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[2016] ZALCPE 16
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SA Metal Group (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (C1057/2015) [2016] ZALCPE 16 (22 September 2016)
THE
LABOUR COURT OF SOUTH AFRICA
PORT
ELIZABETH
Not reportable
Case no: C 1057 /2015
In the matter between:
SA METAL GROUP
(PTY)
LTD
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First
Respondent
STEPHEN BANA
N.O
Second Respondent
NUMSA obo MPANGELE AND FOUR
OTHERS
Third Respondent
Heard: 25 August 2016
Delivered: 22 September 2016
Summary: Review application.
Arbitrator failed to consider inherent probabilities where he was
confronted with conflicting versions.
Award is reviewed and set aside
and remitted for hearing
do novo.
JUDGMENT
PRINSLOO, J
Introduction
[1]
The Applicant seeks to review and set aside
an arbitration award issued on 30 November 2015 wherein the Second
Respondent (the arbitrator)
found the dismissal of Mpangele and four
others (the employees) substantively unfair and ordered that they be
reinstated retrospectively.
[2]
The Third Respondent opposed the
application.
Background facts
[3]
The background facts are herewith
summarised as follows:
[4]
On 16 February 2015 the Applicant and NUMSA
entered into an agreement in respect of picketing rules (the
picketing agreement), in
anticipation of the protected strike action
that was to commence on 17 February 2015.
[5]
The employees were employed at the
Applicant’s Epping site and when the strike commenced on 17
February 2015, they participated
in the strike action. Two of the
employees namely Banathi Mpangele (Banathi) and Lamla Mandi (Mandi)
were also shop stewards.
[6]
In April 2015, the employees were issued
with notices to attend a disciplinary enquiry. The charges levelled
against Simizelo, Guda
and Mjanyelwa were in respect of acts of
intimidation in that they intimidated fellow employees on several
dates during the strike
that commenced on 17 February 2015 and gross
misconduct in that they broke the agreed picketing rules by
intimidating fellow employees.
They were found guilty of and
dismissed for the misconduct as per the charges.
[7]
Banathi and Mandi were charged with
intimidation and assault in that they, on several dates and on
various occasions during the
said strike intimidated and incited
fellow employees to be violent towards other employees, that they
were present and condoned
assault when strikers assaulted fellow
employees and that they broke the picketing rules by intimidating and
assaulting fellow
employees, which was serious as they had agreed to
the picketing rules in their capacities as shop stewards. They were
found guilty
of and dismissed for intimidation and assault and breach
of the picketing rules.
[8]
Although the charges were couched in broad
terms, the misconduct for which the employees were dismissed, related
to two specific
incidents namely the Bishop Lavis incident and the
Kraaifontein incident.
[9]
The Bishop Lavis incident involved all five
of the employees. It was the Applicant’s case that on 17 March
2015, a group of
about 30 – 40 striking employees went to the
residence of a co-employee, Cecil Baartman (Baartman), in Bishop
Lavis and threatened
to burn down the house if Baartman continued to
work during the strike.
[10]
In respect of the Bishop Lavis incident, it
was not disputed that a group of 30 plus individuals went to the
residence of Baartman,
but the employees denied and disputed that
they were part of the group or that they were present at Baartman’s
house.
[11]
The Kraaifontein incident involved Banathi
and Mandi. It was common cause that Banathi and Mandi drove to the
Applicant’s
Kraaifontein branch on 25 February 2015 and that
they spoke to the Applicant’s employees. In the proceedings
they were referred
to as the ‘casuals’. The Applicant’s
case is that Banathi and Mandi went to Kraaifontein and that they
threatened
the casuals to such an extent that they did not continue
their work but left the site. The employees’ version was that
they
approached the casuals and enquired from them whether they were
aware of the fact that the Applicant’s employees were on strike
and when they responded that they were unaware, Banathi and Mandi
informed them about the strike, but indicated that whether or
not
they support the strike was their own decision and thereafter they
left. The casuals thereafter reported to the security supervisor
that
they had been threatened with death if they work during the strike
and they left.
[12]
In respect of the Kraaifontein incident, it
was not disputed that Banathi and Mandi went to Kraaifontein or that
they spoke to the
casuals. The issue in dispute was what had been
said to the casuals.
[13]
It is evident from the charges levelled
against the employees and for which they were dismissed, that the
Applicant had to prove
that the employees were present at Bishop
Lavis and that Banathi and Mandi intimidated the casuals at
Kraaifontein.
The arbitration proceedings:
The application for legal
representation
[14]
Prior to the arbitration, the Applicant
made a formal application for legal representation. The Application
was motivated by the
fact that the Applicant’s representative
and human capital manager, Marike Aaris (Aaris), has no legal
training and no experience
to present a case at arbitration, while in
comparison, the employees were represented by an experienced trade
union representative.
The argument was that there would be a vast
disparity in the parties’ abilities to represent their
respective cases. The
Applicant also submitted that there was a
demonstrable public interest in the outcome.
