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[2015] ZALCD 31
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Kimar Supplies CC v Dlamini and Others (D1151/12) [2015] ZALCD 31 (29 May 2015)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT DURBAN
Reportable
Case No:
D1151/12
In the matter between:
KIMAR SUPPLIES
CC
Applicant
and
ZWELONKE RICHARD
DLAMINI
First Respondent
KEGAN MANICKUM MODLEY
N.O
Second Respondent
CCMA
Third Respondent
Heard:
17 February 2015
Delivered:
29 May 2015
Summary:
Review - evaluation of evidence -
corroboration - putting a version to a witness – the
commissioner’s duty to ask questions
not dealt with by lay
representatives
JUDGMENT
WHITCHER J
Introduction
[1]
This is an application to review and set
aside the award handed down by the second respondent (the
commissioner) in which award
he concluded that the dismissal by the
applicant of the first respondent (Dlamini) was unfair and ordered
that the applicant reinstates
Dlamini retrospectively and in addition
ordered that the employee be paid back pay amounting to R7 500.00.
Factual Background
[2] Dlamini was dismissed
by the applicant after being found guilty of the following charge:
“Despite numerous instructions
not to do so, you again stopped
work at least 45 minutes prior to work ending. When confronted by Mr
Grant, you became aggressive
and threatening towards him”.
[3]
The applicant conducts business as a floor sanding service and
employed Dlamini as a general operator since October 2011. The
employees report directly to site for work each day.
[4]
The sole member of the applicant, Rob Grant, testified that on 15
August 2012, Dlamini and another employee, Ngcobo, arrived
at the
applicant’s offices asking for dust masks and transport money,
which Grant, the previous day, indicated to them that
he would
deliver to site. He angrily asked them: “What the f…are
you doing here”.
[5]
He then attended the site at 15h45, only to find Dlamini and
Ngcobo in the kitchen, fully changed and ready to leave work.
Their usual closing time is 16h30. He told them that they would be
paid to 15h30, which is when he estimated they had finished
work.
[6]
In its heads of argument, the applicant states that Grant also
told Dlamini he would not be paid for the days he had previously
missed in the week. There is no trace of evidence from Grant to this
effect in the record.
[7]
Grant testified that as he walked out of the kitchen and into the
warehouse, Dlamini followed him, demanding his full pay.
Ngcobo
had remained in the kitchen. Dlamini pointed a finger at his
face, in close proximity, and said: “
You will pay me or else
you will see”
. Grant asked him if he was threatening him,
and Dlamini again pointed his finger at Grant, saying: “
You
will see, you will see”
. Grant said he felt extremely
threatened by the conduct of Dlamini, and suspended him from
employment pending a disciplinary enquiry.
The clear impression
created in Grant’s version is that he suspended Dlamini the
moment after the threat was uttered when
they were still alone in the
warehouse.
[8]
Grant said he did not trust Dlamini any longer. Dlamini had phoned
him twice to ask for his job back but the threat he suffered
made a
continued employment relationship impossible with Dlamini. It was put
to Grant in cross-examination that Dlamini denied
threatening him.
[9]
In his testimony Dlamini confirmed that he and Ngcobo were already
dressed to go home when, shortly before 16h00, Grant attended
the
site. He further confirmed that Grant expressed his unhappiness
about them being ready to go. Grant then took him to
inspect the
site. After the site inspection, Grant was on the phone. When the
call ended, Grant became upset and said “he
doesn’t want
us on the site again”. He left the site as instructed.
The day after the incident, while he was
on his way to work he
received a call from Ngcobo to advise him that if he came to the site
the police would be called. He turned
back. Later he received a
suspension letter via his wife. Dlamini’s narrative of events
did not mention the threat, nor was
he cross-questioned on it.
[10]
Ngcobo testified on behalf of Dlamini. He said he did not see or hear
any altercation between Dlamini and Grant. He conceded
that Dlamini
and Grant had, for a time, been alone together in the warehouse.
