases, the evidence of a single witness is only treated
with caution if it is contested by an accused. It did
not deal with
the applicability of that principle to arbitrations in any further
detail.
[36]
In
Blue
Ribbon Bakeries v Naicker
[21]
the court noted that the commissioner in that case “fail[ed] to
apply the cautionary rules of evidence to the testimony of
the first
respondent who was a single witness”; but that was in the
context where the commissioner failed altogether to make
any
credibility findings. In the case before me, the commissioner did
make a credibility finding against the employee and in favour
of the
learner. In that context, the failure to apply the cautionary rule
applicable to criminal cases does not, in my view, amount
to a
reviewable irregularity. To hold otherwise would be contrary to the
stated aims of the LRA to provide a quick, informal and
non-legalistic method of dispute resolution.
[37]
The conclusion reached by the arbitrator,
based on all the evidence before her, is in my view not so
unreasonable that no other
arbitrator could have come to the same
conclusion.
Conclusion
[38]
Despite the fact that the arbitrator’s
style in this case was on occasion more inquisitorial than would
ordinarily be prudent,
it was not so egregious as to lead to a
reasonable apprehension of bias. Suffice to say that she should
caution against being too
interventionist in the future. The award is
not reviewable on that ground. And viewed against the test of
reasonableness, her conclusion,
having had regard to all the evidence
on record, that the applicant had not discharged the onus of showing
that he was subjected
to an unfair labour practice, is not so
unreasonable that no other arbitrator could have come to the same
conclusion.
Costs
[39]
The
applicant was not successful. However, this Court has to take into
account the principles of both law and fairness when deciding
costs.
[22]
I take into account
that the applicant is still employed by the Department. He has been
punished. He has incurred further legal
costs. I do not deem it fair
for him to be ordered to pay the Department’s costs as well.
Order
The
application for review is dismissed.
Steenkamp J
APPEARANCES
APPLICANT:
C S Bosch
Instructed by
M Funeka attorneys, Cape Town.
THIRD
RESPONDENT:
S C O’Brien
Instructed by
the State.Attorney, Cape Town.
[1]
Act 66 of 1995 (the LRA).
[2]
Although the learner was identified in the disciplinary hearing and
in the arbitration, the commissioner merely referred to her
as
“learner A” in the award. I shall do the same, or refer
to her simply as “the learner”.
[3]
The person to whom the learner referred as her mother – who
also testified at arbitration – is in fact her aunt,
but the
learner lived with her and she acted
in
loco parentis
.
[4]
President
of the Republic of SA v SA Rugby Football Union
[1999] ZACC 9
;
1999 (4) SA 147
(CC) para 48.
[5]
LRA s 138.
[6]
As he then was.
[7]
Naraindath
v CCMA & ors
[2000] 6 BLLR 716
(LC) para 26.
[8]
Naraindath
(supra)
para
31/
[9]
2009 (10 BCLR 1
(CC); (2008) 29
ILJ
2461 (CC) paras 61-66 (per Ngcobo J, as he then was).
[10]
(2013)
34
ILJ
2347 (LC).
[11]
(2000)
21
ILJ
2649 (LC) para 7.
[12]
Sidumo
v Rustenburg Platinum Mines Ltd
(2007) 28
ILJ
2405
(CC).
[13]
Herholdt
v Nedbank Ltd
2013 (6) SA 224
(SCA); (2013) 34
ILJ
2795 (SCA) 2806 A-D para 25.
[14]
Supra
para 33-34.
[15]
Act 45 of 1998.
[16]
Du
Toit et al,
Labuor
Law through the Cases
(LexisNexis)
sv s 138.
[17]
(2012)
33
ILJ
942 (LC) at par 31, with reference to S v Carolus 2008 (2) SACR 207
(SCA).
[18]
Supra.
[19]
[2000] 7 BLLR 751
(LAC).
[20]
At
754D.
[21]
[2000] 12 BLLR 1411
(LC) para 8.
[22]
LRA s 162.