[15]
At the commencement of the arbitration
proceedings on 21 September 2015, the request for legal
representation was further motivated
by the fact that the misconduct
was committed in association with a group and that the Applicant
would be required to lead evidence
concerning collective and
derivative misconduct and Aaris was unfamiliar with the law and was
ill-suited to present a case based
on the doctrine of common purpose.
It was further motivated that the Applicant would seek to introduce
hearsay evidence and the
law surrounding hearsay was unknown to
Aaris.
[16]
The Applicant argued that in two prior and
recent arbitrations, the Applicant was allowed to be legally
represented on similar grounds.
The employees opposed the application
for legal representation and submitted arguments as to why it should
not be allowed.
[17]
On 21 September 2015 the arbitrator, after
considering the arguments, made a verbal ruling wherein he refused
the application for
legal representation. The reasons provided by the
arbitrator were that the matter was not complex as it was premised on
the issue
of identification. The issue of derivative misconduct could
be dealt with in argument rather than evidence, Aaris was involved in
the previous cases, albeit as a witness, thus she has some exposure
to the same type of cases and how to deal with it and therefore
the
comparative ability is not that far apart. The arbitrator accepted
that there was public interest but that was not a reason
enough to
allow legal representation.
[18]
The matter proceeded with Aaris
representing the Applicant and Mr Mohammed (Mohammed) from NUMSA
representing the employees.
[19]
The refusal to allow legal representation
is the first ground for review raised by the Applicant and I deem it
logical to deal with
it prior to the merits of the case and the other
grounds for review.
[20]
The Applicant’s case is that the
arbitrator committed misconduct or a gross irregularity because he
unreasonably evaluated
and refused the Applicant’s application
for legal representation.
[21]
The Applicant argued that it is clear from
the arbitrator’s ruling that he identified the relevant
considerations outlined
in Rule 25(1)(c)(ii) of the CCMA Rules and
that he had a full appreciation of the enquiry he was obliged to
undertake, but he failed
to exercise his discretion in a judicial
manner in disallowing legal representation. This is so as the most
fundamental problem
related to the relative experience and abilities
of the representatives and the fact that it was unreasonable to
expect Aaris to
represent the Applicant when she was inexperienced
whilst Mohammed was experienced in arbitration proceedings.
[22]
The Applicant’s complaint is that
Mohammed is a proficient cross-examiner, knowledgeable of the
relevant case law and comfortable
with concepts such as hearsay,
negative inferences and
in camera
hearings. There were disputes relating
to the admissibility of hearsay evidence and a significant number of
witnesses and cross-examination
was crucial given that the case
turned largely on the identification of the employees.
[23]
The crux of this ground for review is that
the decision not to allow legal representation impacted on the
outcome of the arbitration
as a whole as the Applicant did not have a
full opportunity to be heard, the substantial merits of the case were
not dealt with
and a decision was reached without regard to the full
picture of the relevant facts and law. In short, the Applicant was
denied
a fair hearing.
[24]
The employees’ argued that the
arbitrator has a discretion whether or not to allow legal
representation and he made his decision
after he allowed both parties
to make submissions, which decision is sound and not to be interfered
with on review.
[25]
Ms Ralehoko for the employees submitted
that the Applicant’s complaint that it was denied a fair trial
because it was not
allowed legal representation is without merit. The
Applicant’s case is that Aaris was unable to present the
alternative argument
that if the identification process was found
wanting, the Applicant would rely on the principle of collective
misconduct and Aaris
was not able to present that case. Ms Ralehoko
argued that the concept of collective misconduct would only apply if
it was established
that the employees were part of the group that
went to Baartman’s house and since no reliable evidence was
adduced to establish
that the employees indeed formed part of the
group, it could not be said that they acted in concert with a group
with a common
purpose.
[26]
Be that as it may, it was not necessary to
adduce evidence on the issue of collective misconduct, as it was a
matter for argument
and Aaris submitted compelling arguments on the
concept of collective misconduct. Ms Ralehoko submitted that the
Applicant was
not disadvantaged by the fact that Aaris did not know
how to lead evidence on the concept of collective misconduct.
[27]
In short the employees’ case is that
there is no merit in the ground for review that the arbitrator failed
to apply his mind
to the question of legal representation.
[28]
I have to consider whether there is merit
in the Applicant’s complaint that the arbitrator unreasonably
evaluated and refused
the application for legal representation.
Central to this is a consideration of whether the decision not to
allow legal representation
impacted on the outcome of the arbitration
as a whole in that the Applicant did not have a full opportunity to
be heard and a decision
was reached without a full picture of the
relevant facts and law. The crux of the Applicant’s first
ground for review is
that it was denied a fair hearing because it was
denied the right to be legally represented.
[29]
In my view there is no merit in this ground
for review.
[30]
Firstly, a transcript of the arbitration
proceedings shows that Aaris was quite capable to lead the
Applicant’s witnesses
in presenting their evidence, in
cross-examination of the employees’, she was able to apply for
the admission of hearsay
evidence to such an extent that the
affidavit of Magaloza was admitted as hearsay evidence and that she
was able to present the
Applicant’s case.
