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[2018] ZALCJHB 250
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Nchaupa v Tshayana NO and Others (JR1269/2014) [2018] ZALCJHB 250 (12 July 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR1269/2014
In the
matter between:
MOSATIWA
PATRICK NCHAUPA
Applicant
and
COMMISSIONER THANDIWE
TSHAYANA
NO
First Respondent
DISPUTE RESOLUTION CENTRE
Second Respondent
TRENTYRE
(PTY) LTD
Third Respondent
Heard:
22 February 2017
Delivered:
12 Jul 2018
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
and background:
[1]
The applicant seeks an order
reviewing and setting aside the arbitration award issued by the first
respondent (Commissioner) dated
8 May 2014. The
Commissioner found that the dismissal of the applicant by the third
respondent (Employer) was substantively
and procedurally fair. The
applicant further seeks an order that the award be replaced with one
to the effect that his dismissal
was both substantively and
procedurally unfair. The review application is opposed.
[2]
The employer dismissed the
applicant, a general worker, on 23 May 2013 on allegations
of desertion. Aggrieved by the dismissal,
the applicant referred a
dispute to the second respondent (DRC) and when conciliation failed,
the dispute came before the Commissioner
where the following evidence
was led;
2.1
The employer operates a factory
and has a staff complement of 52 employees. In the morning of
2 May 2013 at about 09h00,
the factory experienced a power
outage, which it was estimated would take about two days to restore.
All employees were then informed
that they could knock off, and to
further leave their contact details with the employer’s Robert
Radebe in the event that
power was restored sooner. They were further
advised that in the event that they were not contacted, they should
all report for
duty on the following Monday (6 May 2013).
Power to the factory was restored on the Saturday of 4 May 2013.
2.2
On 6 May 2013, all
the employees returned to work except the applicant. The employer’s
witness, and its Regional
HR Manager, Werner Pieterse’s
testimony was that the applicant telephonically contacted him on
10 May 2013 and
complained about not being paid his salary.
Upon being asked the reason he had not been paid, the applicant’s
response was
that he had not reported for duty due to power failure
at the factory.
2.3
Pieterse then informed him that
power had been restored since 4 May 2013 and that he should
contact his supervisor and
report for duty on 13 May 2013,
failing which he would face disciplinary action. The applicant
arrived at the factory
on the day in question and contacted Pieterse,
informing that he had been dismissed. Pieterse however told him that
he could not
have been dismissed without a hearing and he should go
back to work. Pieterse never heard from the applicant thereafter.
2.4
A supervisor, Jackson Moletsane
testified that he returned to work on 6 May 2013, and only
saw the applicant on 13 May 2013,
and he was not in
his work clothes. The applicant had requested a letter from the
employer to take to his creditors, which
confirmed that he had not
worked in the previous week, and had refused to resume his duties as
instructed. Moletsane in the presence
of the factory manager, Patrick
Mashego and another employee, Robert Radebe, told the applicant
that the company would dismiss
him if he failed to return to his
duties, and it is at that stage that the applicant had requested a
letter of dismissal. Moletsane
again told him to go to work but he
still refused to change into his work clothes and left, saying that
he had been dismissed.
2.5
The next time Moletsane saw the
applicant was at a disciplinary hearing on 23 May 2013. He
was afforded an opportunity
to find a representative and when he came
back to the hearing, he said that he could not find anyone to
represent him and had told
the chairperson of the enquiry, Mashego to
proceed nonetheless. Moletsane’s further testimony was that the
applicant had
no permission to be off duty from 6 May 2013,
and attempts to contact him between 13 and 23 May 2013 were
unsuccessful.
2.6
The evidence of the employer’s
factory manager, Patrick Mashego was to confirm that indeed the
applicant had not returned
to work on 6 May 2013. Mashego
only saw him on 13 May 2013, when he directed him to speak
to his supervisor.
2.7
Mashego next saw the applicant
on 23 May 2013 at about 13h00. The applicant requested a
dismissal letter from him, alleging
that he was dismissed by Jackson
Moletsane, the supervisor. Mashego told him that he was not
dismissed, and further told him that
he was contacted via telegram
and ‘SMS’ to report for duty. The applicant had confirmed
having received the ‘SMS’,
but still insisted on being
provided with his dismissal letter. Mashego then said to the
applicant that a proper disciplinary hearing
can be held, and
afforded the applicant an opportunity to get a representative. He
nonetheless insisted that the hearing should
proceed as he wanted his
dismissal letter. Mashego then proceeded with a hearing. It was
however apparent to Mashego that the applicant
was not interested in
continuing his employment with the employer, flowing from his refusal
to resume duties earlier as instructed
by his supervisor, and also
from his conduct of removing his personal belongings from his locker.
