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[2018] ZALCPE 27
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Kleinbooi v Education Labour Relations Council (PR53/2014) [2018] ZALCPE 27 (18 October 2018)
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THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not reportable
Case no: PR 53 /2014
In
the matter between:
RUBIN
BOESAK
KLEINBOOI
Applicant
and
THE
EDUCATION LABOUR RELATIONS COUNCIL
First
Respondent
C
VAN DER BERG
N.O
Second
Respondent
THE
MEC: DEPARTMENT OF EDUCATION:
EASTERN
CAPE
Third
Respondent
Heard:
21 June 2018
Delivered:
18 October 2018
Summary: Review application.
Arbitrator did not properly assess the probabilities as presented in
the conflicting versions before
him. Arbitration award reviewed and
set aside.
JUDGMENT
PRINSLOO, J
Introduction
[1]
The Applicant seeks to review and set aside
an arbitration award issued on 11 February 2014 under case number
PSES250-13/13EC where
the Second Respondent (the arbitrator) found
the Applicant’s dismissal substantively and procedurally fair
and dismissed
his case.
The evidence adduced:
[2]
The issue to be decided by the arbitrator
was whether the Applicant’s dismissal was substantively fair as
procedural fairness
was not challenged.
[3]
In order to assess the arbitrator’s
findings in respect of substantive fairness and the award he issued,
it is necessary to
consider the reasons why the Applicant was
dismissed and the evidence adduced at the arbitration proceedings.
[4]
The Applicant was employed as a post level
one educator and he was dismissed after he was found guilty on the
following charges.
The charges are as they appeared in the charge
sheet.
‘
4.1
It Is alleged that you are guilty of misconduct as contemplated in
section 17 (1) (b) of the Employment of Educators Act 76
of 1998 (as
amended), which
inter
alia
reads as follows; "
An
educator must be dismissed if he or she is found guilty of –
seriously assaulting, with the intention to cause grievous
bodily
harm to, a learner, student or other employee
”
in that on
Thursday 13 October 2011, you assaulted A M by hitting her head into
the desk and also kicking her when she attempted
to run away.
4.2
It is alleged that you are guilty of misconduct as contemplated in
section 17 (1) (b) of the Employment of Educators Act 76
of 1998 (as
amended), which inter alia reads as follows; "
An
educator must be dismissed if he or she is found guilty of —
serious/y assaulting, with the intention to cause grievous
bodily
harm to, a learner
dent
or other employee
"
in that on Monday 24 October 2011, you assaulted Ab G by smacking,
kicking and hitting him on his body.
4.3
It is alleged that you are guilty of misconduct as contemplated in
section 18 (1) (r) which
inter
alia
reads, “
Misconduct
refers to a breakdown in the employment relationship and an educator
commits
misconduct
if he or she — assaults, or attempts to or threatens to
assault, another employee or another person
",
in that on the 14
th
of
February 2012 you smacked a parent Marietta D when she visited your
class.
4.4
It is alleged that you are guilty of misconduct as contemplated in
section 18 (1) (q) which
inter
alia
reads,
"Misconduct
refers to a breakdown in the employment relationship and an educator
commits misconduct if he or she — while
on
duty, conducts himself or herself in an improper, disgraceful or
unacceptab
l
e
manner,”
in
that on the 13
th
of
October, on the 24
th
of
October 2011 and the 14
th
of
February 2012 you behaved unbecomingly when you assaulted or
attempted to assault learners and a parent.
4.5
It is alleged that you are guilty of misconduct as contemplated in
section 18 (1) (q) which
inter
alia
reads,
"Misconduct
refers to a breakdown in the employment relationship and an educator
commits misconduct if he or she -
while
on duty, conducts himself or herself In an improper, disgraceful or
unacceptable manner,”
in
that on the 25
th
of
October 2011 you verbally abused a parent, Mr. G when he arrived at
the school wanting to report an assault incident between
his child
and you.
4.6
It is alleged that you are guilty of misconduct as contemplated in
section 18 (1) (q) which
inter
alia
reads,
“
Misconduct
refers to a breakdown in the employment relationship and an educator
commits misconduct if he or she — while on
duty, conducts
himself or herself in an improper, disgraceful or unacceptable
manner,”
in
that on the 25
th
of
October 2011 you stormed into another teacher’s class to
confront a learner, Ab G whose parent reported an incident of
assault
to the principal.’
[5]
It is evident that the charges related to
specific incidents involving learners A M (A), A G (Ab) and parents
Mr G and Ms M D (Ms
D). The Third Respondent (the employer) called
six witnesses during the arbitration proceedings.
[6]
The employer’s first witness, Mr
Booysen, is the principal of Clarkson Primary School where the
Applicant was employed. Mr
Booysen testified in respect of the
individual charges. Charge 1 related to the assault on A on 13
October 2011. Mr Booysen explained
that he became aware of the
incident after he received a letter from the parent and he called the
Applicant to enquire about the
reported incident. In the letter it
was reported that the Applicant became angry when A struggled to
pronounce a word and he hit
her head against the table and when she
tried to escape, he kicked her in the ribs. The parent reported that
A’s nose was
bleeding at school and during the night and that
she was taken to hospital the following day. The Applicant denied the
incident
and Mr Booysen prepared a report on the matter. He did not
witness the incident.
[7]
Charge 2 related to the assault of Ab on 24
October 2011. Mr Booysen did not witness the incident and it was
brought to his attention
by Mr G who wanted to lay a charge of
assault against the Applicant. Mr Booysen called Ab, a grade 4 pupil,
to his office and he
confirmed that he was hit by the Applicant.
After that Mr Booysen asked Mr G to leave and he called the Applicant
to hear his side
of the story. The Applicant denied everything and he
asked him to go back to his class. At that stage Mr G returned to the
school
and with reference to the Applicant said that he was the man
who had hit his child. Mr G had a walking stick in his hand. Things
got out of hand and the Applicant was very aggressive and asked Mr G
if he wanted to fight. The Applicant used abusive language
and picked
up stones. The Applicant moved closer to Mr G and Mr Booysen thought
that he was going to throw the stones he picked
up. Mr Booysen
requested to other educators, Mr Zana and Mr Mey to escort the
Applicant to his class. The Applicant did not go
to his class and
instead went to Ms Vutha’s classroom where Ab was, where after
he informed Mr Booysen that he was going
home.
[8]
Mr Booysen testified that he regarded the
Applicant’s behaviour towards Mr G as unprofessional.
[9]
Charge 3 related to the incident on 14
February 2012 when the Applicant smacked Ms D. Mr Booysen did not
witness this incident as
it was reported to him when Ms D came to his
class. She was crying and reported that the Applicant had smacked
her. He explained
that Ms D wanted her daughter, Lee-Ann, to fit a
school skirt and the Applicant refused to let Lee-Ann go and told her
mother that
she was disrupting his class, where after he smacked Ms
D. Ms D’s mother and another educator, Ms Wolfkop, had to
intervene.
The Applicant was called to the office to explain what
happened, but he never came. Mr Booysen obtained reports from all the
persons
who were present and who witnessed the incident.
[10]
Charge 4 relates to the breakdown in the
employment relationship due to the Applicant’s improper,
disgraceful and unacceptable
conduct while he was on duty with
reference to the incidents of 13 October 2011, 24 October 2011 and 14
February 2012 when he assaulted
or attempted to assault learners and
parents. Mr Booysen explained that the Applicant’s conduct was
unprofessional and unacceptable.
[11]
In cross-examination it was put to Mr
Booysen that it was reasonable of the Applicant to pick up stones to
defend himself against
an angry parent with a walking stick in his
hand. Mr Booysen disputed this and testified that the Applicant’s
conduct was
unprofessional and unreasonable in the context of the
workplace being a school. He explained that the Applicant should have
acted
professionally and should have left the scene and returned to
his classroom, as he was requested to do.
[12]
Ms Ntombekhaya Vutha, an educator who
teaches English at Clarkson Primary testified that she was busy with
the Grade 4 learners
when the Applicant came to her classroom in a
rush. He stood close to the door, visibly angry and speaking in a
loud voice and
he asked the learners whether he had hit Ab. The
learners responded ‘No’. The Applicant then confronted Ab
and asked
him “Did I hit you? Did I hit you?”. Ab was
sitting at his desk and he got scared and ran to the back of the
class
and he stood there and cried. Ab subsequently left the school.
[13]
Mr Booysen came to her classroom shortly
thereafter and asked her to write a report about what transpired.
[14]
Ms Vutha testified that she was A’s
class teacher and when the learners came to her classroom, they stood
in front of the
classroom waiting to come inside and she noticed that
A was crying. She asked A what was going on and why she was crying
and A
informed her that the Applicant has hit her. In
cross-examination Ms Vutha was asked if she noticed any marks on A’s
face
and whether her nose was bleeding and she responded that she did
not see marks or nose bleeding.
[15]
A testified about the incident and
explained that she could not answer the question the Applicant posed
to her and he knocked her
head and nose twice against the desk. She
cried and her nose was bleeding. A testified that she went to Ms
Vutha so that Ms Vutha
could wipe off the blood from her nose.
[16]
In cross-examination A explained that after
the incident, she waited until the break when she went straight to Ms
Vutha’s
classroom where she told Ms Vutha that she could not
answer a question and the Applicant grabbed her and knocked her head
against
the desk. A explained that she thereafter went to the
bathroom to wash. When confronted with the evidence presented by Ms
Vutha,
namely that A did not explain to her what had happened and
that she saw no blood or marks, A said that Ms Vutha made a mistake,
as she was not prepared to say that Ms Vutha would lie.
[17]
A conceded that the Applicant would
normally tap the learners on their shoulders or neck when they failed
to do their homework and
that he would ask why it was not done. It
was the first time ever he knocked her head against the desk. In
cross-examination she
testified that the Applicant also kicked her
after he knocked her head against the desk and she did not testify
about this fact
earlier as she was too scared. After the Applicant
kicked her, she remained seated in his classroom.
[18]
Ab testified in respect of the events that
transpired on 24 October 2011 and he explained that he was writing on
the black board
and the Applicant was standing close to the black
board and when he asked the Applicant to move out of the way, the
Applicant hit
his head against a desk and also kicked him. He did not
cry and did not leave the classroom. When he got home, he told his
father
that the Applicant had hit his head against the desk.
[19]
The next morning Ab’s father went to
the school. At the time Ab was in Ms Vutha’s classroom and the
Applicant entered
and took a broom stick to hit him and asked him why
he was lying. Ab testified that he ran to the back of the classroom
as he was
scared that the Applicant would hit him with the
broomstick. He testified that he knew his father was going to the
school and that
is why the Applicant was angry.
[20]
In cross-examination it was put to Ab that
Ms Vutha testified that the Applicant entered the classroom, that he
was very angry and
asked the learners whether he had hit Ab and all
but one said ‘No’. Ms Vutha never testified about the
broomstick and
the fact that the Applicant wanted to hit Ab with it.
He was asked to explain why Ms Vutha made no mention of the
broomstick and
the Applicant’s intention to hit him. Ab
explained that Ms Vutha is friends with the Applicant and she wants
him to go back
to the school and he testified that Ms Vutha and the
other learners who said that the Applicant did not hit him were all
lying.
[21]
Ab testified that the Applicant asked the
learners whether he had hit Ab and some said ‘No’ and
only one said ‘Yes’.
He explained that the learners said
‘no’ because they were scared of the Applicant and they
knew he would hit them
if they said ‘Yes’. Ab testified
that the Applicant had a stick and he had hit all the learners who
did not do their
homework.
[22]
In cross-examination Ab explained that the
Applicant left the black board very angry, came to him, grabbed him
and hit his head
against a chair, slapped him and kicked him all at
once.
[23]
Ms D testified about the incident of 14
February 2012 between herself and the Applicant and explained that
she went to school twice
to fetch her daughter, Lee-Anne and the
second time she went with her mother to the Applicant’s
classroom to ask for Lee-Anne.
On the second occasion she was
standing on the veranda and the Applicant came from the toilet and he
slapped her and said that
she was disturbing the school. After the
Applicant slapped her, she went to the Principal’s office. The
Principal proposed
that they sort the issue out and he called for the
Applicant to come to his office, but he never came.