[31]
I cannot agree with the Applicant’s
notion that it did not have a full opportunity to be heard and that a
decision was reached
without a full picture of the relevant facts.
The Applicant called six witnesses and Aaris was able to question
them to the extent
that the Applicant’s case was presented and
placed before the arbitrator. That is what an employer in an
arbitration is entitled
to do and the Applicant was afforded that
opportunity.
[32]
The Applicant was afforded an opportunity
to submit written closing arguments. Aaris submitted comprehensive
closing arguments comprising
22 pages wherein she fully dealt with
the general legal principles, an assessment of the evidence, case law
in respect of hearsay
evidence and collective misconduct.
[33]
The arbitrator exercised his discretion,
based on the facts before him, and he exercised his discretion by not
allowing legal representation.
I am not satisfied that the way the
discretion was exercised and the decision not to allow legal
representation were unreasonable,
as alleged by the Applicant.
[34]
I am further not satisfied that the
Applicant was denied a fair hearing because legal representation was
not allowed, as the transcribed
record shows otherwise. I am not
convinced that a case has been made out that the award should be
reviewed and set aside for this
reason alone, as submitted by the
Applicant.
[35]
Having found that there is no merit in the
first ground for review, I have to consider the other grounds for
review as raised by
the Applicant.
[36]
The Applicant’s other grounds for
review are related to the evidence and mistakes in law he made. In
respect of evidence it
is the Applicant’s case that the
arbitrator incorrectly considered irrelevant testimony and / or
failed to consider relevant
aspects of the testimony. The made
mistakes in law the arbitrator made relate to his evaluation of the
admissibility and weight
of the Applicant’s hearsay evidence
and his application of the cautionary rule to the testimony of
Jassen.
[37]
The assessment of the merits of the
remaining grounds for the review, calls for a consideration of the
evidence that was adduced.
The evidence adduced
[38]
The arbitrator summarised the issues: the
first being whether the employees were guilty of the allegations of
intimidation
and secondly, if they were indeed guilty, whether
dismissal was an appropriate sanction. He made it clear that the onus
was on
the Applicant to prove on a balance of probabilities the
charges for which the employees were dismissed and to show that the
dismissal
was fair.
[39]
The Applicant called six witnesses to prove
the charges.
[40]
Aaris testified and she described the core
operations of the Applicant, the strike history at the Applicant and
the violent nature
of the strikes and the negative impact the violent
strikes had on the Applicant’s operations and workforce.
[41]
Aaris made it clear that she was not
involved in the process of identifying the striking employees.
[42]
Aaris referred to the letter of 17 April
2015 wherein the Applicant afforded employees who were given notices
to attend disciplinary
enquiries the opportunity to come forward and
to make a full disclosure of their misconduct during the strike
action and if such
disclosure was made and the employee involved did
not commit violent acts during the strike, the employee would not be
dismissed.
She testified that only Banathi came forward, but not to
disclose anything, but merely to express his shock that he was called
to a disciplinary hearing.
[43]
Aaris explained that the employees were
dismissed as the misconduct of threatening and intimidation of others
was serious and not
in compliance with the picketing rules. It was
conduct and behaviour the Applicant could not tolerate.
[44]
In cross-examination Mohammed dealt with
the letter affording the employees the opportunity to come forward.
He put to Aaris that
it was common cause that the employees were not
found guilty of or dismissed for violent acts, and despite the fact
that they were
not found guilty of acts of violence, they were
dismissed whilst the employer stated in the letter that there won’t
be dismissal.
Aaris responded that Mohammed misunderstood the letter
and she explained the contents of the letter to mean that if an
employee
that committed misconduct, other than an act of violence,
came forward and admit that, he or she would not be dismissed. She
explained
that it was very different from Mohammed’s
interpretation that no one would be dismissed if it was not a violent
act. There
was a condition attached to it namely that the employees
had to come forward and no one did.
[45]
Mohammed stated that the employees did not
come forward as they had nothing to disclose and Banathi came forward
to disclose that
he was not involved in any acts of misconduct. Aaris
disputed that and denied that Banathi came forward, she testified
that Banathi
never indicated what happened, but just stated that he
had not done anything and the Applicant viewed that the same as not
coming
forward.
[46]
The issue regarding Banathi’s
identification during the disciplinary hearing was dealt with in
detail. Mr Esau (Esau) was
the witness who identified Banathi at
Baartman’s house, however during the disciplinary hearing he
was unable to identify
Banathi. Only after the employer sought an
adjournment and produced a photograph of Banathi with an arrow
pointing to Banathi,
was Esau able to identify him. Mohammed
submitted that Esau was not able to identify Banathi based on his own
recollection, but
was only able to do so after he was shown a
photograph of Banathi with an arrow with his name on, that he could
remember and identify
Banathi. Aaris explained that Banathi has a
very distinct way of wearing his hair and he was wearing a cap during
the disciplinary
enquiry. Esau recognised Banathi by a combination of
his face and his hairstyle and when one of those (the hairstyle) fell
away
because Banathi was wearing a cap, it confused Esau. Aaris did
not dispute that Esau was unable to identify Banathi on his face.