2.8
According to Mashego, the
applicant further failed to show remorse or intention to resume
duties, as he simply wanted his dismissal
letter. When he came to the
premises on 13 May 2013 it was only to get a letter for his
creditors and had refused to
report for duty. Between
6 and 13 May 2013 he had not contacted the
employer and thereafter, he only came back
on 23 May 2013
to demand a dismissal letter.
2.9
Mashego under cross-examination
had denied that the applicant had left his contact number on
2 May 2013, and further denied
that he had arrived at 06h40
on 13 May 2013 to resume duties. He further denied that the
applicant was replaced by another
employee as of 23 May 2013,
and stated that he was only replaced on 20 June 2013 subsequent to
his dismissal.
2.10
The applicant’s case
before the Commissioner was that he had not been contacted by the
employer after 2 May 2013,
and he had instead, contacted
Pieterse on 10 May 2013, and informed him that he was
waiting for a call as to when to
come back to work. Pieterse had
promised to come back to him but never did. Later during the course
of that day he had again called
Pieterse, who had not answered his
call.
2.11
On 13 May 2013 he had
reported for duty at 06h40. He called Mashego who informed him that
he was off duty for more than
five days and should have brought a
medical certificate. He informed him that he was not sick and had
waited for a call since 2 May 2013.
Mashego nonetheless
told him that he had absconded and was therefore dismissed, and
further that he should leave the premises.
2.12
Having left, he then called the
employer’s Nicky van der Bergh of HR and informed her that he
was dismissed by Patrick. Van
der Bergh undertook to arrange for a
hearing. On 23 May 2013 he went to the employer’s
premises after having received
a call the previous day from a
colleague whose identity he refused to disclose as it might
jeopardise his employment. The colleague
had informed him that
Mashego wanted to see him. When he did, Mashego called him to his
office and also called Jackson Moletsane
as a witness. He was given
documents to sign, and although he did not understand the contents of
the documents, he had signed some
and not all of them upon realising
that the documents confirmed his dismissal. According to the
applicant, the meeting with Mashego
was not a hearing as he was
simply asked to sign documents to confirm that he was dismissed,
which documents were pre-completed.
2.13
Under cross-examination, the
applicant denied that he had received any ‘SMS’ from the
employer during his absence, even
though he conceded that he had
received a call from his colleague on 22 May 2013 on the
same phone number. He further
denied that he came to the premises
simply to get a dismissal letter, as his intention was to first
ascertain from the manager
the reason he was not called after the
power was restored at the factory. He denied that he was afforded an
opportunity to get
a representative and insisted that no hearing was
held.
[3]
As already indicated, the
Commissioner having analysed the evidence came to a conclusion that
the applicant’s dismissal was
substantively and procedurally
fair.
The
grounds of review:
[4]
Central to the grounds of
review is that the Commissioner;
4.1
Conducted the arbitration
proceedings in a biased manner, treated the employer differently, and
failed to deal properly with objections
raised on behalf of the
applicant. In this regard, it was submitted that the
Commissioner shouted at the applicant; interrupted
him when he was
answering questions, and/or that he interrupted his attorney during
the cross-examination of the employer’s
witnesses; assisted the
employer’s case; and/or answered questions on behalf of
witnesses
[1]
.
It was submitted that the interruptions by the Commissioner and her
insistence that the applicant’s attorney should move
to other
questions deprived the applicant of the
audi
alterem partem
rule.
4.2
The Commissioner committed a
gross irregularity by refusing to grant the applicant a postponement
in circumstances where his attorney
was ill despite a formal request
and presentation of a copy of a medical certificate in that regard.
This had forced the applicant
to be represented by another attorney
who was not familiar with the matter. On the other hand, the
Commissioner had refused the
employer a postponement and had
proceeded in its absence on 7 October 2013, and
subsequently granted a rescission in
circumstances where the
employer’s explanation for not attending the proceedings was
inexcusable.
4.3
Failed to apply her mind to the
evidence and reached a decision that a reasonable decision maker
could not reach, as she failed
to consider all the relevant facts,
details and evidence pertaining to the matter. This was more
specifically in regard to in relation
to the discrepancy in the dates
reflected in the record of the disciplinary proceedings.
The
review test and evaluation:
[5]
The test on review in our law
is well established. It is whether the award of the Commissioner
falls within
a band of decisions which a reasonable decision-maker could come to
based on the available material
[2]
.
The principles reiterated in
Goldfield
s
[3]
are even more apposite in this case given its factual matrix. The
issue is whether the Commissioner considered the principal issue
before her; evaluated the facts presented at the hearing and came to
a conclusion which was reasonable to justify the decisions
she
arrived at. In this regard, the pertinent questions to be asked by
the review court are;
(i)
In terms of her duty to deal
with the matter with the minimum of legal formalities, did the
process that the Commissioner employ
give the parties a full
opportunity to have their say in respect of the dispute?
(ii)
Did the Commissioner identify
the dispute she was required to arbitrate?
(iii)
Did the arbitrator understand
the nature of the dispute she was required to arbitrate?
(iv)
Did she deal with the
substantial merits of the dispute? and
(v)
Is the Commissioner’s
decision one that another decision-maker could reasonably have
arrived at based on the evidence?
[6]
In this case, I did not
understand the applicant’s case to be that the Commissioner’s
award is flawed on account of
her failing to identify the principal
issues before her or failing to understand the nature of the dispute
required to be determined.
As can be gleaned from the grounds of
review, the Commissioner is taken to task for being biased, for
failing to afford the applicant
a say in respect of the dispute, and
further for failing to consider all the evidence presented before
her, and thus arrived at
an outcome that was not reasonable.
[7]
It is further submitted that
the Commissioner was biased, and did not treat the parties equally,
especially when it came to her
alleged interruptions of the
cross-examination of the employer’s witnesses or the
presentation of the applicant’s evidence.
I find no merit in
this submission. It is a trite principle that commissioners
must
be afforded some degree of latitude in the manner in which they
conduct proceedings, and not all forms of intervention on their
part
necessarily amounts to bias.
[8]
In terms of
the provisions of
section
138 of the LRA, a Commissioner may conduct the arbitration
proceedings in a manner that she 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.
[9]
In
Impala
Platinum Ltd v Jansen
[4]
,
it was confirmed that
section 138 of the LRA gives the Commissioner a discretion as to the
form of the proceedings and the manner
in which the proceedings are
conducted. This implies that the role of the Commissioner may
be more investigative than adversarial,
and it is accepted that
commissioners have relative
carte
blanche
to conduct the
proceedings with the minimum of legal formalities in an inquisitorial
or investigative mode
[5]
.
[10]
The test for reasonable
apprehension of bias is therefore an objective one, which is whether
a reasonable, objective and informed
person would on the correct
facts reasonably apprehend that the Commissioner has not brought an
impartial mind to bear in the adjudication
of the dispute
[6]
. It
follows that once a conclusion is reached that the Commissioner had
not dealt with the dispute in an even-handed manner,
it cannot be
said that the parties were afforded an opportunity to have their say
in respect of their cases, and this would obviously
have a distorting
effect on any conclusions reached.
[11]
In this case, it is significant
to note that despite the dismissal being related to ordinary
misconduct and objections raised, the
Commissioner for reasons that
appear on record
[7]
,
allowed the applicant to be legally represented, whilst the employer
was represented by its HR Manager. This might not appear
significant
on face value, but it raises doubt about whether there is merit in
the contention that on the correct facts, there
was cause to
reasonably apprehend that the Commissioner had not brought an
impartial mind to bear in the adjudication of the dispute.
[12]
The applicant further relied on
the Commissioner’s intervention when he was under
cross-examination, and his legal representative
had objected to the
Commissioner’s conduct
[8]
.
This was in circumstances where a question was posed to the applicant
about the events of 13 May 2013 and the fact that
he was
not in his work clothes and thus could not have clocked in. When the
applicant answered, the Commissioner intervened, and
pointed out that
the answer in response to the question was in relation to the events
of 22 May 2013, and not of
13 May 2013. The
applicant’s legal representative objected, protesting that the
Commissioner was shouting at the
applicant, and it was for the
employer’s representative to raise the issue with the applicant
not the Commissioner. That
objection descended to a point where the
legal representative started to accuse the Commissioner of being
biased as she had intervened
in his cross-examination of the
employer’s witnesses and of the applicant, and had shouted at
the latter.
