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[2016] ZALCCT 44
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Kabeya v CCMA and Others (C905/2015) [2016] ZALCCT 44 (17 November 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C905/2015
Not
Reportable
In
the matter between:
OLIVER
NDALA
KABEYA
Applicant
and
CCMA
1st Respondent
COMMISSIONER
CM
BENNETT
2
nd
Respondent
KAPA
BIOSYSTEMS (PTY)
LTD
3
rd
Respondent
Heard:
25 May 2016
Delivered:
17 November 2016
JUDGMENT
RABKIN-NAICKER,
J
[1]
This is an opposed application to review an arbitration award under
case number WECT8232-15. The applicant, a layperson, filed
a
condonation application for the relatively short period of delay in
launching the review. It was not opposed and the court granted
condonation and heard the review on the merits. The applicant was
assisted in filing written heads of argument by the SASLAW pro
bono
office but represented himself in court.
[2]
The background to the dispute is set out in paragraph 3 of the Award
as follows:
“
3.
Respondent employed Applicant as a Manufacturing assistant from 2010.
He was paid a
basic monthly salary of R8, 560.00.
3.1
On 18 May 2015 Philander passed on an instruction, given by Daniels,
to Applicant to weigh
materials and to begin immediately. Applicant
replied that he would commence the weighing after the 10h: 00
meeting. He did so
but did not finish the weighing that day.
3.2
On 20 May 2015 Daniels asked Applicant why he had not finished the
weighing in one day,
especially as he had been given the instruction
at 08h:15. Applicant said that it had been given at 09.15. He went to
see Philander
to ask him why he had lied to Daniels
[1]
.
A verbal altercation followed, for which, on 2 June, Applicant was
dismissed.”
[3]
The applicant was charged with ‘failure to carry out a lawful
instruction’ and ‘failure to act in good
faith, in
that you intimidated and threatened to instigate violence against a
fellow colleague.’ The Commissioner found that
the dismissal of
the applicant was both procedurally and substantively fair. The
applicant has advanced a number of grounds of
review for this
decision. The manner in which the Commissioner performed his duties
as an arbitrator is highlighted. The record
of the arbitration
reveals the following noteworthy exchanges when the applicant was
cross-examining his former supervisor Daniels:
“
COMMISSIONER:
How long are you going to talk for? You just yak, yak, yak, yak, yak,
yak, yak, yak, you never pause for a minute.
She has to answer
questions. You just ask her a question and she started answering it.
You ask one question at a time, not twenty
three. Okay?...........
MR
NDALA: And if I threaten Chad to kill him, Can Chad prove, give me
the police number, because when there is violence, then you
have to
go and report to the police.
COMMISSIONER:
Okay, let’s, let’s not start being ridiculous, okay.
That’s a stupid question and you know it. Okay?
I’m not
here to waste time, I don’t have any tolerance of wasting time,
don’t waste mine, and I won’t waste
yours.”
[4]
The manner the Commissioner interacted with the applicant did not
befit his office in my view. A further complaint in submission
before
me is that the Commissioner did not take relevant evidence into
account in coming to his decision and committed gross irregularities
in the conduct of the arbitration proceedings. It appears from the
record that Ms Daniels, the marketing manager gave evidence
under
oath about the complaint laid against the applicant and that she
conducted the investigation against him. She also handed
in a
document entitled: “Appendix One” which she described as
her preparations for the disciplinary hearing. There
is no reference
to her evidence in the summary of evidence in the Award. In as far as
Appendix One was concerned, the Commissioner
dealt with it in the
following way:
“
MS
DANIELS: I’m not going to read exactly what the content is on
the document here, I think that everyone can review it.
COMMISSIONER:
Let’s see if we can just clear up this. The Appendix One, did
you write this?
MS
DANIELS: Yes, that was my preparation for the disciplinary inquiry.
COMMISSIONER:
Yes, but you but this is your document?
MS
DANIELS: That’s correct.
COMMISSIONER:
Yes, but you, but this is your document?
MS
DANIELS: That’s correct.
COMMISSIONER:
You wrote it?
MS
DANIELS: Yes.
COMMISSIONER:
You typed it out or
MS
DANIELS: That’s correct.
COMMISSIONER:
And you are, you, you stand by, you confirm the accuracy of the
contents insofar as it relates to you?
MS
DANIELS: Yes, that’s correct.
