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[2017] ZALCJHB 217
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Cash Paymaster Services (Proprietary) Limited v Hlatswako NO and Others (JR906/13) [2017] ZALCJHB 217 (6 June 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
CASE
NO. JR 906/13
In
the matter between:
CASH
PAYMASTER SERVICES (PROPRIETARY)
LIMITED
Applicant
and
HELLEN
HLATSWAKO
N.O
First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION Second
Respondent
LEONARD
NTSOKO
Third Respondent
Heard
: 4 MAY 2017
Delivered
: 6 June 2017
Summary
: Review application, Commissioner entering the arena in a manner
consistent with cross examination
and embarked on
personal
attacks on witnesses sufficient to find
bias.
Commissioner
awarding relief that is outside her powers. Arbitration award
reviewed and set aside.
JUDGMENT
BALOYI
AJ
Introduction
[1]
The arbitration award
sought to be reviewed and set aside was issued by the Third
Respondent sitting as Commission for Conciliation
Mediation and
Arbitration (CCMA) arbitrator. The Third Respondent’s dismissal
was in terms of the award found to be unfair
and relief of
reinstatement with back pay was awarded. The leading contention
within the Applicant’s grounds happened
to be
bias.
The Third Respondent’s opposition of the review application is
accompanied by some concessions on the issue of
bias.
However, the Third Respondent viewed the
bias
complained about as
not having major effect to render the award reviewable. More on
this appear fully hereunder.
Factual
background
[2]
The Applicant dismissed
the Third Respondent on 29 October 2012 for late coming with a
further sanction of final written warning
in respect of other charges
he was found guilty on. The charge of late coming was the main issue
for discussion in the arbitration
proceedings. It came to record that
the Third Respondent was at the time of his dismissal sitting on a
final written warning that
was still valid. On 19 August 2012 the
Third Respondent arrived some three hours late without notifying his
manager prior to the
starting time that he would not arrive on time.
He was supposed to commence his shift at 06h00 on that particular
day. The Third
Respondent’s explanation for such lateness was
that he was on the night of 18 August 2012 arrested for driving under
the
influence of alcohol. He was as a result detained at Diepkloof
police station in Soweto. The explanation turned out not to be
satisfactory
to the Applicant and the disciplinary proceedings were
instituted against him. The explanation was according to the
Applicant
not truthful as he failed to provide proof that he was
indeed arrested.
[3]
As the Applicant
persisted with demand for proof and the relevant case number, the
Third Respondent eventually stated that he was
only detained with the
sole purpose of having him to sleep the alcohol off in his system.
There was no case recorded against him
and he used an incorrect name.
Some two months after the incident, the Third Respondent deposed to
an affidavit on the understanding
that it would constitute proof of
his detention. The affidavit showing that oath was administered by an
officer at Diepkloof Police
Station read as follows:
“
This
is to certify that I Leonard Ntsoko was detained at diepkloof police
station on the night of 18 August and released on 19 August
for
public drankness. There were no charges made. Therefore no charge
sheet was filled. Hence there was no case issued” (sic
)
[4]
The Applicant found the
explanation to be lacking in honesty hence the disciplinary steps
were taken. The Third Respondent
contended that he did contact
the Respondent’s standby number at 07h00 and left a message
with his colleague Mr Mpupu that
he would be arriving late. It
became apparent that Mpupu did not dispute receiving the Third
Respondent’s call however
he was not specifically advised to
inform the Manager. It came to record that the Applicant had as
a result of the Third
Respondent’s conduct lost trust in him.
The
arbitration proceedings and award
[5]
The First Respondent came
to conclusion that the dismissal was both substantively and
procedurally unfair. Her conclusion
that there was no fair
reason for dismissal was firstly wholly rested on the rule which she
found not to be existent regarding
late coming. Secondly that
the contract of employment only provides for absenteeism rather than
late coming. Her finding
on non-existence of the rule was
rooted on the Applicant’s failure to produce the disciplinary
code. She found it odd
that the final written warning was
issued without prior written warnings. She equated the status
of the officer who administered
oath in the Third Respondent’s
affidavit to that of a witness regarding the detention. According
to the First Respondent
the officer would not have administered such
oath if the Third Respondent was never detained. With regard to
the procedure
she found the dismissal unfair on the basis that the
Third Respondent was told prior to the disciplinary hearing sitting
that legal
representation was not allowed. She held that the Third
Respondent should have been informed that the representative must
appear
and make an application for legal representation on his
behalf.
