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[2018] ZALCJHB 90
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Witbooi v Commission for Conciliation, Mediation and Arbitration and Others (JR2400/13) [2018] ZALCJHB 90; [2018] 7 BLLR 730 (LC); (2018) 39 ILJ 1852 (LC) (23 February 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no:
JR2400/13
In
the matter between:
LUCKY
WITBOOI
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDITIATION
AND
ARBITRATION
First
Respondent
BRYAN
PIETERSEN
N.O
Second Respondent
SISHEN
IRON ORE MINE (PTY) LTD (KUMBA)
Third Respondent
Heard
:
21 February 2018
Delivered
:
23 February 2018
Summary:
An opposed review application. The applicant contends that the
second respondent was duty bound to assist the applicant during
arbitration-the
helping hand principle
. Further
the applicant contends that the award is not one that a reasonable
commissioner can issue. The
principle of helping hand
cannot and should not be encouraged in instances where a
commissioner would be assisting a party to advance a case to be
impartially
judged by him or her. A commissioner should not be seen
to be actively assisting another party in the proceedings. Held (1)
the
review application is dismissed. (2) There is no order as to
costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is an opposed application to review and set aside an arbitration
award issued by the second respondent on 31 October 2013
in terms of
which it was found that the dismissal of the applicant due to
incapacity was substantively and procedurally fair.
Background
facts
[2]
The applicant was employed as a Haul Truck
Operator. He was diagnosed with Type 1
Diabetes
Mellitus
. As a consequence of this
ailment he was no longer meeting the profile of the position he held.
Attempts were made to accommodate
him elsewhere but all in vain.
Having failed to accommodate him, the respondent dismissed him for
incapacity. The applicant was
aggrieved thereby and referred a
dispute of alleged unfair dismissal. The second respondent was
appointed to resolve the dispute
through arbitration. He found that
the respondent did not dismiss the applicant unfairly. The applicant
was yet again aggrieved
and he approached this court for review.
Grounds
of Review
[3]
Although the founding affidavit raises a number of
complaints, it is apparent that the applicant complains that the
second respondent
did not extend a helping hand by getting Dr Minuer
to testify. Also that the second respondent attached little or no
weight to
the report of Dr Minuer. Lastly that the award does not
meet the reasonableness test.
Evaluation
[4]
The test for
review does not require repetition at every turn. It is trite that
only decisions that a reasonable commissioner cannot
make are
reviewable. In terms of the well-known authority of
Sidumo
and
Another v Rustenburg Platinum Mines Ltd and Others
[1]
, an irregularity prevents a fair trial of issues. So for the review
court to assess the ground that the second respondent ought
to have
assisted the applicant regard must be had to what happened during the
arbitration hearing and assess the conduct of the
second respondent
at that time to determine the alleged irregularity.
[5]
The transcript of the proceedings reveals the
following:
COMMISSIONER
:
You’ve handed up a medical document here a Dr Minuer. Will you
be subpoenaing or calling him to
testify?
MR
LEKWELE
:
Mr Commissioner, we will be directed by the witness that the company
will be calling whether to subpoena the Doctor but we
don’t
say we wouldn’t
.
Let’s just put it we will be dictated by, or influenced by the
witnesses of the company. [My own underlining and emphasis]
[6]
From the above it is patently clear that Mr
Lekwele knew what to do and when to do it. It is clear from the onset
that Mr Lekwele
assured the second respondent that the Doctor will be
subpoenaed. Therefore, it cannot be expected of the second respondent
to
later on advise the applicant to call the Doctor. Mr Dlamini for
the applicant referred to a portion in the record where the second
respondent stated the following:
“…
I
would like and I am placing this on record, that this specific
doctor, Dr Mosidi, be called to come and give evidence in these
proceedings.
[7]
In his submission, the second respondent
should have said the same thing about Dr Minuer. Since he did not do
so, he committed an
irregularity. I do not agree. Properly
considered, the second respondent mentioned that after the objection
of Mr Lekwele, who
complained about being able to cross-examine Ms
Moodley, who was the author of the document she was reading.