COMMISSIONER:
Okay. All right, that’s fine, thank you very much. Right. So do
you have any questions Mr Ndala, for this witness.”
[5]
Appendix 1 covers three and a quarter closely typed pages. The
Commissioner did not explain to the applicant, a lay person who
does
not hail from South Africa, that he can cross examine the witness on
the contents of the document or that he should have reference
to it.
The Commissioner himself did not clarify any of the document’s
contents with Daniels nor does he refer to it when
dealing with the
procedural fairness of the dismissal. It appears that he decided to
treat it as though it was a sworn statement,
rather than taking time
to hear the evidence of Daniels in relation to it.
[6]
On the issue of procedural fairness the Commissioner had this to say:
“
Turning
to the procedural issues, I note that Applicant was clearly notified
of his right to be represented by a fellow employee
and further that
he was afforded the right to call witnesses. There was evidence that
he was not denied these rights. Applicant
appeared to be confused
about what these two roles consist, arguing that he had wanted
someone to witness the proceedings for him.
I do not find from this
that he was denied representation had he requested it, which he
apparently did not or witnesses to testify
on his behalf, had he
called them, which apparently he did not. I find therefore that the
dismissal was also procedurally fair.”
[7]
The use of the word ‘apparently’ is disturbing,
considering that the employer has a legal onus to prove the dismissal
was procedurally fair. The Commissioner further does not appear to
have taken into account the following exchange contained in
the
record during the cross-examination of Daniels:
“
MR
NDALA: Ja, and they said you are not allowed to call the. They did
not allow me to call the witness. They told me that what we
are doing
here, it’s private. If we hear it out, we don’t wasn’t
to hear it out. If we hear, it’s going
to be your fault. That’s
why I not call those witnesses. They won’t give me a chance to
call a witness.
COMMISSIONER:
Okay.
MS
DANIELS: So, basically, we can listen to the recording of the
disciplinary hearing, when Oliviea got the chance to call a witness,
he said he doesn’t need to bring anybody in for a witness
statement. That was during the hearing. Towards the end, when we
had
come to a conclusion on matters, he mentioned he was going to bring
someone in. The hearing was scheduled for an hour. When
you were
asked Oiviea, during the hearing are you going to bring anyone in you
said no. When you, and requested at the beginning
Oliviea, so in
terms of the layout of the hearing at the beginning, the opening
statements for what happened, and then you add
the chairperson asks:
do you want to bring any witnesses? When she asked me, I said no, I
have statements. When she asked you,
you also said no.”
[8]
In other words the applicant was not allowed to call witness because
at the beginning of the hearing he said he did not want
to, and when
he did ask to, the hour set aside for the hearing was presumably
running out. In addition, the Commissioner did not
take into account
the admission by Daniels that while the company had committed itself
to bring an interpreter to the disciplinary
hearing, it did not. The
lack of an interpreter compounded the refusal to allow the applicant
to call a witness when he asked to
do so, calling into question
whether his statement that he did not need a witness at the beginning
of the proceedings was an informed
one. None of the company
witnesses to the alleged incident gave evidence at the disciplinary,
only written statements were
filed.
[9]
In view of the above, the Commissioner did not take relevant evidence
into account and committed a gross irregularity that prevented
a fair
trial of the issues relating to procedural fairness. As far as the
finding on procedural fairness and whether this was a
reasonable
outcome, the case of
Head
of Department of Education v Mofokeng & others
[2]
is instructive:
“
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an unreasonable outcome or provide
a compelling indication that the arbitrator misconceived the
enquiry. In the final analysis, it will depend on the
materiality of the error or irregularity and its relation to the
result. Whether the irregularity or error is material must be
assessed and determined with reference to the distorting effect it
may or may not have had upon the arbitrator's conception of
the
enquiry, the delimitation of the issues to be determined and the
ultimate outcome. If but for an error or irregularity a different
outcome would have resulted, it will ex hypothesi be material to the
determination of the dispute. A material error of this order
would
point to at least a prima facie unreasonable result. The reviewing
judge must then have regard to the general nature of the
decision in
issue; the range of relevant factors informing the decision; the
nature of the competing interests impacted upon by
the decision; and
then ask whether a reasonable equilibrium has been struck in
accordance with the objects of the LRA.
Provided the
right question was asked and answered by the arbitrator, a wrong
answer will not necessarily be unreasonable. By the
same token, an
irregularity or error material to the determination of the dispute
may constitute a misconception of the nature
of the enquiry so as to
lead to no fair trial of the issues, with the result that the award
may be set aside on that ground alone.