She
confirmed that when Banathi took off his hat, Esau was able to
identify him.
[47]
Mr Jassen (Jassen) testified that he is not
an employee of the Applicant, but he resides with his uncle, Mr Esau,
on the same premises
as Baartman at Bishop Lavis.
[48]
Jassen testified that the crowd came to
Esau’s house on 17 March 2015 and they shouted “Baartman
Baartman” and
they entered the premises. Jassen told them that
they cannot enter the premises and they asked where Baartman was.
Jassen told
them that he was at work and they said that Baartman
should not go back to work or they would burn the house down. Jassen
asked
if that was a threat and they responded by saying that it was
not a threat, but a promise.
[49]
Jassen testified that he specifically took
notice to remember a few faces of the people in the crowd in case
they would return the
next day and execute their threat.
[50]
The next day Mr Smit (Smit) approached him
and asked him if he was willing to identify the individuals who came
to the house to
make the threats. Jassen agreed and he explained the
process followed to identify the individuals. He went to the
Applicant’s
premises and Smit showed him live video footage on
two monitor screens. He identified the individuals from the live feed
video
footage as well as by looking out at the window of the
boardroom from where he observed the individuals and identified them.
[51]
Jassen was able to identify Mandi as vocal
and Simizelo as the spokesperson who made the threat. He could also
identify Banathi,
Guda, Mjanyelwa as being present at the house on 17
March 2015.
[52]
In cross-examination Jassen confirmed that
he pointed out and identified the individuals from the live feed
video footage he saw
and not from photos he was shown. Jassen
explained that the individuals were identified on their faces and not
the way they wore
their hair. The photos used during the arbitration
were snapshots taken from the live feed. Once Jassen identified an
individual
on the live feed, a snapshot was taken from the live feed.
Jassen testified that the live feed was much more clear than the
photos
that were taken as snapshots from the live feed, after he
pointed out the individuals.
[53]
Jassen confirmed that he made sure to
remember the faces in case something happened in respect of the
threat that was made on 17
March 2015.
[54]
In cross-examination it was put to Jassen
that he could not have identified Simizelo correctly if he did not
identify him by the
scar on his face. Jassen testified that he knew
Simizelo had a distinctive mark on his face, but he did not use that
to identify
him.
[55]
After the testimony of Jassen, the
Applicant sought to introduce hearsay evidence pertaining to Jonathan
Harry and Mzwabantu Magaloza
on the basis that they were threatened
and are scared for their lives and would therefore not testify
viva
voce.
[56]
The arbitrator considered the evidence of
Jonathan Harry (Harry). Harry stays 20 metres from Baartman and his
statement confirmed
that he was told that there were people at the
house who made threats. Harry’s statement is in itself hearsay
evidence and
it merely confirms that a group of people was present at
Bishop Lavis on 17 March 2015, an issue that was not in dispute. The
issue
in dispute was the identification of the individuals who were
present and Harry was not present and could not assist in the
identification
of the individuals present at the house. The
arbitrator made a ruling not to allow the hearsay evidence of Harry
as his statement
contained information he obtained from others, as he
was not present and his statement was based on hearsay, it was
irrelevant
and was not going to assist in the determination of the
matter.
[57]
In respect of the statement of Magaloza the
arbitrator held that:
“
..I
will allow the statement and any additional oral evidence that
relates to this, but I’m going to put the caution on the
record: it is hearsay evidence. I have not had sufficient explanation
why he is not here and I will obviously bear that in mind
when I now
weigh the evidence in my deliberations. I’m putting this on the
record to you, that this, I regard it as hearsay
evidence without
sufficient grounds for his absence, but I will allow you to present
it, and it will feature in the award as and
how it is relevant. Then
you obviously need to understand that this will also be weighed
against whatever direct evidence is going
to some in support or
against it.”
[58]
The Applicant called Mr Williams (Williams)
as a witness. Williams is the human resources practitioner and he
testified that he
met with Magaloza, who confirmed his statement and
told Williams that he was approached by Banathi at Kraaifontein
during the strike
and Banathi asked him not to work and told him that
if he continues to work, they would kill him. Magaloza confirmed that
he immediately
informed his manager that he was not going to work
because his life was threatened and he felt scared that something
might happen
to him. Magaloza was asked to attend the arbitration but
he said he was scared and felt too threatened to come to the
arbitration
and would not testify if the Applicant was not able to
protect him after the proceedings.
[59]
In cross-examination the evidence of
Williams on behalf of Magaloza was attacked on the basis that the
statement was produced late
in the proceedings and that it was
fabricated and issue was taken with the language in which the
statement was taken and the language
Mandi and Banathi spoke.
Williams was able to explain why he disputed that the statement was a
fabrication. Mohammed never put
to Williams that Magaloza was not
threatened by Mandi and Banathi, he merely put that the statement was
a fabrication.