The impression Ngcobo gave in his evidence
was that the period when
Dlamini and Grant were out of his earshot was before Grant expressed
his unhappiness about them finishing
work early. Grant first
asked Dlamini to show him how much work was done. Under
cross-examination Ngcobo seemed to
claim that Grant berated and
suspended Dlamini in his presence and that Grant and Dlamini were not
alone thereafter. Grant told
them both he did not want to see them on
site again. However Grant later approached Ngcobo and told him
that he was exempt
from this instruction. On arriving at work on the
day after the incident, he was told by the site manager that if
Dlamini came
to work, the police would be called. He telephoned
Dlamini, who he understood was on his way to work, to tell him this.
Dlamini did not arrive for work.
[11]
T
he applicant takes particular issue with the commissioner’s
consideration of Dlamini’s version as having been corroborated
by Ngcobo. Even if there was corroboration, the applicant
argues, it was weak and ought not to have been used to the exclusion
of other factors that a reasonable adjudicator should have had regard
to in deciding this dispute of fact. This issue and the other
challenges to the award are dealt with below under separate headings.
[12]
I
n
Gold
Fields Mining SA Ltd (Kloof Gold Mine) v CCMA and Others
[1]
the LAC stated:
‘
Where
the arbitrator fails to have regard to the material facts it is
likely that he or she will fail to arrive at a reasonable
decision.
Where the arbitrator fails to follow proper process he or she may
produce an unreasonable outcome (see
Minister
of Health and Another v New Clicks South Africa (Pty) Ltd and Others
2006 (2) SA 311
(CC)). But again, this is considered on the totality
of the evidence not on a fragmented, piecemeal analysis. As soon as
it is
done in a piecemeal fashion, the evaluation of the decision
arrived at by the arbitrator assumes the form of an appeal. A
fragmented
analysis rather than a broad-based evaluation of the
totality of the evidence defeats review as a process.’
[13]
When
deciding a dispute of fact between two mutually destructive versions,
an adjudicator must consider the credibility of the various
witnesses, the reliability of their observations and the inherent
probabilities of their versions.
[2]
[14]
One factor that gives weight to the veracity of a witness’
version, and which an adjudicator may rightly take into account
in
deciding a dispute, is whether a claim is independently corroborated
by another witness or by documentary evidence. Where
other
elements of believability are absent, corroboration may be the only
and thus decisive evidence used to decide where the overall
probabilities lie. The decisiveness of a particular piece of
evidence is a feature, it is safe to say, that comes into play
more
often in cases, such as the present one, that are decided on a
balance of probability.
[15]
In this matter, the commissioner was not provided with much in
the way of inconsistent or contradictory evidence discrediting either
version. Despite efforts to cast Ngcobo as an evasive witness,
demeanour similarly provided no basis upon which, one way
or the
other, a credibility finding could be made.
[16]
In a case with few common cause factual landmarks, the decisive issue
for the commissioner then becomes, whether a specific
part of the
conversation between a displeased Grant and the already dressed
Dlamini, shortly before 16h00, occurred in the presence
of Ngcobo or
not. The commissioner understood Ngcobo to testify that he was
present when Grant berated Dlamini and then proceeded
to suspend
him. During this time, Ngcobo heard no threat at all.
Ngcobo’s evidence therefore functioned to corroborate
Dlamini’s
version and timeline of events.
[17]
In the absence of other factors upon which to base an assessment of
the relative weight of the opposing versions, this piece
of
corroboration tipped the scales for the commissioner. It is not
the only ground of review, but the main one is whether
a reasonable
decision-maker would have relied solely on the corroboration of
Ngcobo to decide this matter and, in fact, whether
it was
corroboration at all.
The
commissioner’s ‘criticism of Grant not calling
corroborating witnesses
[18]
The applicant faults the commissioner for criticising Grant for not
indicating whether the incident was witnessed by anyone,
and if so,
by whom, and that he did not call any witnesses to confirm or
substantiate the veracity of the incident. This ground
of review is
based on a misreading of the award and is consequently dismissed.
