About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2017
>>
[2017] ZALCCT 22
|
|
Sceptre Fishing (Pty) Ltd v Swanepoel and Others (C351/2016) [2017] ZALCCT 22 (30 May 2017)
Not
reportable
Of interest to other
judges
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 351/2016
In
the matter between:
SCEPTRE
FISHING (PTY) LTD
Applicant
and
ADAM
KLAUS SWANEPOEL
First Respondent
SOUTH
AFRICAN PELAGIC
FISHERMEN’S
UNION (SAPFU)
Second Respondent
CCMA
Third Respondent
ANTHONY
VERHOOG N.O.
Fourth Respondent
Heard
:
16 March 2017
Delivered
:
30 May 2017
Summary:
Review – unfair labour practice. Failure to pay bonus. Crucial
witness not called. Remitted for fresh
arbitration.
JUDGMENT
STEENKAMP
J
Introduction
[1]
A fisherman’s life is not an easy one, as the Afrikaans poet
Uys Krige reminds us:
“
Ken
jy die see, Meneer, ken jy die see?
Hy
lyk nou soos jou voorstoep blinkgeskuur
en
kalm soos min dinge hier benee
maar
hy's gevaarliker as vlam of vuur
Dan
sê jy nog, Meneer, die vis is duur...
Wat
van die storms wat nooit ophou raas?
Jy
sit pal in jou kliphuis, klam en guur,
en
hoor die wind al woester, wreder blaas
en
daar's geen sprokkel hout meer vir jou vuur
Dan
sê jy nog, Meneer, die vis is duur.
Was
jy al van jou bootjie soos ʼn veer gevee
deur
ʼn grys golf hoog soos ʼn tronk se muur
Wat
help dit om te spartel en te skree: "Nee! Nee"!
Sluk
jy eers daardie waters sout en suur?
Dan
sê jy nog, Meneer, die vis is duur...
Sien
jy die krom ou vroutjie daar, Mevrou Mathee,
Wat
telkens ver, ver oor die golwe tuur?
Sy
dink dié briesie bring
haar
seuns betyds terug vir tee.
Hul
slaap al drie agter die kerkhofmuur.
Dan
sê jy nog, Meneer, die vis is duur...”
[2]
The applicant, Sceptre Fishing (Pty) Ltd, applies to have an
arbitration award by the fourth respondent, Commissioner Anthony
Verhoog, reviewed and set aside. He found that the applicant
committed an unfair labour practice by refusing to pay the first
respondent, Adam Swanepoel, a bonus in December 2015.
Background
facts
[3]
Mr Swanepoel is the first engineer on the company’s fishing
vessel,
Wafra
.
[4]
The company implemented a remuneration policy on the
Wafra.
In
terms of the policy, it would pay an annual bonus to all crew members
provided they caught 95% of the fish landed of their allocation,
subject to attendance, efficiency and good conduct. On 18 December
2015 it told Swanepoel that he did not qualify for a bonus.
He
referred an unfair labour practice dispute to the CCMA in terms of s
186(2)(b) of the LRA. Commissioner Verhoog found that the
failure to
pay a bonus was an unfair labour practice. He ordered the company to
pay Swanepoel his bonus to the value of R 183 634,
00.
Review
grounds
[5]
The applicant submits that the arbitrator committed gross
irregularities in the conduct of the arbitration proceedings and
rendered an arbitration award that a reasonable arbitrator could not
reach on all the material that was before him. More specifically,
it
argues that the arbitrator:
5.1
incorrectly concluded that the employee was not familiar with the
company’s policy document;
5.2
incorrectly recorded facts which, cumulatively, impacted on his
ultimate decision whether the
company had committed an unfair labour
practice; and
5.3
found that the company had been inconsistent in circumstances where
there was no basis for that
finding.
[6]
Mr
Cassells
also argued that the Commissioner committed a
gross irregularity by failing to inform the employer of the
consequences of failing
to call a witness.
Evaluation
/ Analysis
[7]
It is perhaps prudent to start with the last ground of review. If
that is successful, the dispute would in any event have to
be
remitted and the other issues can be canvassed afresh.
[8]
In his analysis of the evidence and arguments, the arbitrator found:
“
There
was no evidence before me to show that the [employee] had been made
aware of the criteria [to qualify for a bonus] or reasonably
ought to
be aware. This evidence is crucial because the [company’s]
contention was that it applied the criteria on giving
bonus solely in
terms of this policy.”
[9]
During the arbitration proceedings, the company tried to introduce
the evidence of Hercules Roelofse by means of affidavit.
It contends
that the affidavit contained crucial information, as it recorded that
Roelofse had spoken to the employee about his
remuneration. This
evidence was indeed crucial, as the Commissioner pointed out, as
Roelofse had to explain the policy to crew
members in his capacity as
human resources representative. He stated in his affidavit:
“
Van
my pligte behels om die dienskontrakte en die vergoedingskale met die
bemannningslede te bespreek en te verduidelik en te sorg
dat dit op
datum is.”
