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[2019] ZALCJHB 193
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Department of Home Affairs v General Public Services Sectoral and Others (JR281/17) [2019] ZALCJHB 193; (2019) 40 ILJ 2544 (LC) (14 August 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JR281/17
In
the matter between:
DEPARTMENT
OF HOME AFFAIRS
Applicant
and
GENERAL
PUBLIC SERVICES SECTORAL
BARGAINING
COUNCIL First
Respondent
MARTIN
SAMBO N.O.
Second
Respondent
PUBLIC
SERVICES ASSOCIATION OBO
M.A.
NESENGANI
Third
Respondent
Heard:
16 July 2019
Delivered: 14
August 2019
Summary:
Application to review and set aside arbitration
award – condonation ruling – condonation
granted in the
interests of justice and to bring finality – late filing of
heads - incomplete records filed - reviewed the
merits of the
application – Arbitrator afforded hearsay evidence appropriate
weight – punitive costs not awarded –
Review Application
dismissed.
JUDGMENT
DEANE
AJ
Introduction
[1]
This is an application to review and set aside an arbitration award,
handed
down by the Second Respondent (hereinafter “the
Commissioner” and/or “Arbitrator”) under case
number GPBC
1747/2015 and dated 6 November 2016. In terms of this
award, the Commissioner held that the dismissal of the individual
Third Respondent
(the Employee) by the Applicant (the Employer) was
substantively unfair, and awarded reinstatement with retrospective
effect to
the date of dismissal, with back pay in the sum of
R284 128.00. The Applicant seeks to review and set aside this
award.
[2]
In the answering affidavit, the Third Respondent raises a number of
preliminary
points. The Third Respondent opposes the review
application on a basic starting point premised upon the Applicant’s
failure,
firstly, in filing their Heads of Argument timeously;
secondly, in the Applicant’s failure to file a complete record
required
in terms of Rule 7A(6) of the Labour Court Rules and
thirdly, the Third Respondent argues that the chronology and the
common cause
facts reflect that the Applicant failed to file a full
record, alternatively the relevant portions thereof.
[3]
It is common cause that the Review Application to this court is late
and
that the Applicant filed the application outside the prescribed
six-week period within which an application for review has to be
filed. The Applicant, therefore, seeks condonation for the late
filing of the Review Application.
[4]
The Application for Condonation and Review is opposed only by the
Third
Respondent.
Preliminary
Issues
Failure
to file Heads of Argument timeously
[5]
The Third Respondent filed the required Heads of Argument in
compliance
with a directive from the Registrar of the Labour Court
(received by the Third Respondent’s attorneys of record on 12
July
2018), requiring the parties to file Heads of Argument and
calling upon the Applicant to file its Heads of Argument within 15
days
of the directive and the Third Respondent to deliver Heads of
Argument within 10 court days upon receipt of the Applicant’s
Heads of Argument.
[6]
Despite this Directive, the Applicant failed to file its Heads of
Arguments
on 02 August 2018.
[7]
The Third Respondent further argues that they were not properly
served
with the Heads of Argument when it was eventually filed.
[8]
The Third Respondent further maintains that the Applicant failed to
attend
to the required Index and Pagination of the court file, which
was duly attended to by the Third Respondent’s attorneys.
[9]
The Applicant was called upon to provide reasons for both the late
filing
of the Heads of Argument and for not effecting proper service
of the Heads of Argument on the Third Respondent. The Applicant
replied
that this failure was due to an administrative error on their
part and that they were extremely sorry.
[10]
Having due regard to process and this Court’s mandate to deal
with matters expeditiously
and fairly, Counsel for the Third
Respondent was afforded the opportunity of a recess to peruse the
Heads of Argument. After a
short recess, the Third Respondent’s
Counsel confirmed that the Applicant’s Heads of Argument were
very similar to
the previous Heads of Argument filed and he could,
therefore, continue with his arguments. I am indebted to Counsel for
his consideration
in the avoidance of unnecessary delays in the
administration of justice.
Failure
to file a full/complete record, alternatively the relevant portions
thereof
[11]
The Third
Respondent maintains that the Applicant failed to file a complete
record as required in terms of Rule 7A(6) of the Labour
Court
Rules;
[1]
that the Applicant
failed to file the full record of the disciplinary proceeding despite
having being informed of same by the Third
Respondent’s
Attorney of record and that the Applicant proceeded to file an
incomplete record at the Arbitration hearing.
[12]
The
Applicant argues that “
initially
the record was incomplete to the extent that it did not fully set out
the evidence of Mr Cairo Mabala, who was the presiding
officer at the
internal disciplinary hearing as well as that of Mr Aaron Dubazana,
who is the security officer who heard of the
sexual harassment from
the complainant and referred the matter to his superiors
”.