[60]
Mr Smit (Smit) testified for the Applicant
in his capacity as risk manager in charge of security. He testified
that he received
a message that he should take Baartman to his
residence as there were workers who invaded the yard and made
threats. He took Baartman
to Bishop Lavis and Baartman showed him
where he stayed, but when they arrived there, there were no workers
in the vicinity. He
met with Jassen and Esau and they told him that
there were a number of the Applicant’s employees at the house
and they threatened
to burn down the house should Baartman go to work
the following day. Smit left and went to Epping, where he reported
this to his
immediate head, who told him to get statements from Esau
and Jassen. He asked Esau and Jassen whether they would be able to
identify
any of the people who were at the scene and they volunteered
to go to the Applicant’s premises and to show Smit who the
individuals
were.
[61]
Smit fetched Esau and Jassen and took them
to the Applicant’s premises in Epping. As they were driving to
park, they passed
by the strikers on the premises and Esau and Jassen
started to identify the strikers as part of the group that went to
Baartman’s
residence. He told them to clam down as he could not
drive and look around. Smit took Esau and Jassen to his office where
he showed
them live feed video footage of the strikers outside and as
they pointed out individuals, Smit would zoom in on the screen and
take a photo of what appeared on the screen.
[62]
Smit explained that live feed was video
footage of events as they were happening.
[63]
Smit testified that he knew none of the
individuals who were pointed out during the identification process,
except Banati. He explained
that prior to them being pointed out, he
did not know them by face or by name that is why he had to take the
screenshot photos,
that were sent through to production where the
individuals were identified by the people who work closely with them.
He did not
tell Esau and Jassen whom to identify or who to point out,
as he did not know the individuals and it was impossible to tell them
whom to identify.
[64]
Smit also testified that the individuals
were identified through the window of the boardroom, which was close
to where the strikers
were standing and they were visible from there.
[65]
In cross-examination Smit made it clear
that he assisted in the identification process only in respect of
getting the video footage
and taking the screenshot photos of the
identified individuals. Esau and Jassen also did not know the names
of the individuals,
so he assisted in getting the names of the
individuals who were pointed out, as he also did not know their
names.
[66]
Smit testified that the individuals were
not identified from photos, but from the live feed video footage and
that the quality of
the live feed is much better and more clear than
the photos that were taken as screenshots from the live feed. Once
the individuals
were identified from the live feed and the
screenshots taken from the live feed, more clear pictures were
included as evidence.
[67]
Mr Olivier (Olivier) was the Applicant’s
security supervisor at Kraaifontein on 26 February 2015 and he
testified about the
events of that day. A strike was ongoing at the
time and he was called to the gate and told that there was a blue car
parked across
the road. He knew Banathi and Mandi as two of the
individuals that were standing across the road. He testified that
they spoke
to the casuals, but he was unable to understand the
conversation. When Banathi and Mandi left, the casuals told him that
they were
not coming to work, but they were going home as they were
threatened.
[68]
In cross-examination Olivier conceded that
they were talking loud, but it was not aggressive and Banathi and
Mandi did not carry
sticks or pangas and he did not know what was
said as the conversation was in Xhosa and he was unable to understand
it. Olivier
conceded that it was possible that the casuals would not
have told him that they were striking in support of the strike and
they
were not willing to take the strikers jobs whilst they were
fighting for wages.
[69]
The last witness called by the Applicant
was Baartman. Mr Baartman testified about how he felt because
striking individuals went
to his house. His evidence did not and
could not contribute to prove the charges levelled against the
employees as he made it clear
that he was not at home when they went
there and he could not identify the individuals who were present.
[70]
Despite the fact that Baartman’s
evidence made no contribution to prove the charges or to identify the
individuals, Mohammed
still saw the need to cross-examine him
extensively to the extent of 43 typed pages in the transcribed
record.
[71]
Mjanyilwa testified that he was on strike
and participated in the picket on the day striking individuals went
to Baartman’s
house (17 March 2015). He testified that he had
no knowledge of the strikers that went to Baartman’s house and
only learnt
about it the next day. His testimony was that he was not
part of the group that went to Bishop Lavis, as he does not even know
where Bishop Lavis is or where Baartman’s house is. He went
from the picket to Bonteheuwel to take a train to Khayelitsha
and he
went back to the picket the following day.
[72]
In cross-examination it was put to him that
both Esau and Jassen identified him as part of the group that went to
Baartman’s
house and there was no reason for them to lie about
Mjanyilwa.
[73]
Simizela testified that he was not part of
the group that went to Bishop Lavis. His testimony is that he
participated in the picket
in Epping at Bofors Circle and after they
finished picketing, they dispersed and from there he went to Elsie’s
River to take
a taxi home to Delft where he stays.
[74]
He testified that Jassen pointed him out
during the disciplinary hearing as one of the individuals who were
present at Baartman’s
house. He testified that he was not
identified by reference to a prominent scar he has. It appears from
the transcribed record
that the transcriber had difficulty at times
to transcribe the record as it was inaudible.
[75]
In cross-examination he testified that he
was unaware of the group that went to Baartman’s house, he only
learnt of the incident
the following day.
