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[2016] ZALCCT 11
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Gordon v JP Morgan Equities SA (Pty) Ltd and Others (C514/2014) [2016] ZALCCT 11; [2018] 1 BLLR 39 (LC) (31 March 2016)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 514/2014
In
the matter between:
DEANNE GORDON
Applicant
and
JP MORGAN EQUITIES
SA (PTY) LTD
First Respondent
V SMITH N.O.
Second Respondent
CCMA
Third Respondent
Heard
:
17 March 2016
Delivered
:
31 March 2016
Summary:
Condonation – review – rule 7A –
record and supplementary affidavit delivered late –
commissioner falling
asleep and preventing applicant from concluding
cross-examination – good prospects of success on review –
condonation
granted.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The applicant, Deanne Gordon, was dismissed
by the first respondent, JP Morgan Securities, while she was on
“gardening leave”
and shortly before she was due to leave
its employ. She referred an unfair dismissal dispute to the CCMA (the
third respondent).
Commissioner Vicky Smith (the second respondent)
dismissed her claim and upheld the dismissal as being fair.
[2]
The
employee applied to have the arbitration award reviewed and set aside
in terms of s 145 of the LRA.
[1]
She delivered the record of the arbitration proceedings and her
supplementary affidavit – contemplated by rule 7A(8) –
late. She applies for condonation. The company opposes it. Her main
grounds of review are that the commissioner fell asleep during
the
proceedings and prevented the employee’s legal representative
from completing his cross-examination.
Background facts
[3]
Ms Gordon was employed as an SA Equity
Strategist. She was the head of the Equity Research Team and she was
an executive director.
She resigned and was given “gardening
leave” for three months from July to September 2013. The
company alleges that
she sent a number of emails containing
confidential information to her husband shortly before she resigned.
A disciplinary inquiry
was held and she was dismissed on 20 September
2013, ten days before the expiry of her gardening leave.
[4]
The arbitration took place over four days
on 11 and 12 February, 13 March and 22 May 2014. The employee was
represented by her attorney
of record, Mr Imraan Haffegee of Haffegee
Roskam Savage. The company was represented by Mr Itayi Gwaunza of its
attorneys of record,
Edward Nathan Sonnenbergs (ens). [In these
proceedings, the condonation application was argued by Messrs Lourens
Ackermann and
Stuart Harrison respectively].
[5]
The commissioner upheld the dismissal. The
employee timeously applied to have it reviewed; but she filed the
record and her supplementary
affidavit late.
The record
[6]
The record was delivered on 16 February
2015. On the applicant’s calculation, it is 26 days out of
time; on that of the first
respondent, either 29 or 83 days.
[7]
The employee delivered her review
application on 16 July 2014. The CCMA delivered the record (or part
of it) to the Registrar on
21 July.
[8]
The CCMA delivered a notice in terms of
rule 7A(3) – i.e. that it had delivered the record to the
Registrar – on 21
July; and the Registrar informed the
applicant on 23 July in terms of rule 7A(5). In terms of rule 7A(6)
read with clause 11.2
of the Practice Manual of this Court, the
applicant had to deliver the transcript of the arbitration and the
documents used at
arbitration – i.e. the arbitration record –
within 60 (court) days, i.e. by 16 October 2014, failing which the
review
application would be deemed to have been withdrawn.
[9]
The employee’s attorney discovered
that the record was incomplete, missing about 85 pages of documents
used by the employee
and three lever arch files provided by the
company at the arbitration. He made inquiries from the CCMA and wrote
to it on 27 August
2014. In response, the CCMA delivered a second
notice in terms of rule 7A(3) on 3 September 2014, together with the
three missing
lever arch files. However, it omitted the documents
supplied by the employee as they “could not be located”.
[10]
In the interim, the applicant’s
attorney had the arbitration proceedings transcribed at a cost of R20
000, 00. It was ready
for collection on 17 September 2014.
[11]
On 7 October 2014 the CCMA delivered a
third notice in terms of rule 7A(3) on 7 October 2014 with the
remaining documents that it
had now located.