[19]
A proper reading of the award shows that the commissioner did not
criticize. He merely noted that there was no corroboration
for
Grant’s version. This is part of the process of evaluating and
weighing different versions. The commissioner contrasted
Grant’s lack of corroboration with Dlamini’s version
which, he believed, enjoyed corroboration from Ngcobo. The brute
fact
is that, all else being equal, a corroborated version enjoys greater
weight than that of an uncorroborated one.
[20]
The commissioner did give a reason for accepting one version above
another. He did not delve as deeply into the issues
as he could
have, but the reason is clear and accurate enough. In deciding
the dispute of fact between Grant and Dlamini,
he preferred the
corroborated version.
The
commissioner should not have treated Ngcobo as a corroborating
witness
[21]
In argument, the applicant presented Ngcobo’s evidence as a
series of concessions that Dlamini could well have threatened
Grant
when they were in the middle of the warehouse in the absence of
Ngcobo. This construction of the evidence seems selective.
[22]
The first ‘concession’ the applicant identifies is in
response to a very general question: “Is there any
circumstance
whereby (Dlamini) is very aggressive and pointing his boss here with
his finger”. To this, Ngcobo answered:
“I didn’t
see”, meaning that he did not see Dlamini being aggressive.
His answer is not, without further
clarification, an admission that
Ngcobo might easily have missed seeing such aggression. Ngcobo is
then asked to confirm that Grant
and Dlamini were alone at some
point. Ngcobo’s answered “I don’t remember”
and “I do not recall
that”. The employer
representative asked: “I’m asking after the shouting
about ‘Why are you dressed?’
and ‘Why are you going
home early?’ did (Dlamini) leave the room with the employer, or
follow the employer out of the
room?” Ngcobo answered: “We
were already leaving and then we left with (Dlamini)”. Ngcobo’s
answers are,
in my opinion, more in the way of denials of the
timeline put to him and a denial of the notion that an opportunity
existed for
the threat to be made in his absence. I can fully
understand how a commissioner would not treat these answers as either
being evasive
or concessions of some sort.
[23]
Ngcobo’s evidence must be viewed in its totality. Under
cross-examination, unfortunately mired in misunderstanding
and
imprecision, the final timeline that Ngcobo provided was: (i) Grant
arrived shortly before 16h00 and finds both workers dressed;
(ii)
Grant and Dlamini inspected the work in the warehouse with Ngcobo
remaining behind; (iii) Dlamini returned to where Ngcobo
is, saying
that Grant was still on the phone; (iv) then Grant reappeared and
shouted at them both.
[24]
Logically, Dlamini’s threat could only have come
after
Grant chastised the workers. Therefore, Ngcobo’s final
answer on this question essentially functions as a denial that
there
was an opportunity for Dlamini to have privately threatened Grant.
According to Ngcobo, he and Dlamini were already
leaving the site as
instructed directly after being chastised.
[25]
Ngcobo specifically corroborates Dlamini’s evidence that he was
suspended in the presence of Ngcobo. Grant, on
the other hand,
indicated that he suspended Dlamini directly after the threat, when
they were still alone in the middle of the
warehouse. Grant did
not mention any contact with Dlamini after suspending him, such as
suspending him again in the presence
of Ngcobo. The likelihood of a
second encounter between Dlamini and a recently threatened and
fearful Grant is also slim.
[26]
It was a reasonable finding that Ngcobo corroborated Dlamini’s
general, if implied, denial that he threatened Grant.
Ngcobo
certainly did not concede that, after Grant chastised Dlamini for
finishing work early, there was a meaningful opportunity
for Dlamini
to threaten Grant without Ngcobo observing it.
[27]
An ancillary challenge is whether the applicant was provided with a
fair opportunity to discount the corroborating evidence
while still
presenting its case. In other words, was Ngcobo’s version
put to the applicant’s witnesses?
The requirement that a
party ought to put its version to opposing witnesses is there to
prevent a party ambushing its opponent
with novel testimony. It also
prevents having to recall witnesses to deal with new allegations.
It is a reviewable irregularity
to rely on evidence not put to the
opposing side’s witnesses, assuming that the witnesses were in
a position to comment on
that version.
[3]
[28]
There is nothing in the record to indicate that Grant was confronted
with the details of Ngcobo’s specific timeline.
However,
crucially and distinguishably, these details only emerged in answers
flowing from Ngcobo’s cross-examination. One
of the hazards of
cross-examination is that a representative’s questions may
supply a platform to an opposing witness to
provide detail adverse to
the questioner’s case. While the details of Ngcobo’s
version, elicited in cross-examination,
were not put to the Grant,
the applicant had ample warning that a corroborating witness was
going to be brought. The applicant’s
first witness was
Jackson. He was its legal representative at the CCMA and also
the chair of the disciplinary hearing that
dismissed Dlamini. Jackson
was reminded at length under cross-examination that Ngcobo was going
to be called as Dlamini’s
witness. It was put to Jackson
that Ngcobo’s evidence did not support the existence of any
threat.
[29]
Any party faced with the existence of a witness still to be called to
corroborate the version of their opponent must consider
their
position carefully. Do they bring witnesses that may
corroborate parts of their own version too or do they rely on
their
ability under cross-examination to discredit the corroborating
witness? The applicant seems to have adopted the latter strategy.
This is understandable given the evidentiary cards it was dealt in
prosecuting an allegation which, on its own version, happened
in
private. Having said that, it was open to the applicant to
tender evidence from the site manager that Grant indeed behaved
as
one who had just had his life threatened directly after speaking to
Dlamini in the middle of the warehouse. If it existed,
this
sort of evidence, on the probabilities, may have counter-balanced the
import of what Ngcobo had to say at the CCMA.
[30]
I find that because Ngcobo’s detailed evidence was only
elicited under cross-examination, it did not have to be put to
the
applicant’s witnesses. Indeed, it could not be put as
Dlamini’s representative would not have known this
evidence
would be elicited by his opponent.
[31]
Having found that Ngcobo’s evidence constituted admissible
corroboration, the next question is whether the commissioner
committed a reviewable irregularity in not discounting the value of
the corroboration on the basis that it came from a biased source.
The
weight given to corroborating evidence is inextricably linked to the
independence or otherwise of the corroborating witness.
Grant’s
founding affidavit takes issue with Ngcobo’s potential bias
towards Dlamini. He states Dlamini and Ngcobo were
clearly friends,
if not accomplices, and both had the same complaint about not being
paid. A reasonable decision-maker would
have dealt with the
evidence of Ngcobo with extreme caution – something the
commissioner failed to do.
[32]
There is no evidentiary basis for this attack on the credibility of
Ngcobo. At most, it was only put to Ngcobo that he
was a
“colleague” of Dlamini and nothing more. I am not
sure what other affinity Ngcobo and Dlamini share that
the
commissioner was meant to understand was apt to breed perjury on
Ngcobo’s part and thus cause his evidence to be approached
with
“extreme caution”. Given that Ngcobo is still in
the employ of the applicant, any collegial loyalty he may
be said to
have towards Dlamini may just as easily be counter-balanced by an
economic dependence on an employer whose disfavour
it is sensible to
avoid. The insinuation that Ngcobo may even have been an
accomplice in the events underlying the charge
against Dlamini is not
well founded at all.
[33]
In dealing with Ngcobo’s evidence as viable corroboration, the
commissioner dealt with the evidence in a reasonable manner.
This
ground of review is dismissed.
The
commissioner criticised the applicant for not putting its version to
Dlamini
[34]
In the award the commissioner states: “[Dlamini] on the other
hand when leading evidence, made no mention whatsoever
of the
[applicant’s] allegation of him pointing his finger in close
proximity to Grant’s face and of threatening him.
He
neither confirmed nor denied the allegations. Under
cross-examination, the [applicant] did not put these allegations to
[Dlamini] for a response”. This paragraph did not, in my
opinion, constitute a portion of the commissioner’s reasoning
that was at all significant in making the decision he did. The
commissioner did not, for instance, rule out the applicant’s
accusations on the technicality that its version was not put to
Dlamini. It is clear from his award, read holistically, that
the commissioner regarded the applicant’s allegations against
Dlamini as perfectly admissible.