[10]
When it was put to Swanepoel under cross examination that it was his
responsiblity to familiarise himself with the policy,
he replied:
“
Hercules
Roelofse het vir my gesê ons kry … ek en hy kry R55 ‘n
ton en dit is waar dit gebly het.”
[11]
When the company’s representative tried to put to him that
Roelofse had had more detailed discussions with him, the employee’s
representative objected. It is in those circumstances that Mr
Cassells
argued that the Commissioner should have made the
employee and his representative – a trade union official –
aware of
the fact that they should call Roelofse to give direct
evidence.
[12]
The reason why the employee did not call Roelofse is that he
(Roelofse) was required to be at the vessel at 13:00 on the day
of
the arbitration. Mr Stephen Knobel testified that, although a vessel
going out to sea is dependent on the weather, Roelofse
could not be
there as the “skipper het ‘n tyd gegee vir eenuur
vanmiddag moet hulle teenwoordig wees om see toe te
gaan.”
[13]
The employer may well be criticised for not having made alternative
arrangements in order for Roelofse to be in attendance.
But its
argument is that, given the Commissioner’s view that his
evidence was crucial, the Commissioner should have alerted
the
employer to this fact and, if necessary, stood the matter down in
order for Roelofse to be called.
[14]
The Labour
Appeal Court had occasion to deal with a similar situation in
Matsekoleng
v Shoprite Checkers (Pty) Ltd
.
[1]
In that case, the Commissioner refused to admit an affidavit which
“went to the heart of the issue”. The LAC held that
the
affidavit impacted on the substantive aspect of the employee’s
case and that the Commissioner should have admitted it
and dealt with
the weight to be attached to it. The court said:
[2]
“
[41]
Section 3(1)(c) of the [Law of Evidence Amendment Act 45 of 1988]
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.
[42]
In any event, it seemed to me that, by applying thepre-1988 strict
common law rule against hearsay evidence on the admission of the
affidavit, as the commissioner apparently did, the commissioner
did
not thereby ‘deal with the substantial merits of the dispute
with the minimum of legal formalities’ as required
of him by
section 138(1) of the LRA. In
Local Road Transportation Board and
Another v Durban City Council
the Appellate Division (now the
Supreme Court of Appeal) (Holmes JA) stated:
‘
A
mistake of law per se is not an irregularity but its consequences
amount to a gross irregularity where a judicial officer, although
perfectly well-intentioned and bona fide, does not direct his mind to
the issue before him and so prevents the aggrieved party
from having
his case fully and fairly determined.’
[43]
In my view, therefore, the failure by the commissioner to apply
his
mind properly on the issue of admissibility of Mr Roberts’
affidavit constituted a material error of law and a gross
irregularity on the part of the commissioner which prejudiced the
appellant in his right to a fair hearing.”
[15]
Much the same considerations apply in this case. The evidence in
Roelofse’s affidavit was crucial – the Commissioner
says
so. In those circumstances, I agree with Mr
Cassells
that the
Commissioner should either have admitted the affidavit or stood the
matter down in order for Roelofse to be called –
more so where
neither of the parties was legally represented.
[16]
Following the precedent in
Matsekoleng
, the failure by the
Commissioner to apply his mind properly to the issue of the
admissibility of Roelofse’s affidavit and
his failure to inform
the company of the consequences of failing to call Roelofse as a
witness, is a reviewable irregularity.
Conclusion
[17]
Given my view that this was a reviewable irregularity, I need not
deal with the other grounds of review raised by Mr
Cassells
.
But this court faces the same problem as the arbitrator did. The
merits of the unfair Labour practice dispute cannot be properly
adjudicated without the benefit of Roelofse’s evidence. For
that reason the dispute must, regrettably, be remitted to the
CCMA.
[18]
Even though
the applicant was successful, this is not a case where costs should
follow the result, given the requirement of fairness.
[3]
The dispute must be remitted. Another arbitrator may still come to
the same conclusion.
Order
[19]
I therefore make the following order:
19.1
The arbitration award by the fourth respondent, Commissioner Anthony
Verhoog, under CCMA case reference number
WECT 325-16 of 21 April
2016 is reviewed and set aside.
19.2
The unfair labour practice dispute referred by the first respondent,
Adam Klaus Swanepoel, is remitted to the CCMA
for a fresh arbitration
before a different commissioner.
19.3
There is no order as to costs.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Glen
Cassells of Maserumule Inc.
FIRST
and SECOND
RESPONDENTS:
Michael
Garces
Instructed
by Ward, Ward & Pienaar.
[1]
[2013]
2 BLLR 130 (LAC).
[2]
At
paras 41-43.
[3]
LRA
s 162.