[6]
When awarding relief to
the Third Respondent, she summoned up her award in paragraph 20 as
follows;
“
20
When a dismissal is substantively unfair I am required to reinstate.
However, the Applicant has submitted in his closing
argument that he
requires compensation. I am reluctant to compensate the
Applicant in that should I award compensation his
employment records
will not be amended and dismissal will hang like a sword on his head
when he will be looking for employment.
However, if I reinstate
his record of employment will be amended and he will be paid
retrospective pay which would amount to the
same as compensation and
he can still resign if indeed he no longer wants to be in the
employment of the Respondent.”
The
review application
[7]
Bias
on
the part of the First Respondent appeared to be a dominant factor on
the Applicant’s grounds in relation to conduct of
arbitration
proceedings. Firstly, she was cross-examining and tormenting the
Applicant’s witnesses while she remained lenient
on the Third
Respondent. Secondly, for criticizing the Applicant about existence
of the rule while she in fact denied the Applicant
an opportunity to
produce the disciplinary code. Thirdly, chastising the Applicant’s
witness for not considering case law
when making a disciplinary
hearing outcome. The Applicant brought the following episodes of
misconduct on the part of the First
Respondent:
7.1
During cross-examination of the Applicant’s witness who was
also a chairperson of the disciplinary
hearing the First Respondent
constantly took over cross-examination from the Third Respondent’s
representative in this fashion;
“
COMMISSIONER:
Because those are the rules. Remember you have to prove that
there is a rule.
MS
MC DONALD:
Yes
I am aware of that.
COMMISSIONER:
Now if you did not bring the
document how do you prove that there is a rule?
MS
MC DONALD:
There
are many other ways to prove a rule besides the Disciplinary Code and
Procedure.
COMMISSIONER:
Name me one??
MS
MC DONALD:
The
fact that he had previously been informed and disciplined for the
rule, which means that there has to be a rule, which means
that he
was also aware of the rule.
COMMISSIONER:
No but Madam they are
disputing these (inaudible).
MS
MC DONALD:
But
I mean he has got a final written warning for the same thing which
confirms the fact that there is a rule.
COMMISSIONER:
You are supposed to bring the
rule if they are disputing the rule.
MS
MC DONALD:
Yes
but I did not know they were disputing the rule. I do not…
Our manuals are huge unfortunately.
COMMISSIONER:
Madam have you seen them in
the court? They will drive trolleys of Arch Lever files to come
and prove a case. They will
bring a whole library…
(intervenes)
MS
MC DONALD:
But
this is not a court. This is not a court.
COMMISSIONER:
Even if it is not a court…
(intervenes)
MS
MC DONALD:
It
is not… (intervenes).
COMMISSIONER:
Then how do you prove that
there is a rule if you did not bring the Code?
MS
MC DONALD:
Through
leading evidence.
COMMISSIONER:
What evidence Madam?
MS
MC DONALD:
Well…
(intervenes)
COMMISSIONER:
Because they are obviously
going to dispute it now and then what are you going to…
(intervenes)
MS
MC DONALD:
So
they are going to dispute that there is a rule that you have to be at
work on time essentially.
7.2 The First Respondent
further entered the arena on the very same subject of the
disciplinary code and procedures.
She showed no interest in the
Applicant’s witness’ offer to bring same as she had
another case to deal with:
COMMISSIONER:
And if I decide to use a page
out of this book right - I cannot tear it out. I will give you
a photocopy now. I have
got a copy of that. Let us just
say this is a copy of that page right. Now when I come back to
you this book is gone
now. When I show you this book will you
believe that this is a page of that particular book?