[35]
The commissioner’s actual point seems to be that evidence in
support of - or against - the charges in this case was fairly
weak.
The phrase “on the other hand” links the complained-about
portion of the award to a preceding paragraph
in which the
commissioner mentioned that Grant’s version lacked
corroboration. The commissioner goes on to say that “on
the
other hand” Dlamini’s denial that he threatened Grant was
also rather oblique. The commissioner immediately
qualifies
this implicit criticism of Dlamini’s evidence with the remark
that the threat was also not pointedly canvassed
with him under
cross-examination. The applicant’s submission that it was
incumbent on Dlamini, having heard Grant’s
evidence, to
expressly deny the allegation that he made a threat is, in my view,
incorrect. The obvious implication of Dlamini’s
evidence-in-chief was that he did not threaten Grant. It was
also put to the applicant’s witness that there was no
threat.
[36]
The commissioner perhaps used the phrase “did not put these
allegations to” a bit loosely, thus, if read in isolation,
invoking a breach of a rule rather than a missed opportunity in
litigation. If the applicant had pressed Dlamini on making the
threat
in cross-examination, perhaps inconsistencies, contradictions or
improbabilities may have arisen which could have discredited
him and
benefitted the applicant’s case. Read in context, rather than
criticising the applicant, the commissioner was drawing
attention to
the paucity of evidentiary material upon which he was required to
base his decision. In the end, the quality
of the evidence was
such that he could only dispose of the dispute, on the probabilities,
by finding for the party which had some
corroboration for its
version. He made a decision based on the only meaningful indicator of
weight available to him.
The
commissioner failed to ask questions not dealt with by the lay
representative
[37]
I agree that a commissioner must advise and assist unrepresented
litigants at each of the major cross-roads in a case, but
not how to
take every curve along the way. To hold otherwise would impose an
impossible analytic burden upon commissioners.
Not only would
they need to ensure procedural fairness and take down evidence, they
would have to notice the import of an absent
question and inform the
relevant party of the risks this posed to their case in a way that
still preserved the appearance of impartiality.
Furthermore,
‘holes’ in a case may only become apparent to a trier of
fact when he or she weighs the evidence up at
the end of
proceedings.
[38]
In any event, I have my doubts that the applicant qualifies as being
thought of as unrepresented. Its representative,
Jackson, is
not an attorney. However, he mentioned his fourteen years’
experience in conducting fair disciplinary hearings
as an employer
organisation’s official. On perusing the substance of his
evidence, it seems reasonable that the commissioner
regarded him as
someone far beyond the level of a total lay-person. I am reminded of
the test for allowing legal representation
in dismissal disputes in
the CCMA. One ground for permitting legal representation is if
there is a mismatch in the “comparative
ability
”
of the parties. The test is not comparative qualification. A
legally unqualified representative, such as Jackson,
may hold himself
out to be – and indeed perform – at the same level as a
qualified practitioner. I do not
think the failure to
coach or advise such a representative would, in fairness, constitute
a valid ground of review.
[39]
In any event, the commissioner did not disqualify any evidence
brought by the applicant as a result its ‘failure’
to ask
Dlamini about the threat.
Grant’s
instruction to call the police favours the probability that a
threatening incident occurred
[40]
The applicant argues that “there would have been no reason to
call the police had Grant not been threatened and feared
for the
safety of himself and his equipment”. The applicant
argues further that both Dlamini and Ngcobo admitted that
an
instruction was issued that the police should be called if Dlamini
returned to site. This is hardly an admission as I
can find no
place in the evidence of Grant where he himself states that he
instructed the site manager to call the police should
Dlamini
reappear after being suspended. He does not mention this issue
in his founding affidavit either. There is no
other direct
evidence that Grant issued any instruction to summon the police. With
Grant not having made this claim himself as
evidence of how scared he
was, the commissioner rightly did not give it much weight in
supporting the probability of the applicant’s
version. This
argument seems to emerge only after a perusal of the transcript of
the evidence of Dlamini and Ngcobo who mention
what the site manager
told Ngcobo the day after Dlamini’s suspension.