[13]
I can clearly not find any
merit in the contention that the Commissioner was biased by raising
with a witness that he was not answering
the question posed to him. A
glance of the record at the portions referred to indicates that the
legal representative was of the
view that the Commissioner should
remain uninvolved in the matter and not to raise her concerns where
questions posed were not
answered within the context in which they
were asked. If a witness does not answer the question posed for
whatever reason, it is
for the Commissioner to point that out, and to
afford the witness an opportunity to answer the question within the
context it was
asked, and before an adverse inference can be drawn
from a failure to answer questions. Commissioners being in charge of
the proceedings
cannot let witnesses ramble along with irrelevant
issues they were not asked about. The mere fact that objections or
concerns are
raised in the course of proceedings about the
Commissioner’s alleged impartiality, does not lead to an
inference of bias
on the part of the Commissioner.
[14]
Upon a reflection of the
transcribed record and exchanges between the Commissioner and the
applicant’s legal representative,
I am satisfied that the
Commissioner was within her rights to point out that the applicant
was not answering the question posed.
She might have raised it in a
tone unacceptable to the applicant’s representative, but it
cannot invariably be concluded
from that conduct that she had
displayed bias.
[15]
The record of proceedings as
indexed and paginated is not in sequential order of the proceedings
before the Commissioner. Be that
as it may, to the extent that one is
able to follow the sequence of proceedings by reading the record in a
manner that makes logic,
it does not indicate a Commissioner with a
pre-disposition in favour of one over the other. That complaint for
some reason only
came about after the applicant’s initial
representative was substituted. Before then, it does not appear that
the initial
legal representative had cause to complain about the
manner with which proceedings were conducted. At most, the record
indicates
an even handed approach by the Commissioner whose main
objective was to ascertain the facts as called upon her in terms of
the
provisions of section 138 of the LRA, and in circumstances where
for a variety of reasons, objections, interjections and concerns
about her conduct were raised, more specifically during the
cross-examination of the applicant. To the extent that there might
be
merit in the manner in which the Commissioner intervened, such
intervention as correctly pointed out on behalf of the employer
in
these proceedings cannot be regarded as so unreasonable as to render
the entire proceedings unfair.
[16]
A further concern raised
surrounding the Commissioner’s alleged bias pertained to her
refusal to grant the applicant a postponement
on the grounds that his
representative was indisposed, whilst the employer’s absence
from the proceedings was condoned subsequent
to a rescission
application, its initial request for a postponement having been
declined.
[17]
It is not clear from the record
as to how the Commissioner had dealt with the applicant’s
request for a postponement in the
light of his initial legal
representative being ill. Be that as it may, from what may be made of
the record, the legal representative
that took over the matter was
able to cross-examine the employer’s witnesses and to properly
present the applicant’s
case. Significantly however, the
initial default award in favour of the applicant was granted by
another Commissioner (Yusuf Nagdee),
whilst the rescission
application was granted by Commissioner van Aarde. As to how the
Commissioner in this case can be said to
have been biased when she
was not involved in either the granting of the default award or its
rescission is beyond comprehension.
Furthermore, and as also
correctly pointed out on behalf of the employer, I fail to appreciate
in what sense the failure to grant
the applicant a postponement
prejudiced him when he was ultimately legally represented for the
remainder of the proceedings, and
when it is not apparent from the
record whether the representative had difficulties in presenting his
case. The comparison sought
to be drawn by the applicant in regard to
the requests for a postponement by both parties at varying times of
the arbitration proceedings
is in my view a red herring.
[18]
In regards to the substantive
fairness of the dismissal, and to the extent that the applicant was
alleged to have deserted, it is
accepted that an employee is deemed
to have deserted when he/she has actually intimated expressly or by
implication that he or
she does not intend to return to
work. Desertion is a form of misconduct which entitles the
employer to take disciplinary
action against an employee, and is
further regarded as a repudiation or breach of contract by an
employee, which the employer is
entitled to accept or reject. The
acceptance of repudiation amounts to dismissal if the employee once
again tenders his/her services.
[9]
[19]
The issue is whether on the
facts, there was an unexplained prolonged absence from duty, and in
the same vein, whether an intention
not to return to work was
established
[10]
.