[12]
The Registrar issued another notice in
terms of rule 7A(5) on 8 October 2015. The applicant argues that the
60 day period runs from
this date, expiring on 6 January 2015. The
company says it should be calculated from 23 July 2014 when the first
notice was issued.
The employee eventually delivered the complete
record on 16 February 2015.
The supplementary
affidavit
[13]
The applicant delivered her notice and
supplementary affidavit in terms of rule 7A(8) on 24 February 2015,
a week after delivering
the record.
Extent of delay
[14]
The employee says she filed the record 26
days late; the employer says it was either 29 or 83 days late.
[15]
I agree with Mr
Ackermann
that the moment from which to calculate the running of the 60 day
period envisaged in the practice manual is, on the facts of this
case, 7 October and not 23 July 2015. To hold that the CCMA had
delivered “the record” in July when it was incomplete,
would be to elevate form over function. The employee could only
deliver the complete record once she had received it from the CCMA,
i.e. after 7 October 2015; and she could only apply her mind to it in
order to deliver her supplementary affidavit in terms of
rule 7A(8)
after she had had an opportunity to consider the full record, i.e.
after 7 October.
[16]
If this is considered to be the relevant
period of delay – i.e. between 26 and 29 days – it is not
excessive.
Reasons for delay
[17]
The main reason for the delay is that the
CCMA delivered the record in three batches over a period of three
months.
[18]
The further reason is that the company
imposed a “confidentiality regime” on about 500 pages
that it considered confidential
information. The applicant’s
attorney, Mr Haffegee, outsourced the copying the arbitration
documents to a printing company;
but, because of the confidentiality
regime, he had to be present when those documents were copied. That
was time-consuming, especially
since he practices in Cape Town and
Johannesburg.
[19]
The piecemeal filing of the record by the
CCMA also necessitated time-consuming checking and rechecking of the
record for duplications
and omissions.
[20]
The applicant’s attorneys, Haffegee
Roskam Savage, also closed down from 16 December 2015 to 9 January
2016. Whilst this is
not a good reason for the delay in itself, as
the
dies
in
this Court continue to run during the time when, as a judge of this
Court has put it, the country goes into a “collective
slumber”,
it would be obtuse to ignore it altogether.
[21]
The extent of the delay is not excessive
and the explanation, although not entirely satisfactory, is arguable.
These factors have
to be weighed up together with the prospects of
success on review.
Prospects of success
[22]
In my view, the applicant has at least
arguable prospects of success on the two main grounds she raises on
review.
Arbitrator fell asleep
[23]
The employee alleges that the arbitrator
fell asleep during the arbitration proceedings. Her attorney, Mr
Haffegee – who represented
her at the arbitration – says
in his affidavit:
“”
[T]wo
of the review grounds are that the Commissioner fell asleep and that
I was not allowed to complete my cross-examination of
the company’s
main witness”.
[24]
In response, the company’s attorney,
Mr Gwaunza, says:
“
Saved
to deny the merits of the two review grounds, the contents hereof are
admitted”.
[25]
Despite the company’s subsequent
argument to the contrary, the admission by Mr Gwaunza seems obvious
on a simple reading of
his statement. He denies that the employee’s
ground of review has any merit; but he admits “the contents”
of
the averment, i.e. that the Commissioner fell asleep.
[26]
If
that is so, the applicant has good prospects of success on review. In
this regard Mr
Ackermann
referred to
Value
Logistics (Personnel Services) (Pty) Ltd v Letsoalo
[2]
where
the court held:
“
It
goes without saying that a party in compulsory statutory arbitration
proceedings can expect, at minimum, for an arbitrator to
be alert and
awake during the proceedings. An allegation under oath that an
arbitrator was sleeping during the proceedings is extremely
serious,
as it indicates misconduct of a fundamental nature by an arbitrator
and one would expect that it would prompt a response
under oath from
the arbitrator and an investigation and response by the bargaining
council. None was forthcoming from either the
arbitrator or the
council. In the absence of any such response, I accept the
allegations. This finding alone renders the entire
award liable to be
set aside on review.”