[41]
The timing of this instruction is also relevant in assessing the
extent to which it may have bolstered the probability of the
applicant’s case. Neither Dlamini nor Ngcobo claim that
Grant told the site manager, on the day in question already,
that
Dlamini was not to return to work on pain of the police being
called. According to Dlamini, his first inclination that
the
police would be called if he came to work happened the next morning.
He heard this from Ngcobo who phoned to advise that he
had just
learnt that the police were to be called from the site manager
himself. The earliest evidence there thus is of any
talk of
calling the police is around 07h00 on the next day. The less
evidence there is of spontaneity in invoking the police,
the greater
the chance for cynicism to creep in and, thereby, an action meant to
show state of mind loses evidentiary weight. We
thus have no evidence
from Grant himself that he was so moved by the threat he received
from Dlamini that he immediately issued
an instruction to the site
manager to call the police should Dlamini reappear. This
instruction, coming second hand from
Ngcobo, moreover, could have
been issued at any time before 07h00 the next morning. It is within
the band of reasonableness for
a decision-maker to have discounted
the import of this evidence, especially when weighed against Ngcobo’s
corroborated version
that, at the time Dlamini was chastised and
suspended by Grant, Dlamini did not threaten Grant.
Failure
to draw an adverse inference from Dlamini’s conduct of his
disciplinary hearing
[42]
Dlamini did testify at his internal hearing and was cross-examined.
The commissioner was criticised for failing to draw
an adverse
inference from Dlamini’s election not to question Grant, make
mitigating arguments or sign documents at his disciplinary
hearing.
This ground of review is dismissed because Dlamini’s stated
reasons for his action are not so frivolous as to suggest
that he was
hiding something. They were about his understanding of the
disciplinary process, his suspicions about the absence of
witness
statements and having to sign documents along the way.
Not
considering other charges
[43]
Dlamini was charged with gross misconduct “in that you, despite
numerous instructions not to do so, have again stopped
work at least
45 minutes prior to work ending. When confronted by Mr Grant,
you became aggressive and threatening towards
him. This is
totally unacceptable to your employer”. This is essentially two
charges wrapped into one; the threat and
absenteeism.
[44]
The applicant, in its heads of argument, states that Dlamini was
already on a warning for previous attendance related offences.
I have searched the record in vain for evidence to substantiate this
claim. As far as the commissioner was aware, the employee
was in fact
on no valid warning for absenteeism. Review proceedings are not
the place to raise evidence not led at the CCMA.
Reinstatement
as Relief
[45]
The applicant disputes the reasonableness of reinstatement as relief,
stating,
inter alia
, that the commissioner provided no reason
whatsoever for such an award. The commissioner, in my view does
not have to justify
reinstatement. It is the default award for
a substantively unfair dismissal. The applicant ought to have
made a case
for a departure from reinstatement, in terms of the
factors justifying exception listed in section 193 (2) of the LRA.
The fact
that Grant was fearful of Dlamini and had lost trust in him
cannot logically serve as a basis to deny reinstatement. This
is because, in arriving at the finding that the dismissal was
substantively unfair, the commissioner, on a balance of probability,
rejected the evidence that an incident occurred to make Grant fearful
and lose trust in the employee.
[46]
The applicant further argues that the evidence of Grant that he felt
threatened, was fearful and that there was no trust any
longer was
not disputed by Dlamini. The suggestion is therefore that this
evidence ought to have been accepted as is. I do
not agree.
Dlamini’s representative put it to Grant that Dlamini did not
threaten him, thus although indirectly, Dlamini
denied threatening
Grant. His timeline of events excluded any period during which he was
in a heated exchange with Grant.
The applicant did not explore
the threat in cross-examination and obtain any concessions which
would have made its occurrence more
likely. It would be
artificial to say that Dlamini never denied the accusation. To
use an analogy: once an accused
denies assaulting an accuser, he is
not required to specifically also take issue with the amount of pain
the accuser alleges he
felt or how scared the accuser allegedly was.