This Court in
Impact Ltd
(Mondi Packaging SA (Pty) Ltd) v National Bargaining Council for the
Wood and Paper Sector and Others
[11]
held that the real issue underlying substantive fairness in
dismissals related to desertion is whether the employee had advanced
satisfactory justification for his or her extended unauthorised
absence. Thus, the element of intention becomes a secondary issue.
[20]
Based on the evidence placed
before the Commissioner, it is my view that her conclusions that the
dismissal of the applicant was
substantively fair are unassailable in
that;
20.1
All employees upon being told
to go home on 2 May 2013 following the power outage at the
factory, were further informed
to leave their contact details, and to
return to work on 6 May 2013 if not contacted earlier. Only
the applicant failed
to report for duty on 6 May 2013. The
Commissioner’s rejection of the applicant’s version that
he did not
come back on 6 May 2013 as he was waiting for a
call is in my view a reasonable one, as all other employees had
returned
for duty on 6 May 2013 without being contacted.
20.2
The applicant was absent from
duty between 6 and 23 May 2013 without permission, and had
called Pieterse on 10 May 2013.
He was informed to contact
his supervisor or to report for duty on 13 May 2013 failing
which he would be disciplined.
When he arrived at the factory on
13 May 2013, it was not for the purposes of resuming his
duties, and there was no merit
in his contention that he merely
wanted to see the factory manager for an explanation as to the reason
he had not been called before
6 May 2013. It does not
appear from the record that his case was that other employees who did
not arrive on 6 May 2013
were called.
20.3
The applicant as the
Commissioner correctly found, only contacted the HR department on
10 May 2013 after realising that
he was not paid, and his
version that he did not contact his supervisors or anyone in the
company as he did not have their contact
details was also not
probable. Equally improbable was the applicant’s version that
he was dismissed by Mashego or Moletsane
on 13 May 2013. It
is apparent that he only come to the premises on that date to demand
a letter to take to his creditors,
having complained earlier on
10 May 2013 to Pieterse that he had not been paid. He had
no intention of resuming his duties
on that day despite being
instructed to do so. Even if he was under the impression that he
might have been dismissed, on his own
version, Van den Bergh informed
him that he was not dismissed, especially if a hearing had not been
held.
20.4
There was no reason upon the
evidence presented, to doubt the employer’s version that
attempts were made to contact the applicant
via telegram without
success, and further that an ‘SMS’ was sent to him to
advise him to return to work, failing which
he would face
disciplinary action. Nothing further could have been required of the
employer if it had made every effort to contact
the applicant at his
last known details available to it. On the applicant’s own
version, he only informed the employer of
his new contact details on
13 May 2013.
20.5
In the end, it was apparent
that the applicant had not reported for duty from 6 May 2013,
and his excuse was correctly
found to be improbable by the
Commissioner. He had thus not proffered a justification for his
unauthorised absence. It was common
cause that the applicant had
called Pieterse on 10 May 2013, and was informed to report
for duty. There is nonetheless
no explanation as to the reason he had
not made any such contact earlier.
20.6
When the applicant attended the
employer’s premises on 23 May 2013, by then the
employer was within its rights to
have concluded from his absence and
his conduct of 10 and 13 May 2013, that he had no intention
of resuming his tasks,
and to consequently subject him to discipline.
There can therefore be no merit in the contention that the mere fact
that he had
contacted the employer on 10 May 2013 and
arrived at the premises on 13 May 2013 evinced an intention
to return
to work.
[21]
In regards to procedural
fairness, the Commissioner accepted that the applicant was advised of
the disciplinary enquiry on 20 May 2013
by way of telegram,
and that was the day that he had also referred a dispute, alleging
that he was dismissed on 2 May 2013.
The applicant had
attended the disciplinary enquiry scheduled for 23 May 2013
despite his main intention being to receive
a letter of dismissal,
and wanted the hearing to proceed since he only wanted a dismissal
letter.
[22]
There was a dispute before the
Commissioner as to whether the disciplinary enquiry had taken place
or not. There is a record of
the disciplinary hearing held on
23 May 2013 at 13h30, which the applicant contended was
prepared long before the hearing,
and to which he was merely expected
to attach his signature.
[23]
Curious with the record
(checklist) as completed by the chairperson is that it indicates
incorrect dates. For example, page 28 (70)
of the record indicates
that proceedings were adjourned on 16 May 2013 for the
purposes of evaluating evidence, when
the enquiry took place on 23
May 2013.
