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[2017] ZALCJHB 338
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Exxaro Coal (Pty) Ltd v Chipana and Others (JR2111/2014) [2017] ZALCJHB 338 (6 September 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
CASE NO. JR 2111/2014
In
the matter between:
EXXARO
COAL (PTY)
LTD
Applicant
and
GABRIEL
CHIPANA
First Respondent
DONALD
NKADIMENG
Second Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Third Respondent
Heard:
04 May 2017
Delivered:
06
September 2017
Summary:
Review application: No basis laid for
acceptance of hearsay
evidence. Commissioner correctly ruled against admission of
such evidence. Application dismissed.
JUDGMENT
BALOYI
AJ
Introduction
[1]
The arbitration award issued by the Second Respondent is subject
matter of this application. The Second Respondent in his capacity
as
the arbitrator issued an award in which the Third Respondent’s
dismissal was declared substantially unfair. He went on
to award the
Third Respondent relief of reinstatement with retrospective effect.
The Applicant is seeking the review and setting
aside of the award.
The reasoning of the Second Respondent coupled with the result in the
award formed the nucleus of the
Applicant’s grounds. In terms
of the Applicant’s grounds the award is mainly attacked for the
First Respondent’s
failure to apply rules of evidence most
particularly in relation to hearsay. The Third Respondent opposed the
application and more
of this appear hereunder.
Background
[2]
The Applicant dismissed the Third Respondent on 14 May 2014 after
finding him guilty of dishonesty. The charges emanated from
the Third
Respondent’s claims that he was capable of securing employment
for job seekers in exchange of cash payment. Two
acts of dishonesty
relate to the monies he allegedly collected from Ms Mokgadi Mange
(Mange) who sought employment for her niece
Ms Beaditse Thobane
(Thobejane) and from Mr Jerry Nong (Nong) who sought employment for
himself. In respect of Mange R5000-00 was
the amount involved and
R6000-00 for Nong. The Third Respondent was a full time shop steward
but made Mange and Nong to believe
that that he was working for the
HR department. The Applicant instituted an investigation upon
receiving complaints from Mange
and Nong. The complaints leading to
the investigation were lodged after it became clear to Mange and Nong
that the Third Respondent
was unable to deliver such promised jobs
and not in a position to refund monies paid to him. After conclusion
of the investigation
that was carried out by Ernest & Young on
behalf of the Applicant, the Third Respondent was charged and
dismissed after being
found guilty of dishonesty.
[3]
The dispute came before the Second Respondent who was tasked with
determination of substantive and procedural fairness of the
dismissal. He found the dismissal substantively unfair. The Applicant
called three witnesses to testify in support of its case,
namely,
Pieter Steyn (Steyn) and Paul Claasen (Claasen) who both conducted
the investigations in terms of the mandate given to
Ernest &
Young. The third witness was Isaac Chuene Nyaka (Nyaka) who came in
his capacity as employee relations manager. He
mainly testified about
the Third Respondent’s policies prohibiting sale of jobs as
well as the Applicant’s lack of
trust on the Third Respondent.
[4]
It came out during arbitration proceedings that Mange and Nong did
not testify at the disciplinary hearing on reason that they
felt
intimidated by the Third Respondent. The Applicant relied on some
affidavits deposed to by the pair together with Thobane’s
oral
evidence to secure the Third Respondent’s conviction. Based on
the very same reason they did not testify in the arbitration
proceedings and so did Thobane. Their evidence was tendered through
Steyn and Claasen. The Second Respondent arrived at his finding
on
the basis that the evidence tendered on behalf of the Applicant was
hearsay. As a result, he went on to exclude same and came
to a
conclusion that there was no shred of evidence to support the
Applicant’s allegations against the Third Respondent.
The
Applicant’s case
[5]
The Second Respondent’s award is primarily challenged for his
decision not to accept evidence contained in the affidavits
submitted
during arbitration proceedings. He failed to apply his mind to the
provisions of section 3 of the Law of Evidence Amendment
Act
[1]
despite his attention been drawn to same. He failed to take
into account the reason proffered for failure on the part of
the
Applicant’s witnesses to testify. The Applicant ignored other
evidence over and above the affidavits, namely oral evidence
of
Ernest & Young investigators, the text messages, voice recording
of conversation between the Third Respondent and Mange,
copies of the
screenshot corroborating Nong’s visit to the work place and
transcript of the disciplinary hearing. The Second
Respondent is
further attacked for the use of the word “bribery” in his
award which by implication boiled down to misconstruction
of the
charges. He failed to take into account that the Third Respondent was
an unreliable witness as he spent most of his time
explaining the
adulterous relationship he had with Mange. The Third Respondent’s
denial of wrong doing did not help his case
as there was overwhelming
evidence in addition to the affidavits that he committed the
misconduct in question.