[24]
In cross-examination Ms D testified that
the Applicant initially said to her that she could fetch Lee-Anne
during the second break
but she was not satisfied with that. She was
angry because the Applicant refused to release Lee-Anne and she went
back with her
mother to fetch Lee-Anne. Ms D conceded that they were
arguing outside the Applicant’s classroom and that her mother
grabbed
the Applicant on his chest and that she scolded the
Applicant. The Applicant slapped her and she went to the Principal’s
office.
[25]
The last witness called by the employer was
Mr G who explained that he went to the school to get clarity from the
Principal in respect
of an incident that involved his son, Ab. Mr
Booysen sent him away so that he could speak to the Applicant and
when he came back
from the shop he saw the Applicant outside the
office and he confronted him as the person who had hit his son. Mr G
was furious,
so was the Applicant who took off his shirt and Mr G
testified that the Applicant was ready to fight, he took off his
spectacles,
picked up stones and swore at him. The principal took Mr
G into his office and the Applicant went back to the classroom. Mr G
testified
that he was not prepared to sit around a table with the
Applicant to resolve the issue and he was not prepared to make peace
with
the Applicant.
[26]
In cross-examination, Mr G explained that
when Ab told him that the Applicant had beaten him, he was furious
and decided to go to
the school and he carried his walking stick with
him in case there would be a fight. He was very angry when he went to
the school
and the Principal saw that trouble was coming and he asked
Mr G if there was not somewhere else he could go whilst he was going
to discuss the matter with the Applicant.
[27]
In cross-examination, it was pointed out to
Mr G that his evidence differed in material respects from the
evidence of Mr Booysen,
for instance Mr Booysen did not testify that
the Applicant took off his shirt in an effort to attack or fight with
Mr G.
[28]
The Applicant testified in respect of all
the charges. In respect of charge 1 he denied that he had assaulted A
and he explained
that A’s homework was not done and as was his
practice, he tapped her on the neck and asked why her homework was
not done.
He disputed that he had assaulted any learner or that he
had hit A’s head against the desk or that he had kicked her.
[29]
In respect of Ms Vutha, the Applicant
testified that Ms Vutha asked him in the staff room what he had done
to A that made her cry
and he explained that he had spoken to her
about the fact that her homework was not done and they did not
discuss the matter any
further.
[30]
In respect of charge 2, the Applicant
testified that he also tapped Ab on his shoulder after Ab did not
carry out an instruction
and he asked him to explain why he did what
he was told not to do. The Applicant denied that he kicked, hit or
smacked Ab. He further
denied that he stood in front of the black
board and that Ab asked him to move away
[31]
The Applicant explained that when he went
to Ms Vutha’s class to ask Ab why he was telling lies to his
father about being
hit and he explained that he had a broom in his
hand, but it was not to hit Ab, but rather to protect himself from
Ab’s father,
who came to school with a walking stick. He
testified that he had asked the entire class whether he had hit Ab
and the whole class
asked Ab why he had lied to his father as the
Applicant did not hit him. He was very angry as Ab told lies to his
father.
[32]
The Applicant testified in respect of
charge 6 that he was very angry on 25 October 2011 because Mr Booysen
called him to the office
and informed him that Ab’s father was
there and he came to hit the Applicant with his walking stick and as
he left the Principal’s
office, Mr G came through the gate
pointing a walking stick at him and he thought that Mr G was doing
exactly what Mr Booysen warned
him about and he picked up stones to
defend himself.
[33]
In respect of charge 3, the Applicant
testified that Ms D requested that Lee-Anne be released so that she
could fit a dress and
he refused as he was busy with a maths lesson
and Lee-Anne was struggling with maths. Ms D left and he continued
with the class.
After the class was done, the Applicant went to the
toilet and when he returned to his classroom, he heard a lot of noise
and he
found Ms D and her mother at the door of the classroom. He
asked them why was the class so noisy when Ms D approached him. He
feared
that she was going to attack, more so since she brought
somebody with her and he pushed her away from him.