[27]
It must be said, though, that Mr Gwaunza –
later on in his answering affidavit – denies that it is common
cause that
the Commissioner fell asleep. He says:
“
At
best for the applicant, even if the second respondent fell asleep,
which isn’t common cause, it was for a short period
of time,
she could replay the audio recording, she had the benefit of
extensive closing submissions by the parties and it is not
contended
that for the remainder of the arbitration, pre and post the recusal
application, the second respondent fell asleep, which
makes up the
bulk, by far, of the proceedings.”
[28]
Unfortunately the commissioner did not go
on oath to give her version of events in this application. (From the
transcript of Mr
Haffegee’s application for recusal in the
arbitration it appears that she said: “I was listening. My eyes
were closed.”)
Cross-examination not
concluded
[29]
The second main ground of review is that
the commissioner prevented Mr Haffegee from completing his
cross-examination of the company’s
main witness, Mr Kern.
[30]
This arises from an odd set of
circumstances. Mr Haffegee had started cross-examining Mr Kern on 12
February 2014. The arbitration
was postponed to 13 March. On that
day, neither Mr Kern nor Mr Gwaunza was initially available. The CCMA
refused another postponement.
Mr Gwaunza flew from Johannesburg to
Cape Town. In the meantime, the commissioner instructed Mr Haffegee
to commence with the applicant’s
case, despite his objection
that he had not finished his cross-examination of Kern.
[31]
If
Mr Haffegee’s cross-examination of Mr Kern was curtailed by the
commissioner, the applicant may well have been deprived
of a fair
hearing, leading me to conclude that she has good prospects of
success on review. For example, in
Lippert
v CCMA
[3]
Rabkin-Naicker J pointed out that the commissioner having interrupted
the employee’s cross-examination of a witness deprived
him of a
fair trial of the issues.
[32]
A
similar point was made in
Ngwathe
Local Municipality v SALGBC
:
[4]
“
By
disallowing the employer’s witness to complete his evidence in
chief and also disallowing cross- and re-examination, the
arbitrator
infringed on the employer's right to natural justice and specifically
the employer’s right to have its case fully
and fairly
determined. In the words of the LAC, the process that the arbitrator
employed did not give the employer ‘a full
opportunity to have
their say in respect of the dispute’.
The
right of a party to give and adduce evidence is regarded as a
fundamental right to a fair trial. This right cannot be dispensed
with lightly. It is true that this right is not absolute but it can
only be departed from in exceptional circumstances.”
Conclusion
[33]
On a conspectus of all these interrelated
factors, I am satisfied that the interests of justice require that
the review application
be heard on the merits.
[34]
With regard to costs, I take into account
that the applicant’s prospects of success on review weighed
heavily in my decision
to exercise my discretion in favour of
granting condonation. Should the applicant be vindicated, she should
be entitled to her
costs on review and in this application. The
converse applies if the company is successful on review. Fairness
dictates that the
costs of this application be costs in the cause of
the review application.
Order
[35]
I therefore make the following order:
35.1
Condonation is granted for the late filing
of the record and the applicant’s supplementary affidavit.
35.2
The costs of this application are to be
costs in the cause of the review application.
_______________________
Anton J Steenkamp
Judge of the Labour Court
of South Africa
APPEARANCES
APPLICANT:
Lourens
W Ackermann
Instructed
by Haffegee Roskam Savage.
FIRST
RESPONDENT:
Stuart
Harrison of Edward Nathan Sonnenbergs.
[1]
Labour Relations Act 66 of 1995
.
[2]
[2014] 10 BLLR 1018
(LC) para [17]. In refusing leave to appeal, the
Court said: “Third, the finding that the arbitrator was not
fully awake
throughout the inquiry is attacked. I remain of the view
that the arbitrator should have responded to this serious allegation
against him, and that his failure to do so is supportive of the
finding that there is substance to the matter.” See [2014]
ZALCJHB 400 (14 October 2014).
[3]
[2014] ZALCCT 42 para [16].
[4]
[2015] ZALCJHB 55 paras [19] – [20] (footnote omitted).