[6]
The Second Respondent’s findings towards unfairness of the
dismissal are as submitted by Mr Matyolo for the Applicant,
not
supported by reasons. Instead of the Second Respondent paying
attention to the reasons placed before him to consider admission
of
hearsay evidence, he entirely rested his findings on the absence of
consent on the part of the Third Respondent. The award should
be
found unreasonable as it contains no reasons for such inadmissibility
finding. He made no finding as to the reason advanced
about witnesses
who were intimidated. Nothing in the award is indicative of the
Second Respondent’s attempt that he applied
his mind. This
could be seen from the overwhelming evidence in the form of text
messages, screen shots and recordings which were
not considered by
the Second Respondent. Contrary to the principles laid out in
Sidumo
and Another v Rusteburg Platinum Mines and Others,
[2]
the Second Respondent took no relevant circumstances into account
when making a determination in his award.
[7]
The essence of the Third Respondent’s opposition is that both
Steyn and Claasen were unable to attest to all material
issues of the
matter except conveying what they were told by the complainants.
Claasen was unable to certainly identify the voices
heard in the
recording and was also not conversant with the language used. The
Applicant’s failure to call witnesses was
wilful and had failed
to prove the alleged intimidation which the Third Respondent denied.
The text messages and computer screen
shots were not supported by any
testimony. The transcript of the disciplinary hearing cannot make
credible evidence as the hearing
was based on the very inadmissible
evidence.
[8]
According to Mr Moloto who appeared for the Third Respondent, no
exceptional reason was advanced as to why the witnesses were
not
brought to testify in the arbitration proceedings. The Third
Respondent’s denial of allegations against him effectively
placed a challenge on the Applicant to tender evidence to prove its
case which it did not. Nothing came to record regarding the
investigators’ efforts to deal with allegations of
intimidation. The Third Respondent never contradicted himself and the
Second Respondent was not required to rewrite the record in order to
show that he took all issues placed before him into account.
Analysis
[9]
What is shining through out the Applicant’s grounds of review
is that the Second Respondent had relied on the fact that
hearsay
evidence cannot be admitted without the Third Respondent’s
consent. Its arguments are that hearsay evidence should
have been
admitted because the witnesses whom their credibility the probative
value of such evidence depended could not testify
due to
intimidation. The Second Respondent should under such circumstances
have made a finding that good reasons existed for admission
of
hearsay evidence. Even if the affidavits were to be excluded, further
overwhelming evidence existed to demonstrate that the
Third
Respondent was guilty of the misconduct he was charged with.
[10]
Since the attack on the Second Respondent’s award is heavily
rested on his failure to apply the provisions of section
3 of the Law
of Evidence Amendment Act, this undoubtedly converts to errors of
law. The manner of execution of the arbitrator’s
mandate
towards resolution of disputes are clearly set out in section 138 of
the Labour Relations Act (LRA)
[3]
.
In
Swiss
South Africa (Pty) Ltd v Louw No. and Others
[4]
the
Court per Cele J took into account the provisions of section 138 of
the LRA (LRA) in circumstances where hearsay evidence was
an issue
and held in paragraphs 43 – 46 as follows:
“
[43]
Depending on circumstances of each particular case, hearsay evidence
may accordingly be admitted by an arbitrator in the proceedings
held
before him or her under the auspices of the CCMA. A further aid to
the arbitrator in this regard lies in section 138 of the
Act. It
provides:
“
The
commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the dispute
fairly and quickly, but must deal with the substantial merits of the
dispute with the minimum of legal formalities”.
[44] With this in mind, I
now return to the facts before me, to determine if the admission of
hearsay evidence in this case would
have been in the interest of
justice.
The nature of the
evidence
[45] A passenger of
Singapore Airline lodged a complaint with a staff member in
Singapore. This complaint was given to one Mr Richard
Lee who in turn
reduced the complaint into writing in the form of an e- mail message.
Mr Lee sent this e-mail message to one Mr
Yekohong Chung, in
Singapore. Mr Chung in turn, forwarded the same e-mail message to one
Mr John Murray by e-mail transmission.
Mr Murray appeared to be a
staff member of the applicant and was based in South Africa. The
applicant investigated the matter and
that led to the third
respondent being charged with misconduct. The first respondent took a
cautious approach, in my view, in this
regard and he said:
“
I
could see no documentation or affidavits from the Singapore passenger
wherein he directly complained against the actions of the
applicant.
Singapore Air or Yokehong Chung did not confirm the authenticity of
the complaint and that it had in fact been received
as a formal
complaint”.
[46] The admission of
this evidence, on this basis would be prejudicial to the third
respondent as it goes to the merits of her
defence. There is no
indication that there was no other way of proving the guilt of the
third respondent, if such evidence is excluded.
No basis has been
laid to support a claim that it would be difficult to get the
passenger or to present to him the initial version
of the third
respondent and invite him to comment thereon, before deciding to
charge the third respondent”.
[11]
In
Naraindath
v Commission for Conciliation, Mediation and Arbitation and
Others
[5]
the Arbitrator’s role was summed up in paragraph 27 with the
Court been alive to section 138 of the LRA provisions 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 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 arbitration
or that 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]
When giving consideration to the above, it appears with certainty
that application of discretion on the part of a decision
maker plays
a pivotal role. It is generally accepted that proper application of
discretion encompasses consideration of all factors
placed before the
decision maker (the Second Respondent in this regard). This point was
restated by the Labour Appeal Court with
clarity in
Matsekelong
v Shoprite Checkers (Pty) Ltd
[6]
at
paragraph 41:
“
[41] Section
3(1)(c) of the said Act confers a discretion on a court (or
tribunal)in terms of admitting hearsay evidence if, in
the opinion of
the court (or tribunal), as the case may be, it is in the interests
of justice to admit such hearsay evidence. The
fact that the
respondent’s representative would not have been in a position
to cross examine the author of, or deponent to,
the affidavit if it
was admitted, was not, in my opinion, a legally sound ground to have
refused admission of the affidavit, in
the light of section 3(1)(c).
That aspect of the matter would only be relevant on the question of
the evidential weight to be attached
to the affidavit evidence
concerned. As the matter stood, it did not appear that the
commissioner properly applied his mind on
this issue, if at all. In
my view, the commissioner’s failure in this regard constituted
a serious misdirection and a gross
irregularity, on the
commissioner’s part, in the conduct of the arbitration
proceedings, which rendered the award reviewable
and liable to be set
aside.”
[13]
The essence of this is that attaching weight to a particular piece of
hearsay evidence sought to be admitted cannot be used
as an
instrument to determine the admissibility of such hearsay evidence.
In this instant case the Second Respondent relied only
on consent as
a reason for his finding. That there was no consent on the part of
the Third Respondent was definitely not an issue
placed before the
Second Respondent for determination. The issue for determination in
so far as the admission of hearsay evidence
is concerned, is the
Applicant’s witnesses’ failure to testify due to
intimidation as pointed above. The Second Respondent
did not deal
with the issue and the Applicant’s calls for interference with
the award are largely based on this.
[14]
His failure in my view to decide on whether good reason existed for
witnesses’ failure to testify does not ordinarily
render the
award unreasonable. What needs to be considered, particularly where
the full record is available before the Court, is
whether in the
light of all material placed before the Second Respondent can his
decision be the one which reasonable decision
maker could not
reach
[7]
.
[15]
The Second Respondent’s omission to deal with reasons for the
Applicant’s witnesses’ failure to testify does
establish
an irregularity. The next question to be asked alongside the
Sidumo
test is whether such irregularity is so gross to such an extent that
it was calculated to prejudice the aggrieved party, if so
proved, the
decision is then liable to be set aside.
[8]
In dealing with this question in so far as this matter is concerned,
I sought guidance from the Labour Appeal Court’s
Fidelity
Cash Management Service v CCMA and Others
[9]
judgment
where the following was paragraph 98 said:
“
[98] It will often
happen that, in assessing the reasonableness or otherwise of an
arbitration award or other decision of a CCMA
commissioner, the Court
feels that it would have arrived at a different decision or finding
to that reached by the
commissioner. When that happens, the Court
will need to remind itself that the task of determining the fairness
or otherwise of
such a dismissal is in terms of the Act primarily
given to the commissioner and that the system would never work if the
Court would
interfere with every decision or arbitration award of the
CCMA simply because it, that is the Court, would have dealt with the
matter differently. Obviously, this does not in any way mean that
decisions or arbitration awards of the CCMA are shielded from
the
legitimate scrutiny of the Labour Court on review.”
[16]
It is thus imperative to enquire at this point whether a good reason
existed from the reading of the record for complainant
witnesses not
to testify. The reason proffered on a number of occasions from the
evidence tendered by Steyn and Claasen is that
the witnesses felt
intimidated. This surely founded on the affidavit deposed to by
Thobane on 02 April 2014 which the following
is revealed in
paragraphs 4 and 6 that:
“
4
After Mr Chipana learned
that my aunt and myself provided affidavits to the Exxaro risk
department that will be used in a disciplinary
against him he started
to intimidate my aunt and our family that he will take revenge by
killing us if we testify against him in
the disciplinary. That
is why my aunt does not want to testify in the disciplinary due to
the threats made against her and
her family.
6
I however would like to
state that we are very scared to testify as we feel that our lives
are in danger. My aunt and myself
however feel that by giving
us these threats is a way of them to avoid us from testifying.
The people who threatened us was
Mr Chipana.”
[17]
This affidavit was preceded by those made by Thobane herself, Mange
and Nong in February 2013 regarding the merit of their
complaints
against the Third Respondent. It bears mention that it was made
shortly prior to the disciplinary hearing. Interestingly,
Thobane
attended the hearing and testified. What deserves noting is that
nothing came out during arbitration proceedings to indicate
that the
alleged intimidation was still ongoing. No credible evidence was
tendered to suggest that the execution of the alleged
threat was
imminent. It further bears mention that Nong’s only affidavit
before the Second Respondent dated 27January 2014
contains no
allegation of intimidation. The cumulative effect of the above is
that the Applicant has failed to genuinely establish
a compelling
case for the admission of such evidence. This is irrespective of
whether a reason was given by the Second Respondent
for not admitting
hearsay evidence to the Applicant’s satisfaction or not.
[18]
The next question to be asked on assumption that I am wrong in my
finding above, which is unlikely, is whether the evidence
sought to
be admitted was of value towards proving fairness of the dismissal
had same been admitted? The contents of the affidavits
were placed in
dispute. Weighing such contents against the Third Respondent’s
denial of commission of misconduct together
with his undisputed
version that he had a relationship with Mange who did not want to
testify, the Applicant’s case was bound
to crumble for lack of
evidence in rebuttal of his version. The evidence tendered by
the Applicant’s investigators
was based on untested allegations
received from the complainants. For the irregularity to be
susceptible to the court’s interference,
the Supreme Court of
Appeal in
Herholdt
v Nedbank
[10]
at
paragraph 25 held as follows:
“
[25]
In summary, the position regarding the review of CCMA awards is this:
A review of a CCMA award is permissible if the defect
in the
proceedings falls within one of the grounds in s 145(2)(a) of
the LRA. For a defect in the conduct of the proceedings
to amount to
a gross irregularity as contemplated by s 145(2)(a)(ii), the
arbitrator must have misconceived the nature of
the inquiry 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,
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.”
[19]
In conclusion I do not find any reason for interference with the
Second Respondent’s award. In the circumstances the
Applicant’s
application is bound to fail. Both parties argued for costs against
each other. There is no reason for deviation
from the parties’
view in this regard. The costs should accordingly follow the order.
[20]
I am in the premise constrained to make the following order:
Order
1.
The review application is dismissed with costs.
__________________
M M BALOYI AJ
Acting Judge of the
Labour Court of South Africa
Appearances
:
For
the Applicant: Advocate. X Matyolo
Instructed
by: Shepstone & Wylie Attorneys
For
the Respondent: Mr B M L Moloto of Guy Gumbo Attorneys
[1]
Act
45
of 1998
[2]
[2007] 12 BLLR 1097 (CC)
[3]
Act
66 of 1995.
[4]
2006 4 BLLR 373
LC
[5]
(2000) 6 BLLR 716
(LC)
[6]
(2013) 2 BLLR 13
LAC
[7]
In Sidumo and another v Rustenburg Platinum mines Ltd & Others:
the reasonableness upon which the award may be assessed on
review
was formulated at paragraph 110 on the question whether the
Commissioner’s decision. “
is
the one that a reasonable decision maker could not reach”.
[8]
See De Van Loggerenberg, Erasmus Superior Court Practice (2
nd
Edition) @A2 - 134
[9]
(2008) 3 BLLR 197
LAC
[10]
[2013] 11 BLLR 1074
(SCA).