[47]
The amount of time that Dlamini worked at the applicant, less than a
year, is entirely irrelevant to determining relief.
The
suggestion that it is a reasonable decision-maker would have taken
this into consideration to deny reinstatement verges on
being a
frivolous argument.
The
failure to deal with allegations of procedural unfairness
[48]
Dlamini’s allegations of procedural unfairness were not dealt
with by the commissioner in the award. The applicant regards
this as
a material omission in the proceedings and further impacts upon the
ultimate sanction handed down.
[49]
If the commissioner had found the dismissal to be substantively fair
but neglected to rule on this other claim, raised
by the dismissed
employee
, this would have been a reviewable omission. This
is because the omission had a material effect on the outcome for the
complaining
party. Put differently, the wrong party is
complaining about this issue. The omission in this case had no
material effect
on outcome. The default relief for a
substantively unfair dismissal is reinstatement. Any
compensatory relief for additional
procedural unfairness that might
have been granted was subsumed into the amount ordered to be paid
in
lieu
of retrospective wages. If, on the other hand, the
commissioner had found the dismissal to be procedurally fair, no
deduction
was owing to the applicant in the amount of back pay
ordered.
[50]
The commissioner’s oversight, while not ideal, is
understandable in circumstances where a finding of substantive
unfairness
was made. In not making a finding on the allegation
of procedural unfairness, the applicant has not shown that the
commissioner
deprived it, within reason, of a negative credibility
finding against Dlamini. The issues in dispute on procedure were
about Dlamini’s
understanding of the disciplinary process and
his subjective assessment that he would not get a fair hearing. In my
opinion, the
fact that the commissioner did not formally dispose of
this alleged ground of unfairness does not disclose any deficiency on
the
part of the commissioner and the way he dealt with the evidence
that is transferable to other parts of the award.
Conclusion
[51]
The commissioner gave a very short reason for finding that the
employer had not discharged the onus of proof which lay upon
it.
One version was partially corroborated, the other not. A detailed
review of the commissioner’s findings, read in
conjunction with
the record, shows that he might have raised and then discounted
certain evidentiary questions arising from the
facts. Most of
these questions melt like mist when exposed to the glare of legal and
logical analysis. It must thus
be assumed that his failure to
go down these blind alleys was precisely because they went nowhere
and detracted from facing up
to the inevitable final destination,
which he arrived at along the simplest route.
[52]
While the reasons for certain findings of fact made in CCMA awards is
sometimes obscure and insufficient, and the task then
falls to a
reviewing court to opine on how the evidence should have been
analysed, the opposite situation should also be discouraged.
When a commissioner gives a concise and, ultimately, fair and
accurate reason for his or her decision, this should not be an
invitation
by the losing party to seek the intervention of this court
because the Commissioner did not
fully
apply his or her mind.
[53]
I pause to note that it may well be that Dlamini threatened Grant.
Unfortunately, if this is the case, this is one of
those matters
where there is insufficient evidence to sustain that allegation on a
balance of probability. On the employer’s
version, it was
an incident unseen by anyone but the two protagonists. On the
other hand, the employee has a corroborating
witness. The
commissioner, in my opinion, acted as what a reasonable
decision-maker would have in disposing of the matter
on this simple
basis.
Ruling
[54]
The Second Respondent’s finding that the dismissal was
substantively unfair is confirmed. The applicant’s
grounds of review are dismissed.
____________
WHITCHER
J
Labour
Court of South Africa
APPEARANCES:
FOR THE
APPLICANT:
J Forster of Foster Attorneys
FOR
THE FIRST RESPONDENT:
M Jama: union official:
PTAWU
[1]
(2014)
35 ILJ 943 (LAC).
[2]
See
Stellenbosch
Farmers Winery v Martell et cie
2003 (1) SA 11
(SCA) at 5
).
[3]
See
SA
Nylon Printers (Pty) Ltd v David
(1998) 2 BLLR 135
(LAC).