[34]
The Applicant explained that Ms D and her
mother were angry when they arrived on the second occasion.
[35]
The Applicant did not dispute that he swore
at Mr G but explained that Mr G also swore at him and the argument
started when Mr G
threatened to hit the Applicant with his walking
stick.
[36]
The Applicant called N T (N) as a witness.
She was a classmate of A and she testified as to the events relating
to A. She testified
that the Applicant requested the learners to take
out the homework he had given them the previous day and he walked
around in the
class to check whether they did their homework. A did
not do her homework and the Applicant asked her why her homework was
not
done and she did not respond. The Applicant tapped her at the
back of her neck and she started to cry. She cried for less than five
minutes. N confirmed that she was present in the class with A and she
did not see that the Applicant kicked A or that he had hit
her head
against the table that caused her nose to bleed. She was unaware of
the fact that A went to Ms Vutha and told her about
the incident or
that A went to the bathroom to wash her face.
[37]
In cross-examination, N testified that the
Applicant had never tapped her against her neck but that he pinched
her sometimes and
that made her angry. She explained that the
Applicant tapped A gently against her neck and she probably cried
because she did not
do her homework when everybody else did theirs.
She testified that when the learners did not do their homework, the
Applicant “
het altyd ‘n
plankie gehad wat ons mee slaan, dan slaan hy ons.”
[38]
The Applicant also called S N (S)as a
witness and he testified as to the events involving Ab. He testified
that on 24 October 2011
the Applicant gave the learners instructions
and when Ab did what he was not supposed to do, the Applicant tapped
him and asked
him why he did that. Ab cried and told his father that
the Applicant had hit him. He disputed that the Applicant had hit
Ab’s
head against the desk or that he had kicked him.
[39]
In respect of the events in Ms Vutha’s
classroom, S testified that the Applicant came to the class and asked
whether he had
hit Ab and the learners responded that he did not and
the Applicant left. Ab had run to the back of the classroom. The
witness
testified that the Applicant did not want to hit Ab with the
broomstick.
[40]
In cross-examination S testified that the
Applicant had a broomstick in his hand when he came to Ms Vutha’s
classroom and
that he thought that the Applicant was going to hit Ab
and Ab probably also thought so and that is the reason why he had run
to
the back of the class. He confirmed that when the learners did not
do their homework, the Applicant would tap them against their
necks,
but he stated that it was not painful and he disputed that the
Applicant had hit learners as he never observed him doing
that.
[41]
The last witness called by the Applicant
was K A (K) and she testified in respect of the events involving Ms
D. She explained that
Ms D came to school to fetch Lee-Anne for
measurements for clothes. The Applicant refused to release Lee-Ann
from class and he
said to Ms D that Lee-Ann could go at the break. Ms
D left and she came back later again to look for Lee-Anne. Ms D
grabbed the
Applicant’s shirt and he pushed her away. She did
not see that the Applicant slapped Ms D, she only saw that he pushed
her
away.
[42]
It is evident that there were five main
incidents covered by the charges levelled against the Applicant.
Those are: The A incident
of 13 October 2011, covered by charge 1,
the Ab incident of 24 October 2011 covered by charge 2, the Ms D
incident of 14 February
2012 covered by charge 3, the Mr G incident
of 25 October 2011 covered by charge 5 and the incident on 25 October
2011 in Ms Vutha’s
classroom.
[43]
It is evident from the transcribed record
that there were material factual disputes in the evidence presented
by the witnesses in
respect of the incidents.
Analysis of the arbitrator’s
findings and the grounds for review
[44]
In his analysis of the evidence, the
arbitrator recorded that there were two questions to be answered. The
first was whether or
not the Applicant had contravened any of the
rules as per the charge sheet and second, in the event that he has
contravened any
of the said rules, whether dismissal was an
appropriate sanction.
[45]
The arbitrator correctly recorded that the
matter essentially turned on a dispute of fact and he referred to the
appropriate manner
in which to deal with such disputes, namely that
he had to assess the credibility of a witness and the inherent
probability or
improbability of the versions placed before him.