[8]
In the light
of the above, I do not believe that the
helping
hand principle
was required in this case. I must add that this so-called
helping
hand principle
was considered in two of the cases of this Court
[2]
,
in a different and distinguishable set of facts. Notably since then
this Court
[3]
and the Labour Appeal Court (LAC)
[4]
approached this principle with a measure of caution. To my mind
regard being had to the test in
Sidumo
[5]
,
that the grounds in section 145 of the LRA are suffused in the ground
of reasonableness and the interpretation of the test in
South
Africa
(Pty)
Ltd (Kloof Gold Mine)
v
.
CCMA
and
Others
[6]
and
many other LAC judgments, the principle if it was ever acceptable,
ought to be jettisoned. It is not consistent with the new
test of
review. If a commissioner fails to raise a helping hand and yet
arrives at a reasonable conclusion, it matters not.
[9]
Of course another concern which was raised by the
LAC is the difficulty to draw a distinction between a legitimate
intervention
and assisting to advance another party’s case.
[10]
In the circumstances of this case if such a duty
exists, I do not believe that there is any irregularity committed by
the second
respondent which renders her award reviewable.
Accordingly, this ground is bound to fail.
[11]
Regarding the little weight argument, the record
reflects that the representative of the applicant was warned of this
possibility.
The transcript reflects thus:
COMMISSIONER
:
It’s fine, I hear what you are saying. But I will now-if I
accept this document, the weight I attach
will have to be minimal
based on the fact that there won’t be any oral evidence on this
document as to the author not being
here. But I will attach a certain
weight to it okay.
[12]
This was raised at the time Mr Lekwele was
introducing another document from Dr Minuer. Before then the second
respondent asked
a pertinent question in the following manner:
COMMISSIONER
:
Is Dr Minuer going to come and testify?
MR
LEKWENE
:
No Mr Commissioner
[13]
Indeed in law documentary evidence remains
inadmissible hearsay evidence. To the extent that the second
respondent did not attach
weight on the reports by Dr Minuer, he was
entitled to do so and he committed no irregularity.
[14]
The last ground relates to the reasonableness of
the award. Mr Dlamini submitted that the fact that the applicant was
still able
to drive, a reasonable commissioner would have found that
there is no incapacity and therefore no fair reason to terminate.
This
submission is more an appeal submission than a review one. I do
not agree with this submission. I am unable to fault the following
finding of the second respondent:
25…It
is important to note that the employee was incapable of performing
his duties as a Haul Truck Operator due to his medical
condition and
also as a result of the regulations of the Department of Mineral
Resources.
[15]
The evidence revealed that the applicant was moved
to other sections as a result of his medical conditions. Being
incapable to perform
ones duties is a recognizable ground to
terminate employment. The reasonableness test ground must fail too.
[16]
In summary, the second respondent did not commit a
reviewable irregularity by not extending the helping hand. Also the
award falls
within the bounds of reasonableness. Accordingly, the
review application is bound to fail.
[17]
In the results, I make the following order:
Order
1.
The application for review is dismissed.
2.
There is no order as to costs.
_______________________
GN
Moshoana
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant:
Mr B Dlamini (Union
Official)
Instructed
by:
NUM.
For
the Respondents: Mr F
Malan
Instructed
by:
ENS Inc, Sandton.
[1]
[2007] BLLR
1097 (CC)
[2]
Dimbaza Foundaries Ltd v
CCMA and others
[1999] 20
ILJ 1763 (LC)
and Char
Technology (Pty) Ltd v Mnisi and others
[2000]
7 BLLR 778 (LC).
[3]
Kalik v Truworths
[2008]
1 BLLR 45
(LC
) and Anglo
Operations v CCMA
[2014] 7
BLLR 719 (LC).
[4]
Bafokeng Rasimone Platinum
Mine CCMA and others
[2006] 27 ILJ 1499 (LAC) at para10 and 17.
[5]
Supra.
[6]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC).