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[2018] ZALCJHB 81
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Limpopo Provincial Treasury v General Public Sectoral Bargaining Council and Others (JR1355/14) [2018] ZALCJHB 81 (2 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No. JR1355/14
In
the matter between:
LIMPOPO
PROVINCIAL
TREASURY
Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
First Respondent
COMMISSIONER
M.E PHOOKO
N.O
Second Respondent
MSINDWANE
ANDILE
Third Respondent
Heard:
13 July 2017
Decided:
02 March 2018
JUDGMENT
JULY.
AJ
Introduction
[1]
This
is an application to have the undated award, made by the second
respondent under the auspices of the first respondent, reviewed
and
set aside. This application is brought in terms of sections 145
and 158 of the Labour Relations Act
[1]
("
LRA
").
[2]
The third respondent was employed as a
senior manager at the applicant until his dismissal, which according
to the referral form
happened on 15 August 2011.
[3]
The third respondent was dismissed for
misconduct related to sexual harassment. His dismissal was
preceded by a disciplinary
hearing wherein he was found guilty.
He referred an unfair dismissal dispute to the first respondent.
The matter was
set down for conciliation on 6 September 2011.
The dispute remained unresolved as at 11 November 2011.
Subsequently,
on 12 October 2011 the third respondent
referred the dispute to the first respondent requesting that the
dispute be arbitrated.
Arbitration
hearing
[4]
The arbitration was first set down for
hearing on 30 November 2011. There is no explanation
afforded in both the
affidavits and heads of argument filed by the
parties as to what transpired on this day. Instead, in the founding
affidavit made
on behalf of the applicant, in particular paragraph
6.4 thereof, it is stated that the arbitration hearing commenced on
30 November 2012.
This is admitted in paragraph 12 of the
third respondent's
answering affidavit. Surprisingly,
in the applicant's heads of argument, the date of the commencement of
the arbitration is said
to be 30 November 2013. This is
despite the fact that there were notices of set down issued prior to
30 November 2013.
[5]
According to the transcript filed with this
Court, the arbitration hearing commenced on 3 August 2012
and that is when
the examination-in-chief of the complainant began.
As already stated there were a number of notices of set down that
were
issued in 2013, but it does not appear that there was ever a
sitting in 2013. I mention this to demonstrate the issues I
encountered
while perusing the papers before me. I had to take it
upon myself to make sense of the papers. The parties failed to pay
attention
to detail. The pleadings contain various contradictions and
inaccuracies.
[6]
At the arbitration sitting of
3 August 2012, the applicant presented its case through the
evidence of Mathabela, the complainant.
The examination-in-chief of
the complainant was completed on 3 August 2012, no cross-examination
took place and the matter was
postponed. On 1 February 2014,
a compelling argument was made on behalf of the applicant for
postponement citing
that the witness that was due to be
cross-examined was indisposed. It was further argued that if the
second respondent was not
inclined to grant postponement, the record
of the disciplinary hearing be accepted into evidence. Both
applications were dismissed
and the matter was set-down for hearing
on 1 March 2014. The rulings in relation to the two
applications were not filed
with this Court. Therefore, I have not
had the benefit of understanding the second respondent's reasons for
refusing the applications.
[7]
At the commencement of the hearing, on
1
March 2014,
Mr. Mashego,
the legal representative of the applicant in the arbitration, was not
aware of the second respondent's ruling
dismissing the application
for postponement and the acceptance of the record of the disciplinary
hearing into evidence. He was
provided with the ruling at the hearing
to peruse. Having read the ruling, he advised the second respondent
that, in light of the
finding disallowing the record of the
disciplinary hearing, he was left with no option but to seek a
further postponement, because
the condition of the witness had
worsened and as such she was unable to testify
.
A formal application was made and the
complainant's elder sister gave evidence in this regard
.
That notwithstanding, the second
respondent refused the application and on page 77 of the
transcript he made the following
ruling:
"This is an application for
postponement brought by the respondent. I must say that this,
the grounds for postponement
cannot be, are not
indistinct
grounds for an application for postponement, however, I had already
made a ruling in the past to say that there will no longer
be a
postponement based on the fact that the complaint is indisposed due
to ill health. As a result because the reasons advanced
for
postponement are the same as the ones I have ruled against, so I must
abide by the rule that, the ruling that I made myself.
So the
application for postponement is refused." [sic]
[8]
The second respondent's ruling is
irrational because the reasons for refusing the application for
postponement do not relate to
what was presented before him. Instead,
the reasons relate to his earlier decision to refuse postponement and
the fact that he
considered himself bound by that decision. It is
clear that the second respondent failed to apply his mind to the
facts before
him, and I find this to be irrational.
[9]
Having refused to grant the postponement
and the applicant having no further witnesses to call, the applicant
was requested to close
its case, a request which the applicant
refused. A debate ensued as to what should be done in the
circumstances. The
second respondent is on record having said:
"Like I said before that I have
never came across this kind of scenario, I will need to go and
investigate by way of research
and even check with the costs for the
applicant where possible how the situation can be dealt with.
In other words what I
will do depending on my findings of the
(inaudible) and consultation with judges and fellow commissioners,
you will either get
a ruling or an award.” [sic]
[10]
What is evident from the above, is that the
second respondent postponed the matter in order to apply his mind as
to whether he could
compel the applicant to close its case, and would
accordingly make a ruling or give an award in regard thereto.
[11]
The second respondent made an award which
makes no reference to the issue he undertook to research. The only
evidence before him
at the time of the award was that of the
applicant. At the very least, the applicant expected a ruling based
on the issue that
the second respondent undertook to research (i.e.
compelling the applicant to close its case). However, granting an
award on the
basis of issues that were not properly before him, was
irregular. For the sake of completeness, the arbitration award at
paragraphs
14 to 18 reads as follows
Sections
145 and 158(g)
[12]
Since the arbitration cannot be appealed,
this Court has powers to review awards in terms of section 145 and is
confined to those
instances where "
any
party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission
".
[13]
Section 158(1)(g) on the other had enjoins
this court to review an award based on "
the
performance or purported performance of any function provided for in
this Act on any grounds that are permissible in law
".
[14]
The
Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
)
held that
the powers conferred by section 158 are wide enough to include
arbitral awards made by commissioners. That, notwithstanding,
the Constitutional Court held further that:
"The general powers of review of
the Labour Court under section 158(1)(g) are, therefore, subject to
provisions of section
145(2) which prescribe grounds upon which
arbitral awards of CCMA Commissioners may be reviewed. These grounds
are misconduct by
the Commissioner in relation to his or her duties;
gross irregularity in the conduct of the proceedings, where the
Commissioner
exceeds his or her powers, or where the award was
improperly obtained. These are the only grounds upon which
arbitral awards
of the CCMA Commissioners may be reviewed by the
Labour Court under section 145(2) of the LRA. It follows,
therefore, that
a litigant who wishes to challenge an arbitral award
under section 145(2) must found his or cause of action on one or more
of these
grounds of review."
[15]
This
is a review of an award made at the bargaining council and in light
of the decision of the Labour Appeal Court in
Reddy
v KZN Department of Education and Culture and Others
[3]
.
[16]
The grounds for review are stipulated in
paragraph 8 of the founding affidavit submitted on behalf of the
applicant. These grounds
are:
"8.1
The Second Respondent committed an irregularity and misconducted
himself and/or exceeded
his powers in arriving at the finding that
dismissal of the Third Respondent was substantively unfair and that
the Applicant was
ordered to pay the Third Respondent an equivalent
of 12 months’ salary, inclusive of bonuses and incentives;
8.2
The Second Respondent committed an irregularity and misconducted
himself and/or exceeded
his powers by admitting inadmissible evidence
and rejecting admissible evidence presented before him in arriving at
the finding
or conclusion that the dismissal of the Third Respondent
was substantively unfair and that the Applicant must reinstate the
Third
Respondent;
8.3
The Second Respondent further committed an irregularity and thus
misconducted himself by
not having regard to decided cases of the
above Honourable Court in making the order that the dismissal of the
Third Respondent
was substantively unfair and that the Applicant was
ordered to pay the Third Respondent an equivalent 12 months’
salary,
inclusive of bonuses and incentives;
8.4
The Second Respondent committed an irregularity and misconducted
himself and/or exceeded
his powers by failing to apply his mind or
appreciate the legal principle applicable on the facts that were
before him; in particular
the best evidence rule;
8.5
The Second Respondent committed an irregularity and misconducted
himself and/or exceeded
his powers by failing to apply his mind or
appreciate the fact that the only evidence before him was that of the
Applicant's witness
as the third Respondent did not adduce any
evidence to the contrary.
8.6
The Second Respondent committed an irregularity and misconducted
himself and/or exceeded
his powers by misconstruing the provisions of
the Labour Relations Act in arriving at the finding or conclusion
that the Applicant
must reinstate the Third Respondent; and
8.7
The Second Respondent further committed an irregularity and thus
misconducted himself by
making a decision which no reasonable
decision maker would have made under the circumstances of the present
case."
Irregular
conduct by the second respondent
[17]
The third respondent was dismissed because
he was found guilty of sexual harassment. The dismissal was preceded
by a disciplinary
hearing. The disciplinary hearing was chaired by
Mr Lebea from Lebea & Associates, an attorney by profession.
The applicant
and the third respondent were both legally represented
as can be seen from paragraph 3.3 of the ruling on sanction.
[18]
As already indicated, an application for
postponement was made on 1 February 2014. The ground for
such postponement was
that the complainant, who was a crucial witness
to the applicant's case, was ill. This is the same person who was the
victim of
sexual harassment. She was so ill that she was not in a
position to be cross-examined on evidence that she had tendered.
Although
the findings are not in the court file, it is contained in
the transcript of the arbitration that such application was refused.