[46]
The
approach to be adopted by arbitrators when faced with two disputing
versions was set out in
Sasol
Mining (Pty) Ltd v Ngeleni NO and Others
[1]
(and was referred to by the arbitrator
in
casu).
The
Court has held that the arbitrator must conduct an
‘
.
. . assessment of the credibility of the witnesses, a consideration
of the inherent probability or improbability of the version
that is
proffered by the witnesses, and an assessment of the probabilities of
the irreconcilable versions before the commissioner.
As Cele AJ (as
he then was) observed in
Lukhanji
Municipality v Nonxuba NO & others
[2007] 2 BLLR 130
(LC), while the LRA requires a commissioner to
conduct an arbitration hearing in a manner that the commissioner
deems appropriate
in order to determine the dispute fairly and
quickly, this does not exempt the commissioner from properly
resolving disputes of
fact when they arise.’
[47]
The arbitrator, faced with two conflicting
versions, had to follow the approach as set out by this Court and he
had to conduct an
assessment of the credibility of the factual
witnesses, their reliability and overall assessment of the inherent
probabilities
of the irreconcilable versions before him.
[48]
The gist of the Applicant’s case is
that the arbitrator did not properly consider the contradictions
between the employer’s
witnesses, he accepted the evidence of
the employer with no regard to the evidence in dispute thereof and he
accepted the employer’s
version without reconciling the
conflicting versions in the employer’s case. The arbitrator’s
failure to consider these
material issues resulted in a decision that
no reasonable decision maker could have made.
Charge
1: A M
[49]
In respect of charge 1 relating to A, the
witnesses who were able to testify to the events were the Applicant,
A, Ms Vutha and N.
[50]
A testified that she could not answer the
question the Applicant posed to her and he knocked her head and nose
twice against the
desk. She cried and her nose was bleeding. She
testified that she went to Ms Vutha so that Ms Vutha could wipe off
the blood from
her nose and that she told Ms Vutha that the Applicant
grabbed her and knocked her head against the desk.
[51]
Ms Vutha on the other hand testified that A
was crying and when she asked her why she was crying, she said that
the Applicant had
hit her. Ms Vutha denied that A told her what had
happened and she testified that she saw no blood or marks on A’s
face.
Ms Vutha’s evidence did not support A’s version.
[52]
The Applicant testified that A’s
homework was not done and as was his practice, he tapped her on the
neck and asked why her
homework was not done. He disputed that he had
assaulted any learner or that he had hit A’s head against the
desk or that
he had kicked her.
[53]
N testified that the Applicant tapped A on
the back of her neck and she started to cry. She cried for less than
five minutes. N
explained that A probably cried because she did not
do her homework when everybody else did theirs and she denied that
the Applicant
had hit her head against the desk or kicked A.
[54]
With these clear conflicting versions
facing him, the arbitrator’s function was to ascertain the
truth in the appropriate
manner.
[55]
The arbitrator found that as A is a minor,
her evidence is to be considered with utmost sensitivity. The
arbitrator found that as
a witness A was clear as to what happened on
the day in question when the Applicant on the other hand denied that
he had hit her
head against the desk, Ms Vutha confirmed that A was
crying, although she saw no nose bleeding and N’s evidence was
concerning
in that she did not sit close to A, yet she remembered in
detail that it was only a tap on the shoulder. The arbitrator further
found it concerning that A’s niece, who sat right next to her
was not called as a witness. The arbitrator held that as A
was crying
according to all the witnesses and still seemed afraid of the
Applicant, the most probable inference to be drawn is
that the
Applicant is guilty of charge 1.
[56]
It is evident from the arbitrator’s
assessment of the evidence and the conflicting versions that he did
not properly consider
the versions presented. On the one hand A
testified that her head was hit against the desk and she was kicked
to the extent that
her nose was bleeding. She went to Ms Vutha and
told her in detail what had happened and for Ms Vutha to clean the
blood. Not a
single witness, apart from A, saw the nose bleeding or
the hitting of her head against the desk, as the Applicant and N
denied
that it had happened. Ms Vutha’s version differed in
material respects from A’s version. The fact that the witnesses
saw A crying, does not mean she was crying because she was assaulted
by the Applicant as another version was presented namely;
she cried
because she did not do her homework, a version never considered by
the arbitrator.
Charge
2: Ab G
[57]
In respect of the second incident, the
witnesses who were able to testify to the events were the Applicant,
Ab and S.
[58]
Ab testified in respect of the events that
transpired on 24 October 2011 and he explained that he was writing on
the black board
and the Applicant was standing close to the black
board and when he asked the Applicant to move out of the way, the
Applicant hit
his head against a desk and also kicked him. He did not
cry and did not leave the classroom. When he got home, he told his
father
that the Applicant had hit his head against the desk.
[59]
The Applicant testified that he tapped Ab
on his shoulder after Ab did not carry out an instruction and he
asked him to explain
why he did what he was told not to do. The
Applicant denied that he kicked, hit or smacked Ab. He further denied
that he stood
in front of the black board and that Ab asked him to
move away. S testified that the Applicant gave the learners
instructions and
when Ab did what he was not supposed to do, the
Applicant tapped him and asked him why he did that. Ab cried and told
his father
that the Applicant had hit him. He disputed that the
Applicant had hit Ab’s head against the desk or that he had
kicked him.
[60]
Once again, the arbitrator was faced with
conflicting versions and he concluded that the most probable
inference to be drawn was
that the Applicant was guilty of charge 2.
[61]
It is evident from the arbitrator’s
assessment that he raised a number of questions, for example “why
did Ab G start
to cry if there was a comforting tap on the shoulder”
“why make such a big thing about it and why fabricate all of
his evidence” rather than to assess the evidence and the
probabilities.
Charge
3: Ms D
[62]
In respect of the third incident, the
witnesses who were able to testify to the events were the Applicant,
Ms D and K.
[63]
The arbitrator expressed his concern for
the fact that the Applicant pleaded guilty to this charge in his
disciplinary hearing,
yet in the arbitration he denied being guilty
of the charge. The arbitrator stated that he understood the principle
that the arbitration
was a hearing
de
novo,
yet he made it clear that he had
to consider this aspect.
[64]
It is evident from the transcribed record
that during the opening statement the Applicant’s
representative explained to the
arbitrator that the plea of guilty
will be changed to a plea of not guilty because the Applicant was
provoked when he smacked Ms
D and that it only became apparent after
consultation with his legal representative that the Applicant should
raise the defence
of provocation.
[65]
It is evident that the arbitrator did not
consider this explanation, but instead penalised the Applicant for
not sticking to his
version and accepted Ms D’s version as she
“at least stuck to her original version”.
[66]
The arbitrator accepted that there was some
aggression from Ms D and her mother towards the Applicant, but held
that it did not
justify his actions. There is once again no proper
consideration of the versions presented or the Applicant’s case
that his
conduct was in response to the conduct of Ms D and her
mother.
[67]
The arbitrator took the same approach and
the Applicant raised the same complaints in respect of the remaining
charges and I do
not deem it necessary to deal with the remainder of
the charges as I am convinced that the arbitrator failed to consider
and assess
the evidence as he should have done in respect of all the
charges.
[68]
In
Sasol
Mining
[2]
the
Court held that it was one of the prime functions of a commissioner
to ascertain the truth as to the conflicting versions before
him. The
Court held that:
‘
What
he manifestly lacked was any sense of how to accomplish this task, or
which tools were at his disposal to do so. The commissioner
was
obliged at least to make some attempt to assess the credibility of
each of the witnesses and to make some observation on their
demeanour. He ought also to have considered the prospects of any
partiality, prejudice or self-interest on their part, and determined
the credit to be given to the testimony of each witness by reason of
its inherent probability or improbability. He ought then to
have
considered the probability or improbability of each party’s
version. The commissioner manifestly failed to resolve the
factual
dispute before him on that basis. Instead, he summarily rejected the
evidence of each of the applicant’s witnesses
on grounds that
defy comprehension’.
[69]
It was within this context that the
evidence presented had to be assessed and it is the context within
which the arbitrator’s
assessment of the evidence placed before
him, should be considered.
[70]
I
have to deal with the grounds for review within the context of the
test this Court must apply in deciding whether the arbitrator's
decision is reviewable. The test has been set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
as whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach.