MS
MC DONALD:
Considering
the fact that (inaudible) my case and this has been presented like
this and no one has ever told me that they now want
to see the whole
Staff Manual.
COMMISSIONER:
Look Madam because it was
presented maybe it was not disputed at that point in time but in this
particular case obviously when they…
(intervenes)
MS
MC DONALD:
Well
can I say … (intervenes)
COMMISSIONER:
It means they are disputing
it.
MS
MC DONALD:
I
can arrange to bring the whole file here but I do not carry it around
with me. We have got three manuals that are this thick
for this
one specific, for Cash Paymaster Services.
COMMISSIONER:
But Madam you are supposed to
bring it because it could be disputed.
MS
MC DONALD:
Okay
well I am now saying I can bring it if you want to see it.
COMMISSIONER:
When? Because…
(intervenes)
MS
MC DONALD:
I
can arrange to have it delivered now.
COMMISSIONER:
Because I have got another
case.
MS
MC DONALD:
I
can phone and I can arrange that the driver bring it.
COMMISSIONER:
Now we should stop
these proceedings and wait for the book?
MS
MC DONALD:
No
(inaudible) continue testifying and I will arrange…
(intervenes)
COMMISSIONER:
(Inaudible) (intervenes)”
7.3 The First Respondent’s
attack on the witness under cross-examination went on further as
follows;
COMMISSIONER:
Now tell me after reading
that how am I supposed to make a decision on that when you did not
put this as part of evidence?
MS
MC DONALD:
Okay
but madam I am here to testify on my recommendation.
COMMISSIONER:
I am asking you how –
where would I have that Grogan for because you were supposed to have
included it in your outcome.
MS
MC DONALD:
Okay
Madam I have never before been made aware of the fact that I would
have to do such a thing because we have never done that
for any of
our recommendations. As I have said in the past our
recommendations had been accepted by the CCMA as it is now
without
any case law.
COMMISSIONER:
Because now you are reading
from a book unless you are going to submit that book as evidence and
you are going to give me a copy
and you are going to give him a copy?
MS
MC DONALD:
Okay
well this is my only copy. I do not… But Madam you are
asking me how did I come to my decision. I am telling
you based
on my experience with reading Grogan, of reading all this case law
you know. You know when you read certain cases
you are
constantly updating and you are constantly reading cases.
COMMISSIONER:
Now we are supposed or be
magicians is that what you are insinuating?
MS
MC DONALD:
No
I am insinuating that.
COMMISSIONER:
What are you saying because
you are not giving us that information?
MS
MC DONALD:
Yes
but I am verbally telling you this information.
COMMISSIONER:
You are constantly referring
to information that is not here. You refer to a procedure which
is not here. Now you are
referring to Grogan and you did not
even submit it as evidence”
7.4 When the Applicant’s
representative/witness indicated her intention to apply for the First
Respondent’s
recusal, her responses demonstrated unwillingness
to listen to the Applicant’s submissions and diverted to a
completely different
issue.
“
MS
MC DONALD:
Okay
you now what? I am actually going to raise an objection and lodging a
request for your recusal because you are…
I have never
ever had a Commissioner ask so many questions of a witness along the
lines and further to that the Representative
is currently asking me
questions. I am not being given an opportunity to answer his
questions. I am busy explaining
why I have done what I have
done. Then you keep attacking me with the way you think I
should have done it. I have explained
to you that in the past
the CCMA has accepted it but you are continuously attacking me.
COMMISSIONER:
I am not the CCMA. I am
Commissioner Hellen Hlatswako.
MS
MC DONALD:
I
am aware of that.
COMMISSIONER:
And I am sitting
here…(intervenes)
MS
MC DONALD:
And
I am now lodging a request for your recusal.
COMMISSIONER:
1 – I am sitting here
trying to determine this case. You are not giving me…
You are not putting all your evidence
on the table as you are
supposed to – number 1. Number 2 you are not answering
questions that you are supposed to answer.
I keep on asking
clarifying questions…(intervenes)”
7.5 The First Respondent
kept on avoiding the recusal issue, instead she decided to go
personal on the Applicant’s
witness about her qualifications
and experience. She immediately thereafter directed the Third
Respondent’s representative
to proceed with cross-examination
without entertaining the recusal:
“
COMMISSIONER:
Madam what position do you hold?
MS
MC DONALD:
I
am the IR Manager.
COMMISSIONER:
And what qualifications do
you have?
MS
MC DONALD:
I
have got a law degree.
COMMISSIONER:
What law degree?
MS
MC DONALD:
An
LLB.
COMMISSIONER:
LLB?
MS
MC DONALD:
Yes.
COMMISSIONER:
What else?
MS
MC DONALD:
That
is it
COMMISSIONER:
That is it?
MS
MC DONALD:
Yes.
COMMISSIONER:
And what experience do you
have in IR?
MS
MC DONALD:
I
have been in IR for the last couple of years.
COMMISSIONER:
Can you give me what those
couple of years are? Do you see how you answer questions…(intervenes)
MS
MC DONALD:
I
cannot say …(intervenes)
COMMISSIONER:
I am asking how long, you say
a couple of years. Now I am supposed to know what a couple of
years mean? You see the
way you answer questions?
MS
MC DONALD:
Well
it should be around since 2008.
COMMISSIONER:
And tell me have you done any
qualification on Labour Relations?
MS
MC DONALD:
No
I have got my law degree (inaudible)
COMMISSIONER:
But have you done anything on
Labour Relations?
MS
MC DONALD:
No
I just got my LLB.
COMMISSIONER:
Proceed Ntate?”
7.6 The First Respondent
had to be told for the third time about the application for recusal,
the record without doubt
shows that she did not take the move kindly:
MS
MC DONALD:
Thank
you Commissioner but I would like a response to my request for
recusal. I have made an application.
COMMISSIONER:
If you want to?? Make a
proper application we will stop and make an application. The
Respondent is going to make an application
for
(FIDDLING
NOISE)
Proceed.
MS
MC DONALD:
Are
we proceeding right now (inaudible) going off record or…?
COMMISSIONER:
Yes we are proceeding.
MS
MC DONALD:
Alright
well as I have previously stated you are coming across as excessively
biased.
COMMISSIONER:
You are not saying you are
making an application. Make an application. Tell this
recorder that you are making an application
for what and for what
reasons.
MS
MC DONALD:
Okay
well I am making an application for your recusal
COMMISSIONER:
Proceed?”
7.7 The First Respondent’s
reasoning on the ruling to the recusal application glaringly left
more questions than
resolution of the issue placed before her;
“…
The
reason at this point in time I am taking the inquisitorial route is
because the very Representative of the Respondent is the
witness.
Now how am I supposed to take an adversarial route when the
Representative is not there? So I am bound to
ask clarifying
questions. That is the first thing. Second thing some of
the things you are saying madam really for
a person that is holding
the position that you are holding really because you should know that
when a matter you cannot decide
on hearsay evidence. I mean
really. I am supposed to as a Commissioner to decide whether
you applied you mind or not
and if you are answering questions on a
general tine and you are not giving me specifics how am I supposed to
ask?
Should
I just leave it like that and not ask clarifying questions? Is
that what you are asking me? Because I am asking you
how long?
You answer a couple of, I am not sure. That is what you
answered. How did you come to that is
the question I would ask
you and you would go on and on and on on irrelevant things. You
would even bring documents which
are not submitted as evidence.
We
asked you where is the procedure if you are relying on the
procedure? You did not bring it. I asked you when you
are
saying gross how did you get to gross? You tell me you
consulted Grogan. You did not eve include it in your outcome.
You did not even consult it because you are saying to me look madam
Commissioner as I have read it wherever I read it when I read
it.
I knew it from when I read it. Number 2 you are also referring
to a Grogan I do not know what. Not even the
latest Grogan. I
mean really you know if you are going to bring Grogan in is it not
prudent that you give the other side
a copy, giving me a copy so that
I can see what you are reading and it can be tested?
MY
RULING THEREFORE I AM PROCEEDING WITH THIS MATTER
”
[8]
After the application for
recusal the attacks continued on other points ranging from the
witness’ failure to bring her notes
in spite of the transcript
of disciplinary hearing being made available as well as failure to
include case law in her outcome.
The Applicant’s other witness
Megashen Moodley was also not spared of these continuous attacks from
the First Respondent.
For the sake of prolixity, I deem it not
necessary to record many more extracts of the record.
[9]
The Applicant’s
further attack on the award is that the First Respondent
exceeded her powers in awarding relief
of reinstatement in a
situation where the Third Respondent made it clear that he was
looking at compensation only.
[10]
The Third Respondent’s
contentions in defending the First Respondent’s award are that
he did call the Applicant to report
that he would arrive late.
Furthermore, there was no specific rule that the Third Respondent had
a duty to inform his manager about
lateness.
Evaluation
[11]
Section
138 of the Labour Relations Act
[1]
(the LRA) gives statutory force to the legal principles as to
parameters within which Arbitrators should conduct arbitration
proceedings.
In
Naraindath
v Commission for Conciliation Mediation and Arbitration and Others
[2]
the Arbitrator’s role was summed up in paragraph 27 as follows:
“
[27]
In my view it is perfectly clear in these
circumstances that a complaint that a commissioner has conducted
proceedings in a way which differs from the way in which the same
dispute would be dealt with before a court of law cannot as such
succeed. It is only where the person seeking to challenge the
commissioner’s award can point to specific unfairness
arising
from that action by the commissioner that a proper ground for review
is established. A failure to conduct arbitration proceedings
in a
fair manner, where that has the effect that one of the parties does
not receive a fair hearing of their case, will almost
inevitably mean
either that the commissioner has committed misconduct in relation to
his or her duties as an arbitrator or that
the commissioner has
committed a gross irregularity in the conduct of the arbitration
proceedings (see section 145(2)(a)(i) and
(ii) of the LRA;
McKenzie
The law of Building and Engineering Contracts and Arbitration 5ed at
188-189).”
[12]
The
Court has on countless occasions warned that the Commissioner’s
active participation has to be evenly balanced in order
to eradicate
any perception of
bias.
In
Vodacom
Service Provider (Pty) Ltd v Phala
[3]
the court had this to say on this point at paragraph 13
“
13
A commissioner has a
discretion about how the arbitration should be conducted. A
commissioner may decide to adopt an adversarial
approach or an
inquisitorial approach. In an inquisitorial approach the commissioner
is in control of the process. The commissioner
plays a more active
role in the hearing, calling witnesses and interrogating them to
ascertain the truth. The commissioner cannot
abandon the
well-established rules of natural justice and must be careful to
guard against creating a suspicion of bias. In this
regard see
Mutual
and Federal Insurance Co Ltd v CCMA and Others
[1997]
12 BLLR 1610
(LC) at 1619 20 and
County
Fair Foods (Pty) Ltd v Theron NO and Others
(2000)
21 ILJ 2649 (LC).
[13]
The court further went on
at paragraph 15 to hold that;
“
15
A commissioner is required to conduct the proceedings in a
fair, consistent and even handed manner. A commissioner cannot assist
or be seen to assist, one party to the detriment of the other. A
commissioner cannot put to witnesses his propositions, should
not
interrupt the witnesses’ answers, challenge the consistency of
a witness with his own evidence, indicate that he doubted
the
witness’s credibility, or make submissions regarding the
construction of evidence”.