[19]
I have not had sight of the second
respondent's findings and therefore do not have the benefit of his
reasons for refusing postponement.
[20]
Having refused to admit the disciplinary
hearing record into evidence, on 1 March 2014, another
application for postponement
was refused.
[21]
In refusing the 1 March 2014
application, the second respondent considered himself bound by his
February 2014 finding
refusing postponement. This decision
was taken by the second respondent in the face of uncontradicted
evidence that a victim
of the sexual harassment was terminally ill. I
find the second respondent to have been insensitive and mechanical in
his approach.
The commissioner's function is to be fair to both
parties. Therefore, how can he arrive at a fair finding without
providing a victim
an opportunity to be heard? There was no
evidence contradicting the illness of the complainant.
[22]
When the second respondent refused to grant
postponement, how did he expect the complainant to attend the
arbitration for cross-examination?
[23]
Having refused to grant the applicant
postponement, the applicant instructed its attorneys of record not to
close its case. This
created a dilemma.
[24]
The hearing was adjourned on the basis that
the second respondent was going to conduct research on the issue and
depending on his
findings and consultation with judges and fellow
Commissioners, he would make a ruling or an award.
[25]
The second respondent made no finding as to
the next step, instead, he granted an award. The award itself does
not disclose a finding
as to the issue of applicant closing its case.
The award is written in a manner that creates the impression that
there was common
understanding on the issue regarding the applicant
closing its case. He therefore, failed to make a finding on the
issue. In addition,
the second respondent disregarded the evidence
tendered at the arbitration on 3 August 2012 on the basis
that cross examination
of the witness had not taken place. This
failure by the Commissioner to consider the evidence was a further
material and fatal
misdirection.
Substantive
fairness
[26]
In my view, the decision to refuse to grant
the application for postponement on 1 March 2014 was not
exercised judicially.
The fact that the complainant was terminally
ill, was never disputed. The Commissioner considered himself bound by
his earlier
decision that no further postponement would be granted.
He refused postponement even after the complainant's elder sister had
testified
as to the complainant's condition.
Refusal
to admit the transcript of the disciplinary hearing
[27]
The
issue of refusing to admit the transcript of the disciplinary hearing
as evidence, on the basis that the arbitration is a hearing
de
novo
is an error of law. In the matter of
Rand
Water v Legodi NO and Others
[4]
the court
held:
"[18] In my
view, the fact that arbitration proceedings are regarded as hearings
de novo does not mean that
the legislation permitting hearsay in
certain circumstances would not apply to arbitration hearings, which
is the reasoning the
arbitrator seemed to have followed. The
decision– maker or trier of fact, faced with the same
situation as the arbitrator
was faced with in this case, had a
discretion to permit hearsay evidence or to exclude it. To determine
whether he exercised that
discretion judiciously, or in a manner
resulting in one party not having a fair trial, necessitates some
scrutiny of that hearsay
evidence. In this case, it was the
evidence given at the disciplinary hearing, in other words, the
transcript.
[19] …
[20]
…
[21] …
[22] The
arbitrator had to decide whether that hearsay evidence was
permissible or not. In terms
of s 3(1) of the Amendment Act,
hearsay evidence may be permitted in certain circumstances such as
when the relevant witness is
not available and it would be in the
interest of justice to do so. Once the decision is made to
admit the evidence, then
the weight to be given to the particular
testimony depends on the probabilities and credibility of the
witnesses. No arbitrator
or judge should readily admit hearsay
evidence when a witness has disappeared. All the facts have to be
assessed, in addition to
the purpose for which the evidence is to be
led. The arbitrator did not make such an assessment."
[28]
In
the matter of
Matsokoleng
v Shoprite Checkers (Pty) Ltd
[5]
the court
held that:
"Section 3(1)(c) of the 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 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."
[29]
From a reading of the award it is evident
that the commissioner rejected the evidence tendered at the
arbitration and the record
of the disciplinary hearing and failed to
consider the principles of hearsay evidence. This constitutes gross
irregularity on his
part.
[30]
On this basis alone, the arbitration award
made by the second respondent should be set aside.
[31]
I therefore make the following order:
Order
1.
The undated arbitration award
(GPBC3741/2011), made by the second respondent under the auspices of
the first respondent, is reviewed
and set aside.
2.
The matter is referred back to the first
respondent to be presided over by a different commissioner.
3.
That the record of the disciplinary hearing
be considered as evidence in the event that the witness is still
indisposed.
4.
There is no order as to costs.
__________________
S.
July
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant
Advocate S. Mphahlele
Instructed
by
State
Attorney
For
the Third Respondent Mr C. Mogane
Instructed
by
Mohlaba & Moshoana Attorneys
[1]
Act 66 of
1995 as amended.
[2]
[2007] 12
BLLR 1097 (CC).
[3]
[2003]
7 BLLR 661(LAC).
[4]
(2006) 27
ILJ 1933 (LC).
[5]
[2013] 2
BLLR 130
(LAC).