[76]
Guda testified that he participated in the
strike and picketing, but did not go to Baartman’s house as he
went home after
the picketing. He testified that Esau identified him
during the disciplinary enquiry as the part of the group that went to
Baartman’s
house and that he was the person who handed a letter
to Esau. It appears from the transcribed record that the transcriber
also
had difficulty to transcribe the record in respect of Guda’s
evidence, as it was inaudible at times.
[77]
Guda testified that he was unaware of the
group of people that went to Baartman’s house until he received
the notice to attend
a disciplinary enquiry. Prior to that, he had no
idea that a group went to Baartman’s house.
[78]
In cross-examination it was put to him that
he was identified as part of the group during the identification
process, the disciplinary
hearing and the arbitration proceedings and
the witness was clear about him because he was the person who handed
a letter to them
at Baartman’s house.
[79]
Mandi testified that he was not part of the
group that went to Baartman’s house on 17 March 2015. On that
day he was picketing
at Bofors Circle and when they were finished,
they dispersed and went home. They visited Banathi’s relative
in Langa and
only when they returned the following day, were they
told about the group that went to Baartman’s house.
[80]
Mandi testified that Esau and Jassen
identified him during the disciplinary hearing as the person who
spoke to them at Baartman’s
house. He however denied that he
ever went to Baartman’s house in Bishop Lavis.
[81]
In respect of the Kraaifontein incident
Mandi testified that he went to Kraaifontein with Banathi and Chris,
a shop steward and
convenor during the strike. They went to
Kraaifontein as employees who were on strike approached them and
informed them that whilst
the strike was ongoing, others were
working. They approached the casuals and asked them if they were
aware that there was a strike
ongoing. The casuals were unaware of
the strike action and they did not tell them what to do, they merely
informed them about the
strike. Mandi denied that they intimidated or
scared the casuals.
[82]
The cross examination of Mandi is not
transcribed. It appears from the transcript that the arbitration
proceedings continued on
13 November 2015, but the transcript of
those proceedings does not exist or simply did not make it to the
Court file. Be that as
it may, two more witnesses testified for the
employees and the transcribed record of their evidence is not before
Court.
The arbitrator’s findings
[83]
The arbitration proceedings were conducted
over a number of days and a total of 12 witnesses were called. The
incomplete transcribed
record comprises of 455 pages. The arbitrator
captured the issues and the evidence in almost 7 pages of the
arbitration award.
All this is indicative of the fact that a lot of
evidence was adduced and that the issues to be decided called for a
careful and
comprehensive analysis of the versions presented, the
evidence and the facts.
[84]
I found it most surprising that the actual
analysis of the evidence and arguments were captured in only four
paragraphs (paragraphs
45 – 48) of the award and a careful
reading of the award shows that the actual analysis and findings were
limited to two
paragraphs. Paragraph 45 contains no assessment or
analysis of the evidence and paragraph 48 deals with the appropriate
remedy.
[85]
The arbitrator’s findings are thus to
be found in paragraphs 46 and 47 of the arbitration award. In
paragraph 46 he made findings
in respect of the Bishop Lavis incident
and in paragraph 47 he made findings in respect of the Kraaifontein
incident.
[86]
In respect of the Bishop Lavis incident,
the arbitrator made the following findings:
86.1. The employees were
all alleged to have been part of the group that went to Baartman’s
house and threatened
to burn it down and they all denied being there;
86.2. The Applicant called
one direct witness, Jassen, to support the allegation;
86.3. It was never
explained why Esau was not called as a witness;
86.4. It was common cause
that Esau had problems to identify Banathi at the disciplinary
enquiry;
86.5. The evidence of a
single witness must be treated with caution;
86.6. Jassen insisted that
he focussed on the employees’ faces in identifying them, yet he
did not mention the
clearly visible scars of two of the employees and
he mentioned no distinguishing elements that allowed him to recognise
them;
86.7. Jassen’s
evidence was opposed by corroborating testimony;
86.8. The Applicant did
not provide the original video footage used to identify the
employees;
86.9. Baartman’s
evidence was irrelevant in proving who was at the house;
86.10. The
Applicant failed to prove on a balance of probabilities that the
employees were guilty of the allegation relating to
the incident at
Baartman’s house.
[87]
In respect of the Kraaifontein incident,
the arbitrator made the following findings:
87.1. Mandi and Banathi
were alleged to have threatened and intimidated casual workers at
Kraaifontein;
87.2. The Applicant
brought no direct evidence to support its case;
87.3. Magaloza’s
statement was allowed as hearsay but the arbitrator was not convinced
by the reasons for his
absence and the sudden appearance of the
statement;
87.4. The union’s
suggestion that the threat was a smokescreen to hide sympathy for the
strike is not improbable;
87.5. The Applicant failed
to provide any evidence from the other casual workers;
87.6. Olivier testified
that he could not pick up aggression in the conversation;
87.7. The employees denied
that they threatened or intimidated Magaloza or anyone else;
87.8. The Applicant failed
to prove Mandi and Banathi’s guilt.
[88]
In view of the findings made, the
arbitrator concluded that it followed that the employees’
dismissal was substantively unfair
and he ordered their retrospective
reinstatement without loss of benefits.