[24]
Much was made during Mashego’s
testimony that the date was incorrectly inserted, and the
Commissioner appeared to have been
persuaded by the explanation that
this was purely a human error, as Mashego had used a template to
complete the checklist. It was
that point that the applicant had
complained that the Commissioner had unduly interrupted his
attorney’s cross-examination
of Mashego in that respect.
[25]
The Commissioner may have
interrupted his legal representative when cross-examining Mashego in
regards to discrepancies in the dates.
However, the record
[12]
reflects that upon that interruption, the attorney nonetheless
indicated to the witness and the Commissioner that he was no longer
asking questions along those lines and had proceeded to ask other
questions. Unlike other instances where the attorney had objected
to
interruptions by the Commissioner and complained of her being biased,
he had simply moved on to another question.
[26]
The issue however remains
whether the applicant was subjected to a proper and fair disciplinary
enquiry, bearing in mind the principles
set out in
Avril
Elizabeth Home for the Mentally Handicapped v CCMA and Others
[13]
.
Mashego’s evidence under cross-examination was that the
internal disciplinary record (
pro
forma
checklist) and
comments were completed in a typed form by him as the proceedings
progressed
[14]
.
Further under cross-examination, Mashego had indicated that he had
typed the comments in the afternoon
[15]
.
It is either he had typed the comments as the hearing progressed or
later in the day after the hearing as he alleged, taking into
account
that the hearing purportedly started at 13h30. On his version, the
hearing adjourned for 30 minutes before handing down
sanction, and it
is not clear from the record as to how long the proceedings took
place.
[27]
Based on the above
contradictions, and the applicant’s insistence that the hearing
never took place, and further bolstered
by Mashego’s own
evidence that he had to hurry up those proceedings as the applicant
simply wanted his dismissal letter,
it is doubted that a proper
disciplinary hearing took place. In circumstances where an employee
is accused of desertion, an employer
must not willy-nilly impose a
sanction of dismissal prior to affording that an employee the benefit
of a properly constituted enquiry
if he comes back, even if an
employee simply seeks confirmation of a dismissal. In this case,
despite the applicant having refused
to reveal the identity of the
colleague who had called him on 22 May 2013 to come and see Mashego
the following day, it can be
accepted that he could not have known
that he was coming in for a disciplinary enquiry, it having been
accepted that his correct
details were only known on 13 May 2013.
Further on Mashego’s own version, he had thought that the
applicant came in that
day in response to a telegram sent to him, and
a disciplinary enquiry had not been planned for that day, and was
only convened
when the applicant insisted on getting a dismissal
letter.
[28]
In line with the doubts
expressed above, and the apparent haste with which the purported
hearing was convened, it is my view that
the Commissioner’s
conclusions that there was indeed a proper disciplinary hearing
cannot be reasonable, and there was no
reason to reject the
applicant’s contentions that the checklist was prepared before
the enquiry, and that he was merely expected
to attach his signature.
[29]
There is a dispute as to
whether the applicant was afforded an opportunity to secure a
representative. Even if he had, and in the
light of the dispute
surrounding whether he knew that he was to be subjected to an
enquiry, there is no reason why Mashego had
acted hastily and
proceeded with the enquiry in the manner he did. It is irrelevant
that the applicant came in on 23 May 2013 to
simply request a
dismissal letter. The fact of the matter is that Mashego wanted to
convene a disciplinary hearing, and fairness
under the circumstances
would have dictated that the enquiry be postponed to a date arranged
with the applicant, and to enable
him to prepare for the hearing and
to secure the necessary representation. On the contrary, it appears
that the hearing and the
decision on sanction were predetermined,
thus making the dismissal procedurally unfair.
[30]
In the light of the conclusions
reached above, it follows that the finding of the Commissioner in
respect of procedural fairness
of the dismissal ought to be reviewed
and set aside. The Commissioner’s conclusions reached in
regards to substantive fairness
however in my view fall within a band
of reasonableness, and there is no reason to interfere with them.
[31]
No purpose would be served with
an order remitting this matter back to the DRC simply for the
purposes of a determination of procedural
fairness. The Court has had
regard to the records of the arbitration and internal disciplinary
proceedings, and is satisfied that
it is in a position to substitute
the award in regards to procedural fairness, and to determine just
and equitable compensation.
