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[2016] ZALCPE 4
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Walter Sisulu University v Commission for Conciliation, Mediation and Arbitration and Others (P339/12) [2016] ZALCPE 4 (19 February 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: P 339/12
In
the matter between:
WALTER
SISULU
UNIVERSITY
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First Respondent
SWANEPEL,
ANSIE
N.O
Second Respondent
SBONGILE
MHLOLI
Third Respondent
Heard:
2 September 2015
Delivered:
19 February 2016
Summary:
The errors made by the commissioner in the conduct of the arbitration
had an impact on his award and rendered it unreasonable
and therefore
reviewable.
JUDGMENT
LALLIE,
J
Introduction
[1]
In this application, the applicant seeks an order reviewing and
setting aside an arbitration award of the second respondent
(“the
commissioner”) in which she found that the third respondent was
dismissed by the applicant and that such dismissal
was substantively
and procedurally unfair. She ordered the applicant to reinstate the
third respondent. This application is opposed
by the third
respondent. The review application was filed seven days late and the
applicant applied for condonation. The condonation
application is
unopposed. The extent of the delay is minimal and its explanation
reasonable. I could find no grounds for refusing
it.
Factual
background
[2]
The applicant employed the third respondent as a secretary/fire
fighter on a fixed term contract on 15 March 2006. Her fixed
term
contracts were renewed a number of times. In 2008, the applicant and
the respondent entered into a fixed term contract of
employment for
the period 1 March 2008 to 31 December 2008. In October 2008, the
applicant informed the third respondent that her
fixed term contract
would not be renewed. In January 2009, the third respondent referred
an unfair dismissal dispute to the first
respondent (“the
CCMA”) on the basis that the applicant had failed to renew her
fixed term contract when she had reasonable
expectation that it would
be renewed. The dispute was arbitrated and the outcome of the
arbitration (“the first arbitration”)
was that the third
respondent had failed to prove her dismissal and her claim was
dismissed. She launched a review application
to have the arbitration
award reviewed and set aside. As the record of the arbitration
proceedings could not be filed, an order
was granted setting the
arbitration award aside and remitting the matter to the CCMA to be
heard
de novo
. The dispute was arbitrated by the commissioner
(“the second arbitration”). At the second arbitration,
the third respondent
based the unfairness of her dismissal on
different grounds. She alleged that her dismissal was unfair because
on 29 September 2008,
the applicant informed her in a letter that she
had been absorbed as its permanent employee with effect from 1
January 2009. She,
however, was issued with another letter on 17
October 2008, in which she was informed of her dismissal on 31
December 2008. The
applicant denied having issued the third
respondent with the letter of 29 September 2008, and maintained that
the contract of employment
between the parties was terminated on 31
December 2008 when the fixed term contract expired. The commissioner
found that the applicant
had dismissed the third respondent and that
the dismissal was substantively and procedurally unfair and ordered
her reinstatement.
The
award
[3]
In the reasons for her decision, the commissioner stated that she was
impressed by the third respondent as a witness as she
presented her
evidence with candour and without hesitation. She did not contradict
herself and withstood vigorous cross examination.
She found the
letter which the third respondent, on her version, was issued with on
29 September 2008 announcing her being absorbed
as a permanent
employee from 1 January 2009 to be a normal and natural consequence
of the extended employment relationship that
the third respondent at
that stage already had with the applicant. She accepted the third
respondent’s testimony that the
letter was taken back by the
applicant because of some omission and that the third respondent and
Mr Chopiso (‘Chopiso’),
her immediate manager, had
confirmed her appointment in letters sent to HR. She was taken aback
by the letter of 17 October 2008,
informing her of her dismissal with
effect from 31 December 2008. She found that the third respondent was
a layperson who did not
have the time or amenities to forge evidence
to the extent referred to by the applicant. She was also not accused
of any foul play
during the arbitration proceedings. The commissioner
accepted the third respondent’s version as the more probable.
[4]
Rejecting the applicant’s version, the commissioner stated that
she was not impressed by Chopiso as a witness as he was
arrogant and
argumentative. While he conceded that he had his signature scanned to
facilitate the signing of his letters in his
absence, he denied that
he was the author of the letters the third respondent sought to rely
on. He maintained that the third respondent
performed secretarial
duties only and that he notified the third respondent on 17 October
2008, of the non-renewal of her contract
because he wanted to give
her time to deal with her financial matters. She rejected Chopiso’s
evidence that the third respondent
was not a fire fighter and that
she wrote letters without his consent because his version was not put
to the third respondent during
her cross examination. She found
Chopiso’s denial that he was the author of the letters to be an
attempt to sidestep responsibility.
He acted outside the scope of his
authority by issuing the dismissal letter of 17 October 2008. She
rejected Chopiso’s evidence
that the font of the letter of 17
October 2008 was incorrect because he testified that his computer
skills were minimal. She criticised
the applicant for not calling the
HR Director to refute the evidence that the letter appointing the
third respondent on a permanent
basis was issued by his Department.
She rejected the evidence of the applicant’s second witness, Mr
Bitsoane and labelled
him a hired gun who was coerced to echo
Chopiso’s evidence. The commissioner observed that as to
procedural and substantive
fairness, no evidence was presented that
the applicant did anything to validate the termination of her
contract.
Grounds
for review
The
review application
[5]
The applicant’s first ground for review is that the third
respondent obtained the award as a result of perjury and fraud,
thus
obtaining the award improperly as contemplated in section 145(2)(b)
of the Labour Relations Act 66 of 1995 (‘the LRA’).
Substantiating the ground, the applicant submitted that the three
letters that the third respondent relied on to prove her case
were
fabricated by her to create a case against the applicant. The
applicant submitted that the third respondent’s case changed
as
at the first arbitration, she had based her case for unfair dismissal
on the applicant’s failure to renew her fixed term
contract
when she had reasonable expectation that it would be renewed. She
made no mention of the letters which she relied on at
the second
arbitration which, on her vision, proved that she was dismissed
unfairly when she was a permanent employee of the applicant.
[6]
The third respondent correctly pointed out that the first ground of
review has no basis as the applicant denied knowledge of
the letters
that she sought to rely on to prove the unfairness of her dismissal
at the second arbitration. The commissioner dealt
with the issue and
elected to prefer her version. If the applicant wished to allege that
the letters were fraudulent, the applicant
should have made the
allegation at the arbitration. The applicant may not be permitted to
use these proceedings to augment the
case that it presented at the
arbitration.
[7]
The applicant further alleged that the commissioner committed gross
irregularities by placing on it, the onus of proving the
third
respondent’s allegation that she was offered permanent
employment by its Human Resources Director. She failed to take
into
account relevant evidence led by the applicant to the effect that
making a permanent appointment involved a procedure in terms
of which
a candidate was required to be interviewed and submit proof of
qualifications and certificates. The procedure was not
followed when
the applicant’s alleged permanent appointment was made. The
award was further attacked on the basis that the
commissioner made
irrational findings which were not based on evidence. They include
the finding on Chopiso’s computer skills
and the third
respondent’s lack of time and amenities to forge evidence.
Analysis
[8]
The test for review is whether the decision reached by the
commissioner is one that a reasonable decision-maker could not
reach.
[1]
The applicant relied heavily on the ground that the commissioner made
errors and committed gross irregularities. In
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae),
[2]
it was held that not every error or omission renders an award
reviewable and circumstances which warranted review were expressed
thus:
‘
For a defect
in the conduct of the proceedings to amount to a gross irregularity
as contemplated by section 145 (2)(a)(ii), the
arbitrator must have
misconceived the nature of the enquiry 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, 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.’
[9]
A number of grounds for review are based on the manner in which the
commissioner dealt with the dispute of fact before her which
resulted
from the applicant and the third respondent presenting mutually
exclusive versions of what led to the termination of their
employment
relationship. The leading authority in resolution of disputes of fact
is
Stellenbosch
Farmers Winery Group Ltd and Another v Martell et Cei and Others.
[3]
Relying on that decision, the court, in
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
[4]
held thus:
‘
A court’s
finding on the credibility of a witness ordinarily depends upon a
variety of factors such as the witness’
candour and demeanour
in the witness box, his bias, latent or blatant, internal
contradictions in his evidence, external contradictions
in what was
pleaded or put on his behalf, or with established facts or with his
own statements or actions outside the court; the
probability or
improbability of particular aspects of his version; and the calibre
and cogency of his performance, compared to
that of other witnesses
testifying about the same incident or event. Courts on a number of
occasions have warned about the risk
inherent in relying on the
demeanour of witnesses as a reliable guide to credibility.’
[10]
The totality of the material before the commissioner reflects that
the commissioner committed gross irregularities which rendered
the
award unreasonable. Although she attempted to apply the correct test
in resolving the dispute of fact, she omitted material
parts of the
test. She failed to consider internal contradictions in the third
respondent’s case which includes her referral
documents. While
the referral documents do not constitute pleadings, there was a duty
on the commissioner to deal with the contradictions
in the third
respondent’s version as it appears in the referral documents
and the version that she presented at the arbitration.
The duty was
more onerous because the version in the referral documents is
consistent with the applicant’s version. The commissioner’s
finding that the third respondent was a layperson who did not have
time and amenities to forge the letters proving her permanent
appointment is inconsistent with the evidence. The third respondent
was a typist and could therefore type any letter. The period
between
her alleged dismissal and the submission of the letters is over three
years. It is a lot of time. The third respondent
typed letters for
Chopiso for years. Chopiso was therefore in a position to
comment on the correctness of the font used by
the third respondent
in letters. The ruling that he was unable to, owing to minimal
computer skills is not supported by evidence.
The rulings are based
on conjecture and had an impact on the commissioner’s decision.
[11]
The commissioner failed to consider all the relevant evidence when
coming to her decision. She failed to consider the applicant’s
evidence that amongst the facts which proved that the third
respondent’s version, that she was employed on a permanent
basis
was false, was that the purported appointment was not made in
terms of its appointment procedure. The evidence is material and
failure to consider it influenced the commissioner’s decision.
In
Minister
of Safety and
Security
and
Another v Madikane and Others,
[5]
it was held that failure to take into account all the relevant
evidence is not only wrong but also unreasonable. The gross
irregularities
committed by the commissioner rendered her award
unreasonable.
[12]
The applicant sought an order substituting the arbitration award. A
correct decision on the fairness of the third respondent’s
alleged dismissal can only be reached after the dispute of fact about
the existence of the dismissal has been properly dealt with.
Such an
investigation can only be conducted at arbitration.
[13]
In the premises, the following order is made:
13.1
The late filing of the review application is condoned.
13.2
The arbitration award issued by the second respondent under case
number ECEL 351-09 and dated 28 May 2012
is reviewed and set aside.
13.3
The matter is remitted to the first respondent to be arbitrated
de
novo
by a commissioner other than the second respondent.
__________
Lallie J
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant:
Mr Kirchmann of Kirchmanns
Inc
For
the Third Respondent: Mr Zono of Zono & Associates
[1]
In this regard see
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC) at para 110.
[2]
[2013] 11 BLLR
1074
(SCA) at para 25.
[3]
2003 (1) SA 11
(SCA).
[4]
(2015) 36 ILJ 2038
(LAC) at para 14.
[5]
(2015) 36
ILJ
1224 (LAC) at para 46.