[14]
Given the First
Respondent’s continuous hard approach on Applicant’s
witnesses as against the softest on the Third Respondent,
her
unequivocal intentions to assist the Third Respondent at Applicant’s
expense is demonstrable. A simple matter to be considered
on its
substance rather than form ended up being escalated to a most
legalistic duel as the First Respondent showed no regard to
considering the merits of the matter with minimum of legal
formalities. Her experiences of having seen parties with trollies
loaded
with library material in court and criticism towards the
disciplinary hearing chairperson for not referring to case law is
indicative
of her failures, horribly so, to act in accordance with
the mandate conferred to her in terms of section (138(2). Ironically
the
First Respondent herself did not refer to any case law for the
findings she made in the award. The only conclusion to be drawn from
this is that her conduct of arbitration proceedings was not aimed at
evenly resolving the dispute within her powers but to unduly
assist
the Third Respondent.
[15]
I must on the other hand
not ignore the challenge the First Respondent was facing in dealing
with a matter where the chairperson
of the disciplinary hearing came
into arbitration as representative of the employer and then as a
witness.
[16]
This often leads to some
compromise in one way or another particularly when it comes to
observance of rules of evidence. It would
seem that the First
Respondent had a dilemma about allowing a witness who was already
under cross examination to leave the stand
and secure a document to
support her case. The simple approach was rather to make a
determination whether any weight should be
attached to the evidence
submitted late in the proceedings. This was surely not the First
Respondent’s scope as she was,
firstly focused on the next case
she had to deal with. Secondly the unavailability of the document
simply implied that it did not
exist, therefore there was no rule in
place. This was despite a request to make it available which in is
undoubtedly equivalent
to setting a party to failure.
[17]
The representative’s
additional role of a witness is not a forbidden practice but should
be discouraged. The chairperson is
naturally viewed as an impartial
decision maker who is not serving the interest of any party but with
a duty to ensure that fairness
prevails. It becomes extremely
inappropriate that a chairperson who should testify before the
arbitrator on procedural issues happens
to find himself sunken into
the merits of the dispute in both representative and witness
capacities. This creates difficulties
for the arbitrator to draw a
line on what is placed before himself by the representative/witness
partly under oath and otherwise.
Legally speaking representation in
labour disputes is not reserved. This type of practice if adopted by
representatives who happen
to be officers of the court ethical
questions are likely to arise.
[18]
In so far as the relief,
the First Respondent had certainly exceeded her powers by blatantly
awarding reinstatement where the Third
Respondent had asked for
compensation. This award of relief is in contrast to provisions of
section 193(2) of the LRA and untenable.
[19]
When considering that the
hearing was conducted in such an extremely unbalanced manner coupled
with incompetent relief awarded,
a conclusion that parties did not
have a fair hearing in the hands of the First Respondent is the most
appropriate. The Court in
applying its supervisory role over the CCMA
or Councils puts the matter to finality by determining the matter
itself where the
complete record is placed before the Court. In this
instant case I am not inclined to do so as the record is premised on
proceedings
riddled with irregularities. By doing so, gross injustice
may prevail.
[20]
The Third Respondent has
conceded that the Second Respondent’s conduct was consistent
with
bias
.
On the other hand he saw it necessary to cling onto the award which
its outcome is questionably beneficial to him. It is regrettable
that
the dispute between parties will remain in a farther position from
finality as the only appropriate order is to refer the
matter back to
the CCMA for arbitration
de
novo
. I have no
willingness to consider awarding of costs as the litigation between
the parties is still on going. I have also taken
into account that
the circumstances leading to the review of the award did not come as
fault attributable to the parties. No cost
order was asked for
against the First and Second Respondents, I will therefore not
entertain this subject beyond this point.
Order
[21]
The following order is
therefore made;
1. The arbitration award issued by the
First Respondent is reviewed and set aside.
2. The dispute is referred back to the
Second Respondent for arbitration
de novo
before any other
Arbitrator than the First Respondent.
3. There is no order as to costs
___________________
M
Baloyi
Acting
Judge of the Labour Court of South Africa
Appearances
:
For
the Applicant : Advocate. W Hutchinson
Instructed
by : Fluxmans
Incorporated
For
the Third
Respondent :
Mr A Goldberg of Goldberg Attorneys
[1]
Act 66 of
1995 as amended
[2]
(2000) 6 BLLR 716 (LC).
[3]
2007 28 IJL 1335 LC