[32]
It has already been said
elsewhere in this judgment that a decision to dismiss should not be
taken lightly and without a proper
disciplinary process being
followed. In this case, it is apparent from the facts, the evidence
of Mashego, and the record of the
disciplinary proceedings that the
applicant was not afforded an opportunity of a fair hearing. Even if
that hearing could have
resulted in a dismissal, that however is not
the issue. What makes it worse in this case is that in order to cover
up for a lack
of a proper hearing, the employer for whatever reason,
relied on a record which clearly appears to have been prepared and
finalised
before the actual hearing. In my view, the gross nature of
the procedural unfairness dictates that the applicant be awarded
compensation
in the amount equal to four months’ salary, which
I deem to be just and equitable in the circumstances.
[33]
I have further had regard to
the issue of costs, and I am of the view that upon a consideration of
the requirements of law and fairness,
such an order is not warranted
given the conclusions reached in respect of the review application.
[34]
Accordingly, the following
order is made;
Order:
1.
The arbitration award issued by
the first respondent is reviewed and set aside only in respect of a
finding on procedural fairness.
2.
That part of the award is
substituted with an order that;
(a)
The dismissal of the applicant
(Mosatiwa Patrick Nchaupa) was procedurally unfair.
(b)
The third respondent (Employer)
is ordered to pay to the applicant, compensation equal to four
months’ salary calculated at
his rate of remuneration as at 23
May 2013.
3.
There is no order as to costs.
__________________
E. Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Advocate CJ Malan
Instructed
by:
Schindlers Attorneys (
Pro Bono)
For
the Third Respondent:
Advocate. L Malan
Instructed
by:
Bowman Gilfillan Inc
[1]
In reference to
page 164 and 148 of the transcribed record of proceedings
[2]
See
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ
943 (LAC) at para 14,where it was held that;
“
Sidumo
does
not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that evaluation,
a
determination of the reasonableness of the decision arrived at by
the arbitrator. The court in
Sidumo
was
at pains to state that arbitration awards made under the Labour
Relations Act
(LRA)
continue to be determined in terms of s145 of the LRA but that the
constitutional standard of reasonableness is “suffused”
in the application of s145 of the LRA. This implies that an
application for review sought on the grounds of misconduct,
gross
irregularity in the conduct of the arbitration proceedings,
and/or
excess of powers
will
not lead automatically to a setting aside of the award if any of the
above grounds are found to be present. In other words,
in a case
such as the present, where a gross irregularity in the proceedings
is alleged, the enquiry is not confined to whether
the arbitrator
misconceived the nature of the proceedings, but extends to whether
the result was unreasonable, or put another
way, whether the
decision that the arbitrator arrived at is one that falls in a band
of decisions to which a reasonable decision-maker
could come on the
available material.”
[3]
At para 16 and 20
[4]
(2017) ILJ 896 (LAC) at para
[5]
At para 22 to 25
[6]
See
S
v Department of Education, Western Cape
(CA10/15)
[2016]
ZALAC 24
(13 June 2016) at para 35; CUSA v Tao Ying Metal Industries
& others
[2009] 1 BLLR 1
(CC); See also CA
BTR
Industries SA (Pty) Ltd and Others v Metal and Allied Workers Union
and Another (
1992) 13 ILJ
80-3 (A) 817F-I, where it was held that:
‘
For
present purposes there may be adopted the definition of 'bias'
stated in the House of Lords by Lord Thankerton in Franklin
v
Minister of Town & Country Planning
[1947] UKHL 3
;
1948
AC 87
(HL) at 103. It was there said that the proper significance of
the word- 'is to denote a departure from the standard of even-handed
justice which the law requires from those who occupy judicial office
or those who are commonly regarded as holding a quasi-judicial
office'.
[7]
Page 184 - 185
[8]
Page 163 of
the transcribed record.
[9]
See
SACWU
v Dyasi
(2001) 7 BLLR 731
(LAC);
SABC v CCMA and
Others
(2001) 22 ILJ 487
(LC) at para 16;
Khulani
Fidelity Services Group v Commission for Conciliation Mediation and
Arbitration and Others
[2009] 7 BLLR 664 (LC).
[10]
See
SABC
v CCMA and Others
at para
13.
[11]
(2013) 34 ILJ 2266 (LC) at para 21
[12]
Pages 148 -149
of the transcribed record.
[13]
(2006) 27 ILJ 1644 (LC).
[14]
Cross-examination
line
7 Page 146
of the transcribed record.
[15]
Page 149 line 7 of
the transcribed record.