Analysis of the arbitrator’s
findings and grounds for review
[89]
The Applicant’s grounds for review
are that the arbitrator incorrectly considered irrelevant testimony
and / or failed to
consider relevant aspects of the testimony.
Further that he made mistakes in law relating to his evaluation of
the admissibility
and weight of the Applicant’s hearsay
evidence and his application of the cautionary rule to the testimony
of Jassen.
[90]
The Applicant’s case is that as a
result of the aforesaid, the arbitrator failed to apply his mind,
failed to determine the
dispute fairly, failed to determine the case
on the substantial merits and therefore made a decision no reasonable
decision maker
could reach.
[91]
The grounds for review and the findings of
the arbitrator should be considered in view of the Bishop Lavis and
Kraaifontein incidents.
Bishop Lavis incident: 17 March
2015
[92]
The Applicant relied on the evidence of
Jassen to identify the employees who were present at Baartman’s
house on 17 March
2015. The arbitrator found that the Applicant
failed to prove on a balance of probabilities that the employees were
guilty of the
allegation relating to the incident at Baartman’s
house.
[93]
The arbitrator’s finding was based on
three main considerations.
[94]
The first consideration relates to Esau and
the fact that it was never explained why Esau was not called as a
witness whilst it
was common cause that Esau had problems in
identifying Banathi at the disciplinary enquiry.
[95]
The Applicant takes issue with this and
submitted that the arbitrator drew an adverse inference from the fact
that Esau was not
called as a witness and in doing so he committed a
material error of law and applied the relevant principles
incorrectly, leading
to an unreasonable decision.
[96]
The second consideration relates to Jassen.
In respect of Jassen the arbitrator considered that Jassen was a
single witness and
the evidence of a single witness must be treated
with caution. He further criticized Jassen for the fact that he
insisted
that he focussed on the employees’ faces in
identifying them, yet he did not mention the clearly visible scars of
two of
the employees and he mentioned no distinguishing elements that
allowed him to recognise them. The arbitrator mentioned that Jassen’s
evidence was opposed by corroborating testimony of the employees.
[97]
The Applicant’s case is that the
arbitrator misapplied the cautionary rule applicable to a single
witness and the application
of this rule as a basis to reject
Jassen’s evidence, constituted a material error of law. The
Applicant’s case is that
the cautionary rule does not find
application in arbitration proceedings. Mr Bosch for the Applicant
submitted that where an arbitrator
applies caution to the extent that
he or she fails to undertake a full analysis of the evidence, the
process is excessively constrained
and amounts to bias against the
acceptance of the evidence of the single witness, which deprives the
relevant party a fair opportunity
to be heard. Ms Ralehoko submitted
that the arbitrator correctly applied the cautionary rule.
[98]
The third consideration was the fact that
the Applicant did not provide the original video footage used to
identify the employees.
[99]
The Applicant’s case is that the
arbitrator relied on the absence of video footage used to identify
the employees as a basis
to reject Jassen’s evidence. Mr Bosch
submitted that it was an irrelevant consideration as it was evident
from Jassen’s
evidence that no such video footage existed, as
the identification happened from a live feed video and the insistence
that the
Applicant possesses such footage, was based on a
misunderstanding.
[100]
In short the Applicant’s case is that
the arbitrator provided no proper basis for rejecting Jassen’s
evidence and preferring
that of the employees.
[101]
In my view there is merit in this ground
for review. The arbitrator was clearly faced with two conflicting
versions. On the one
hand the Applicant alleged that the employees
were present on 17 March 2015 when a group of strikers went to
Baartman’s house
and on the other hand the employees denying
that they were present and part of the group.
[102]
The
approach to be adopted by arbitrators when faced with two disputing
versions was set out by Van Niekerk J in
Sasol
Mining (Pty) Ltd v Ngeleni NO and Others
[1]
,
where it was held that the arbitrator must conduct an
‘
.
. . assessment of the credibility of the witnesses, a consideration
of the inherent probability or improbability of the version
that is
proffered by the witnesses, and an assessment of the probabilities of
the irreconcilable versions before the commissioner.
As Cele AJ (as
he then was) observed in Lukhnaji Municipality v Nonxuba NO and
others
[2007] 2 BLLR 130
(LC), while the LRA requires a commissioner
to conduct an arbitration hearing in a manner that the commissioner
deems appropriate
in order to determine the dispute fairly and
quickly, this does not exempt the commissioner from properly
resolving disputes of
fact when they arise.’
[103]
The arbitrator, faced with two conflicting
versions, had to follow the approach as set out by this Court and he
had to conduct an
assessment of the credibility of the factual
witnesses, their reliability and overall assessment of the inherent
probabilities
of the irreconcilable versions before him.
