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[2015] ZALCD 43
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Department of Education, KZN v Dorasamy and Others (D265/2013) [2015] ZALCD 43 (31 July 2015)
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REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Case
no: D265/2013
DATE:
31 JULY 2015
Not
Reportable
In
the matter between:-
DEPARTMENT
OF EDUCATION,
KZN
...............................................................................
Applicant
And
COMMISSIONER
A. S.
DORASAMY
.......................................................................
First
Respondent
EDUCATION
LABOUR RELATIONS
COUNCIL
..............................................
Second
Respondent
S
J
ZUMA
....................................................................................................................
Third
Respondent
Heard:
17 July 2014
Delivered:
31 July 2015
Summary:
Application for review of arbitration award.
Judgment
HASLOP
AJ
[1]
The applicant has applied to this Court for the review and setting
aside of an arbitration
award by the first respondent who found that
the dismissal of the third respondent by the applicant was
procedurally and substantively
unfair and directed the applicant to
reinstate him with effect from 1 March 2013 and to ‘place him
in a suitable position’.
He further directed that the third
respondent would forfeit his remuneration and benefits for the period
between the date of dismissal
and the date of reinstatement.
[2]
The third respondent was an educator employed by the applicant at the
Cosmos Primary
School.
[3]
He was dismissed following a disciplinary enquiry at which he was
charged with having
committed the following misconduct:
‘
Charge
1: On or about 11 May 2010 at or near Hilton Intermediate School you
committed an act of sexual assault on a learner [A……..]
[M……….] in that you asked her to come inside the
cottage and closed [sic] the door behind her and she refused,
then
you closed the door and started touching her, pulling her towards the
bed and thereby contravening section 17 (b) of the Employment
of
Educators Act, as amended.
Alternatively
On
or about 11 May 2010 at or near Hilton Intermediate School, while on
duty you conducted yourself in an improper, disgraceful
or
unacceptable manner in that you asked a learner [A……….]
[M……….] to come inside the
cottage and close the
door behind her and she refused, you closed the door and started
touching her, pulling her towards the bed
and thereby contravening
section 18 (1) (q) of the Employment of Educators Act, as amended.
Charge
2: On or about 7 May 2010 at or near Hilton Intermediate School,
while on duty you conducted yourself in an improper, disgraceful
or
unacceptable manner in that you attempted to romance a learner A……..
M………… by touching
her and thereby
contravening [sic] section 18 (1) (q) of the Employment of Educators
Act, as amended.’
[4]
The presiding officer of the disciplinary enquiry found that ‘it
is quite evident
that Mr Zuma is guilty of the charges brought
against him and I accordingly find that he is guilty as charged’.
He did not
specify, in respect of the first charge, whether the third
respondent was found guilty of the main charge or its alternative but
he found that the conduct warranted the sanction of dismissal.
[5]
The victim of the alleged misconduct, A……… M…….,
is a young girl, just in Grade 5 at the time of the allegations. When
the matter came before the first respondent in arbitration
proceedings it seems that her parents had decided that it would not
be in her best interests to testify, even though she had testified
at
the disciplinary hearing.
[6]
The parties’ representatives then advised the arbitrator that
they did not intend
to tender oral evidence at the arbitration.
[7]
According to paragraph 2 of the arbitration award, the parties agreed
that the ‘evidence
as recorded by the presiding officer would
be the evidence for the arbitration process’.
[8]
The record contains neither a transcript of the evidence led at the
disciplinary hearing,
nor even the presiding officer’s notes of
the evidence. The only ‘record’ of that evidence is the
summary contained
in the presiding officer’s findings, and that
is relatively perfunctory.
[9]
Indeed, it is not even complete. The index to the record placed
before the court reflects
that the presiding officer’s findings
are to be found from page 29 to page 34 of the relevant bundle. Page
29 is indeed the
first page of the findings, and page 34 the last.
However, the paragraph numbering within those pages is not
sequential. The paragraph
following paragraph 2.7 is numbered 2.16.
The summary of evidence contained in the findings appears largely to
leave out the evidence
of the second witness for the employer.
[10]
It is not clear from the arbitration award whether this apparently
incomplete document is the one that
was handed to the arbitrator by
the parties. One assumes that it was, since the pages before the
court are sequentially numbered
in two places, one for the review
application and one, presumably, for the arbitration proceedings.
There is, in fact, an index
to the arbitration record among the
papers and this appears to support the likelihood that there is not
simply a page missing from
the court’s copy of the record.
[11]
The arbitration award itself is difficult to follow, as the
arbitrator appears to have included the
complete written submissions
of the two parties in his award in the midst of the award itself.
Those submissions do mention the
‘missing’ witness, whose
name appears to be N……..…, but the award does
not do so independently
of the submissions.
[12]
It is possible that the arbitrator did not notice that there was a
page missing from the ‘record’
of the evidence that he
was meant to consider. In that event the arbitrator did not consider
all of the evidence placed before
him in accordance with the parties’
agreement as he recorded it, and, if that is the case, the award
should be set aside
on those grounds alone.
[13]
But even if the findings document given to the arbitrator was
complete and the missing page somehow
became detached before the
matter reached this court, there are significant problems with the
manner in which this arbitration
was conducted.
[14]
The first of these lies in establishing precisely what the agreement
between the parties was regarding
the evidence that the arbitrator
was to consider.
[15]
As I have mentioned, the award itself records that the parties agreed
on the following process:
‘
2.1
No oral evidence will be tendered.
2.2
The evidence as recorded by the presiding officer would be the
evidence for the arbitration
process.
2.3
....
2.4
The matter will be dealt with in the form of Heads of Arguments as
follows ....’
[16]
There then follows a time frame for the delivery by the parties of
their heads of argument. It appears
that it was those heads of
argument that were then incorporated by the arbitrator into the body
of his award as ‘RESPONDENT’S
SUBMISSION’ and
‘APPLICANT’S SUBMISSION’ respectively.
[17]
The employer’s submission states that the commissioner was
enjoined to consider ‘all the
evidence placed in front of him
(which) would include the evidence led at the disciplinary hearing
(which) is common cause and
forms part of the bundle’.
[18]
On the other hand, the employee’s submission, as incorporated
in the award itself, contains the
following statement:
‘
The
legal representatives of the parties then agreed that
only
the evidence of Nombulelo Nene, Mrs J I Mkhize and that of the
Applicant
were to be handed in by
consent. In this regard it was specifically pointed out that no other
portions of the chairperson’s
findings and or evidence could be
utilized, as the Respondent did not have any other witnesses present
and furthermore the Applicant
did not agree with the findings and the
other evidence contained in the findings as captured by the presiding
officer as this was
not a record of the internal disciplinary
proceedings.’
[19]
The underlined portion is underlined in the award itself, though it
is not indicated whether the underlining
was the arbitrator’s
own or the employee representative’s, as copied by the
arbitrator.
[20]
It seems clear from this that the parties were by no means in
agreement regarding precisely what material
the arbitrator should
consider in making his award. Oddly, having prefaced his award by
stating that the parties had agreed that
the evidence recorded by the
presiding officer would be the evidence in the arbitration, the
arbitrator states, at paragraph 9.15,
that there was no agreement
that the evidence of A………, the complainant in
the disciplinary case, would be
admitted. But he does not say whether
there was agreement that her evidence would not be admitted.
[21]
Nevertheless, having said that, he then dealt with the evidence of
Amanda anyway and decided to apply
the cautionary rule to that
evidence. It does seem strange that the parties might have
agreed to present evidence to the
arbitrator that excluded that of
the complainant and N…... who seems, from the presiding
officer’s summary, to have
been her companion at the time.
However, the arbitrator ought, at the very least, to have established
precisely what the agreement
was between the parties. If there
was in fact no common understanding as to what he was to take into
account, he ought to
have called for the parties to lead oral
evidence.
[22]
Clause 25.6.2 of the second respondent’s dispute resolution
procedure reads as follows:
‘
The
panellist appointed to arbitrate in the dispute must determine the
procedure to be followed in the arbitration in order to resolve
the
dispute as fairly and quickly as possible, but must deal with the
merits of the dispute with a minimum of legal formalities.
In this
respect the panellist may make any other direction to the parties
concerning the conduct of the arbitration.’
[23]
So, while the arbitrator has relatively wide powers regarding the
form the arbitration will take, and he
may dispense with certain
legal formalities, he nevertheless has to resolve the dispute as
fairly as possible, and he has to deal
with the merits of the
dispute.
[24]
To decide a case fairly in circumstances where the versions of the
parties are diametrically opposed
without having regard to any proper
evidence at all, and without even a written statement of such facts
as may be agreed, seems
to me to be an impossible task.
[25]
In
Arends
& others v SA Local Government Bargaining Council & others
[1]
the
Labour Appeal Court recently stated the following
‘…
When
parties desire to proceed without oral evidence in the form of a
special case, it is imperative
that
there should be a written statement of the facts agreed by the
parties, akin to a pleading ... The stated case must set out
agreed
facts, not assumptions. The purpose of the rule is to enable a case
to be determined without the necessity of hearing the
evidence.
An oral stated case predicated upon poorly ventilated and
potentially unshared assumptions as to the
facts defeats the purpose
of the requirements of a stated case and, as this case shows, will
lead to problematic results.’
[2]
[26]
It went on at para [17]:
‘
An
arbitrator faced with a request to determine a special case where the
facts are inadequately stated should decline to accede to
the
request.’
[27]
That case involved an interpretation rather than an unfair dismissal
dispute, and it will, by the very
nature of the dispute, be easier to
find common factual ground in such a matter, but it seems to me that
the principles informing
those statements must apply equally to
arbitrations such as this one.
[28]
I consider the situation in this matter to be quite different from
that where one of the parties elects
not to call a witness, or not to
lead evidence at all, or is unable for some reason to present certain
evidence but other evidence
is available. In that case the party
making the election would generally stand or fall by it, or would
have to overcome the absence
of a witness in some other way. That is
not what happened here. Here it seems that all of the witnesses were
available except for
the complainant, but the parties reached, or
perhaps did not in fact reach, an agreement the consequences of which
made it virtually
impossible for the arbitrator to deal with the
merits in such a way that a fair decision could be reached.
[29]
It is not necessary for me to deal with the applicability of the
cautionary rule, or the way the arbitrator
dealt with the question of
hearsay, or indeed with his assessment of the ‘evidence’
generally, for at least two reasons,
which I state at the risk of
repeating myself.
[30]
The first is that if there was no agreement concerning the material
to be considered by the arbitrator
in the absence of oral evidence,
he should not have proceeded without such an agreement or without
hearing oral evidence.
And, if there was any doubt as to what
that agreement was, the arbitrator should first have established
precisely what the agreement
was before proceeding. As I have already
said, it is clear from the award itself that the arbitrator was aware
of a dispute in
this regard before he made his finding on the merits
of the matter.
[31]
Secondly, the so-called evidence available to the arbitrator from a
reading of the presiding officer’s
findings was not evidence at
all, but the presiding officer’s own summary of the evidence
that he heard. There was no way
that the arbitrator could have known
to what extent that summary captured the evidence that was actually
led. It ought to have
been clear to him that the summary was
hopelessly inadequate to allow him to come to a proper conclusion in
a matter where there
were clearly radically different versions of
what had actually transpired.
[32]
The employee had also complained that his dismissal was procedurally
unfair. The arbitrator found that
it was, but it is not particularly
clear whether it was because the employee had not been permitted
legal representation at his
disciplinary hearing of because the
presiding officer had not advanced reasons for refusing legal
representation, or both.
[33]
I do not follow his reasoning either. He referred to the well-known
case of
Avril
Elizabeth Home for the Mentally Handicapped v Commission for
Conciliation Mediation & Arbitration & others
[3]
,
and mentioned the principles set out in that case. He seems not to
have found fault with the employer’s disciplinary process
with
reference to any of those principles.