The
Constitutional Court very clearly held that the arbitrator's
conclusion must fall within a range of decisions that a reasonable
decision maker could make.
[71]
The arbitrator found in respect of each
charge that the most probable inference to be drawn is that the
Applicant was guilty of
the said charge. However, glaringly absent
from the arbitration award is an assessment of the credibility of the
witnesses or the
inherent probabilities of the versions presented or
reasons why the one version is to be preferred and the other to be
rejected.
[72]
The essential ingredients of an assessment
of the credibility of the witnesses and the inherent probability or
improbability of
the versions before him, is missing in the
arbitration award. In my view the arbitrator was incapable of dealing
with the disputes
of fact and he failed to perform one of his primary
functions, namely to resolve disputes of fact.
[73]
The arbitrator did not undertake a full
analysis of the evidence and the probabilities as they presented
themselves during the arbitration
proceedings.
[74]
In
Sidumo
[4]
it
was held that:
'[W]here
a commissioner fails to have regard to the material facts, the
arbitration proceedings cannot, in principle, be said to
be fair
because the commissioner fails to perform his or her mandate. In so
doing, in the words of Ellis the commissioner's action
prevents the
aggrieved party from having its case fully and fairly determined.
This constitutes a gross irregularity in the conduct
of the
arbitration proceedings, as contemplated by s 145(2)
(a)
(ii)
of the LRA. And the ensuing award falls to be set aside not because
the result is wrong but because the commissioner has committed
a
gross irregularity in the conduct of the arbitration proceedings.'
[75]
The same considerations apply to an
arbitrator who fails properly to resolve an irreconcilable dispute of
fact. For these reasons,
the arbitrator’s award falls to be
reviewed and set aside.
[76]
In casu,
the
arbitrator failed to assess the credibility and reliability of all
the witnesses, nor did he have regard to the inherent probabilities
of the competing versions before him. That failure, and the fact that
the award may have been different had the arbitrator properly
acquainted himself, renders the award reviewable on account of a
gross irregularity committed by the arbitrator in the conduct
of the
arbitration proceedings.
Relief
[77]
This leaves the issue of relief.
[78]
The Applicant seeks for the arbitration
award to be reviewed and set aside and to be substituted with an
order that his dismissal
was unfair and that he be reinstated
retrospectively. Alternatively, the Applicant seeks an order
remitting the matter for a hearing
de
novo.
[79]
In the event the award is set aside on
review, this Court has a discretion whether or not to finally
determine the matter.
[80]
In casu
the
arbitrator failed to apply his mind to issues which were material to
the determination and the outcome of the dispute. In his
heads of
argument, the Applicant submitted that it would be impossible to
determine this matter without proper credibility findings
and an
arbitrator is best placed to do so. The Applicant seeks an order to
remit the matter for a hearing
de novo.
Ms Rawjee for the employer submitted in
her argument before Court that if the review was granted, the matter
should be remitted
for a hearing
de
novo.
[81]
I see no reason to disagree with the relief
sought by the Applicant and not opposed by the employer as I am also
of the view that
it would be in the interest of the parties and in
the interest of justice to have the matter properly decided.
[82]
This Court has a wide discretion in respect
of costs and in my view this is a matter where the interest of
justice will be best
served by making no order as to cost.
[83]
In the premises, I make the following
order:
Order
1.
The
arbitration
award issued on 11 February 2014 under case number PSES250-13/14EC
is
reviewed and set aside;
2.
The dispute is remitted for a hearing
de
novo
before an arbitrator other than
the Second Respondent;
3.
There is no order as to costs.
______________
Connie Prinsloo
Judge of the Labour Court of South
Africa
Appearances:
Applicant:
Advocate M Grobler
Instructed by:
Nel, Mentz, Steyn and Ellis Attorneys
Third Respondent:
Advocate A Rawjee
Instructed by:
The State Attorney
[1]
(2011) 32
ILJ 723 (LC) at 727C-F.
[2]
Supra
at para 9.
[3]
2007 28 ILJ
2405 (CC) at para 110.
[4]
Supra
n
4 at para 68.