[104]
In
Sasol
Mining
the Court also held that it was
one of the prime functions of a commissioner to ascertain the truth
as to the conflicting versions
before him. The Court held at
paragraph 9 that:
‘
What
he manifestly lacked was any sense of how to accomplish this task, or
which tools were at his disposal to do so. The commissioner
was
obliged at least to make some attempt to assess the credibility of
each of the witnesses and to make some observation on their
demeanour. He ought also to have considered the prospects of any
partiality, prejudice or self-interest on their part, and determined
the credit to be given to the testimony of each witness by reason of
its inherent probability or improbability. He ought then to
have
considered the probability or improbability of each party’s
version. The commissioner manifestly failed to resolve the
factual
dispute before him on that basis. Instead, he summarily rejected the
evidence of each of the applicant’s witnesses
on grounds that
defy comprehension.’
[105]
Glaringly absent from the arbitration award
is an assessment of the credibility of the witnesses or the inherent
probabilities of
the versions presented. The arbitrator accepted the
employees’ version as corroborated and rejected Jassen’s
version
as a single witness, without providing any reasons why the
one version is to be preferred and the other to be rejected.
[106]
I do not intent to deal with every aspect
where the arbitrator failed to consider the evidence and the inherent
probabilities and
I deem this example sufficient to illustrate the
arbitrator’s failure in this regard: the arbitrator had to
consider the
prospects of partiality, prejudice or self-interest.
Jassen is not employed by the Applicant, therefore he does not stand
to gain
or lose anything by testifying on behalf of the Applicant.
The employees on the other hand were dismissed and sought
reinstatement.
Jassen explained how the employees were identified and
his evidence in this regard is supported by Smit, who also did not
know
the employees, with the exception of Banathi. The
arbitrator failed to consider crucial aspects of the evidence and the
inherent
probabilities.
[107]
In casu
the
award contains a detailed summary of the evidence, followed by an
analysis that is little more than a few remarks on the facts
before
the arbitrator. The essential ingredients of an assessment of the
credibility of the witnesses and the inherent probability
or
improbability of the versions before him, is missing. In my view the
arbitrator was wholly incapable of dealing with the disputes
of fact
and he failed to perform one of his primary functions, namely to
resolve disputes of fact.
[108]
The question whether the cautionary rule
applies in arbitration proceedings or not, is in view of my findings
neither here nor there.
One of the primary functions of the
arbitrator, namely to resolve disputes of fact, was performed in a
manner where he applied
caution to the extent that he failed to
perform a primary function in that he failed to undertake a full
analysis of the evidence
and the inherent probabilities, as he was
required to do.
[109]
The arbitrator did not undertake a full
analysis of the evidence and the probabilities as they presented
themselves during the arbitration
proceedings. The arbitrator did not
consider the employees’ evidence in light of the probabilities,
self interest and credibility
of the witnesses. It appears that the
arbitrator adopted a mechanical approach to accept the version of the
employees simply because
they were more than one and they
corroborated each other.
[110]
In
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[2]
Ngcobo
J stated at 268:
'[W]here
a commissioner fails to have regard to the material facts, the
arbitration proceedings cannot, in principle, be said to
be fair
because the commissioner fails to perform his or her mandate. In so
doing, in the words of Ellis the commissioner's action
prevents the
aggrieved party from having its case fully and fairly determined.
This constitutes a gross irregularity in the conduct
of the
arbitration proceedings, as contemplated by s 145(2)
(a)
(ii)
of the LRA. And the ensuing award falls to be set aside not because
the result is wrong but because the commissioner has committed
a
gross irregularity in the conduct of the arbitration proceedings.'
[111]
The same considerations apply to a commissioner who fails
properly to resolve an irreconcilable dispute of fact. For these
reasons,
the arbitrator’s award falls to be reviewed and set
aside.
[112]
In casu
the arbitrator failed to have any regard to the
credibility and reliability of any of the witnesses, nor did he have
regard to the
inherent probabilities of the competing versions before
him. That failure, and the fact that the award may have been
different
had the arbitrator properly acquitted himself, renders the
award reviewable on account of a gross irregularity committed by the
arbitrator in the conduct of the arbitration proceedings.
[113]
Having found that the arbitration award is to be reviewed and
set aside, it is not necessary to deal with the remaining grounds for
review.
[114]
I canvassed with Mr Bosch the appropriate relief and he
submitted that since the Applicant was denied a fair hearing, the
matter
should be remitted for a hearing
de novo.
I agree. Not
only is the record not in a complete state for me to finally
determine the dispute on the merits, I am also not in
a position to
make any finding based on demeanour or any other aspect that goes to
the question of credibility.
Order
[115] In the premises I make the
following order:
1. The
arbitration
award issued on 30 November 2015 under case number WECT7259-15
is
reviewed and set aside;
2.
The matter is remitted to the Commission
for Conciliation, Mediation and Arbitration for a hearing
de
novo
before another commissioner;
3. There is no order as to costs.
______________
Connie
Prinsloo
Judge
of the Labour Court
Appearances:
For
the Applicant
: Advocate C Bosch
Instructed
by
: Guy
& Associates Attorneys
For
the Third Respondent: Ms T Ralehoko of Cheadle Thompson & Haysom
Attorneys
[1]
(2011) 32 ILJ 723 (LC) at 727C-F.
[2]
(2007)
28 ILJ 2405 (CC)
;
[2007] 12 BLLR 1097
(CC),