The arbitrator however must be
shown to have diverted from the correct path in the conduct of the
arbitration and as a result failed
to address the question raised for
determination.”
[10]
In
Coega
Development Corporation (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration & others
[3]
Myburgh AJ stated in
relation to the dictum above and the threshold of ‘reasonableness’
that:
[69]
The shorthand for all of this is the following: where a commissioner
misdirects him or herself by ignoring material facts or
considerations (brought about by, for example, not engaging in proper
analysis of the evidence as per Sasol Mining and Madikane),
the award
will be reviewable if the distorting effect of this
misdirection was to render the award unreasonable.
[70]
There is another issue that warrants some consideration for present
purposes — what is the threshold for unreasonableness?
Traditionally, the answer is that the decision must fall outside of a
range of reasonable decisions. But this, in itself, is not
particularly helpful, because how does one determine the range? To my
mind, the issue turns on the intensity with which a review
for
reasonableness should be undertaken in the context of this court
having been tasked (through its review powers) to supervise
the
reasonableness of CCMA awards — the higher the
intensity of the review, the narrower the range of reasonable
decisions (and vice versa).
[71]
In my view, on an overall assessment of the jurisprudence of the
LAC (whose judgments are, of course, binding on
this court and from
which this court takes guidance), it adopts a relatively high
intensity reasonableness review. As a result
of this, on my
assessment, where an award is obviously wrong, the LAC will typically
set it aside on review on the grounds of unreasonableness
— it
does not have to be hopelessly wrong or absurd before it
will do so (which is what the threshold in a lower
intensity review
might be). Seen thus, the permissible margin for errors
by a CCMA commissioner is between what is
objectively right and what
is obviously wrong. Put differently, where a decision is
obviously wrong, it falls outside of
a range of reasonableness.”
[11]
In the court’s view the decision taken on procedural fairness
falls outside of the range of reasonableness. In as far
as
substantive fairness is concerned, the Commissioner reasoned as
follows in relation to the evidence of the respondent’s
witnesses as far as the charge of intimidation was concerned:
“
13.
Insofar as there being a fair reason for dismissal is concerned, I am
somewhat concerned that Philander and Mpange’s recollection
of
what was said should be, at first blush, so vastly different. The
only points of agreement were that Applicant asked Philander
why he
had lied and Philander asked Applicant if he was threatening him.
Beyond that, especially concerning the alleged threat,
veiled or
otherwise, they could have been listening to two different
conversations. “I will get you” is such a direct
and
simple statement that I am surprised that Mpange did not testify to
hearing it said……..
15.
Conversely, there was arguably some consistency between Philander’s
and Mpange’s versions to the extent that there
was some
conversation about being upstairs/downstairs and being
inside/outside. There was also consistency in the assertion that
Applicant made a threat. Is the fact that each witness recalled some
different words more important than the consensus that Applicant
was
threatening? I find that it is not. On simple weight of numbers, with
neither Philander nor Mpange appearing to be untruthful
or appearing
to have any motivation to lie about what had happened, two people say
Applicant was threatening as opposed to his
uncorroborated
applicant’s contention that he was not. The probabilities
favour Respondent’s version, despite
applicant’s
contention that this was a ‘put up job’. From a point of
view, had it been a conspiracy against him,
there probably would not
have been the disparity of recollection between the witnesses as to
what had been said. I conclude therefore
that Applicant did say
things that were impliedly threatening towards Philander.”
[12]
I do not find the Commissioner’s assessment of the evidence in
regard to substantive fairness to be unreasonable. Nor
his finding
that there is no place for threats or intimidation in the workplace
and that the sanction of dismissal was fair.
[13]
In the premises, I make the following order:
Order
1.
The award under case number WECT8232-15 is reviewed and set aside and
substituted as follows:
1.1
The dismissal of the applicant was substantively fair but
procedurally unfair;
1.2
Kapa Biosystems is ordered to pay the applicant an amount equivalent
to three months remuneration,
less statutory deductions, as
compensation for his procedurally unfair dismissal.
1.3
Payment of compensation is to be effected within 14 calendar days of
this judgment.
____________________
H. Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
In person
Respondent:
Weber Wentzel Attorneys
[1]
His
supervisor
[2]
(
2015)
36 ILJ 2802 (LAC)
[3]
(2016) 37 ILJ 923
(LC)