[34]
However, he then referred to the question of legal representation and
referred to the case of
Law
Society of the Northern Provinces v Minister of Labour &
others
[4]
.
The decision in that case, which was eventually overturned on appeal,
although only after the arbitrator delivered his award in
this
matter, dealt in any event with legal representation at the CCMA. Its
relevance to internal disciplinary hearings is not clear
from the
award.
[35]
The well-established test of review of an arbitration award such as
this is the one set out by the
Constitutional Court in paragraph 110
of the judgment in
Sidumo
and another v Rustenburg Platinum Mines Ltd and Others
[5]
, namely whether the decision
reached by the commissioner is one that a reasonable decision-maker
could not have reached.
[36]
If it is, then the award must be reviewed and set aside. If not, it
stands.
[37]
The Supreme Court of Appeal then explained the role of the reviewing
court in the light of that decision.
In
Herholdt
v Nedbank Ltd
[6]
Cachalia and Wallis JJA
stated the following :
‘
That
test (the test in
Sidumo
)
involves the reviewing court examining the merits of the case ‘in
the round’ by determining whether, in the light
of the issue
raised by the dispute under arbitration, the outcome reached by the
arbitrator was not one that could reasonably be
reached on the
evidence and other material properly before the arbitrator (a more
stringent test than asking whether the decision
is one that the
arbitrator could reasonably reach). On this approach the reasoning of
the arbitrator assumes less importance than
it does on the SCA test,
where a flaw in the reasons results in the award being set aside. The
reasons are still considered in
order to see how the arbitrator
reached the result. That assists the court to determine whether that
result can reasonably be reached
by that route. If not, however, the
court must still consider whether, apart from those reasons, the
result is one a reasonable
decision-maker could reach in the light of
the issues and the evidence.
’
[38]
Of course, an award is reviewable under section 145 (2) (a) of the
LRA if the commissioner committed
a gross irregularity in the conduct
of the arbitration proceedings. In
Herholdt
[7]
,
the SCA considered what this means and summarised the position as
follows in paragraph 25:
‘…
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.
’
[39]
Because of the problems with the evidentiary material that was placed
before the arbitrator I am of
the view that a reasonable
decision-maker could not have come to the same conclusions as the
first respondent, because a reasonable
decision-maker would have
required that the parties place material before him that would have
enabled him to properly assess the
facts of the dispute and, if the
parties were unable to do so, would have required them to lead oral
evidence. If one of the parties
was unable to do so, a reasonable
decision-maker would then have assessed such evidence as he had heard
in accordance with the
rules of evidence, including the rules
applicable to hearsay evidence.
[40]
It was argued that, given the fact that the complainant’s
parents are unlikely to be persuaded
to allow her to testify, there
is no point in referring the matter back for re-hearing before
another arbitrator. I disagree. This
court is faced with the same
problem regarding the evidence as faced the first respondent. Nor
does it know what the agreement
was between the parties regarding the
presentation of that evidence. Indeed, it is not even in possession
of all of the evidence
‘recorded’ by the presiding
officer, because of the missing page in the record.
[41]
In the circumstances, I make the following order:
1.
The arbitration award dated 18 February 2013 and issued by the first
respondent
under the second respondent’s case number PSES
689-11/12 KZN is hereby reviewed and set aside.
2.
The second respondent is directed to re-enrol the matter for
arbitration before
an arbitrator other than the first respondent.
3.
There is no order as to costs.
Haslop, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
F
or
the Applicant
:
L Naidoo
Instructed
by: The State Attorney, Durban
For
the Third Respondent: P J Blomkamp
Instructed
by: Govindasamy Ndzingi & Govender Inc, Pietermaritzburg
[1]
(2015) 36
ILJ
1200 (LAC).
[2]
at para [15].
[3]
(2006)
27
ILJ
1644
(LC)
[4]
(2012) 33
ILJ
2798 (GNP)
[5]
[2007] 12 BLLR 1097
(CC) at paras 79 and 110.
[6]
2013 (6) SA 224
(SCA). at para 12.
[7]
Supra
at para 25.