[2]
The Applicant maintains that the review application “
can
still be determined without the evidence of the two witnesses due to
the fact that the record of the disciplinary hearing was
not only
before the commissioner, but the entire case hinges on what happened
in the room and none of the two witnesses (Mabala
and Dubazana) were
present in that room
.”
[3]
[13]
The parties assisted in the compilation and reconstruction of a
transcribed record of the
Arbitration hearing, which the parties,
inclusive of the Third Respondent, confirmed the correctness thereof.
[14]
The subsequent reconstructed transcribed record of the arbitration
hearing was incomplete/missing.
It was meant to contain 24 pages
(1-24) but instead contained 20 pages (1-20). Four pages are not
included in the transcription
of the reconstructed record.
[15]
No explanation for the missing parts of the record was provided to
this Court, but what
is clear is that both parties did attempt to
reconstruct the record.
[16]
The Applicant maintains that the evidence missing from the
transcribed report is that of
re-examination of Mr Aaron Dubazana,
that the re-examination is not pertinent to the case; and that none
of the grounds for this
review turns on his evidence.
[17]
In respect of the status of the record, as filed, the Third
Respondent sets out that the
record, even though reconstructed, is
incomplete and that the Court should have been provided with a more
complete record. He further
sets out that the missing parts of the
record are material.
[18]
The Applicant argues that the evidence that is missing pertains to
the re-examination of
Mr Dubazana. I cannot say exactly what is
missing from the record but if one takes into account that the last
page (page 20) starts
with the re-examination of a witness one is
inclined to accept the Applicant’s version that the missing
pages pertain to
the re-examination of Mr Dubazana. The full record
of the referral to Disciplinary Hearing remains missing from the
bundle of documents
provided to this Court.
[19]
The Applicant maintains that despite this and having regard to the
fact that the review
turns on the evidence of the complainant and the
Third Respondent, this Court can still hear the merits of the case.
[20]
In respect of the late filing of the record on review, the Practice
Manual of the Labour
Court reads as follows:
‘
11.2.3 If the
applicant fails to file a record within the prescribed period, the
applicant will be deemed to have withdrawn the
application, unless
the applicant has during that period requested the respondent’s
consent for an extension of time and
consent has been given.’
[21]
It is common cause that this was not done by the Applicant.
[22]
Based on this, the Applicant’s Review Application is
accordingly deemed to have been
withdrawn in that he failed to file
the record on review within sixty (60) days from the date he was
notified by the Registrar
in terms rule 7A(5) that the record had
been received by the Court and that it may be uplifted. Further, the
Applicant was meant
to apply to reinstate his review application but
he only seeks condonation in this regard. No explanation was given or
pardon requested
from this Court in this regards.
[23]
The Third
Respondent consistently maintains that the Applicant “
falls
foul of the provisions and requirements of the practice manual
applicable, specifically 11.2.7 thereof
”
and that the “
review
application is therefore “fatally defective and stands to be
dismissed with punitive costs
”.
[4]
[24]
Quoting
from
Makhoba
v Eskom Holdings (SOC) Ltd,
[5]
the Third Respondent maintains that a similar factual scenario was
considered wherein “
the
third respondent sets out that the applicant has not made out a
proper case for condonation of the late filing of the record
of
proceedings; that the applicant has no prospects of success on review
and that the applicant has not demonstrated to the Court
that he has
grounds for review
”
[6]
and that because of this “
the
filing of a supplementary affidavit by the Applicant should in this
light be regarded as irregular, without leave from the court
being
requested or granted to the Applicant to do so which renders the
supplementary affidavits to be struck
”.
[7]
[25]
The Applicant failed to seek leave from the Court in this regard. As
such, his supplementary
affidavit is irregular; a party seeking to
act as such should specifically apply both in its papers and in Court
for such an indulgence.
The Applicant’s supplementary affidavit
should be struck from the record of pleadings.
[26]
It should,
however, be noted that in the
Makhoba
case, the court went on further to state that “
despite
this and in the interest of finally disposing of this matter and
because the Third Respondent answers thereto I have taken
the
applicant’s supplementary affidavit into account
”.
[8]
In this, I also concur.
[27]
Furthermore, and despite the record being incomplete, I believe that
the review application
can still be decided upon based on the
arbitration award, the common cause issues, the transcribed portions
of the record and the
affidavits filed.
The
Condonation Application
[28]
Regarding
the Condonation Application, the principles applicable to
applications for condonation are trite and
as
enunciated in
Melane
v Santam Insurance Co Ltd
.
[9]
The following was said about the factors that will be taken into
account when considering a Condonation Application:
‘
In deciding
whether sufficient cause has been shown, the basic principle is that
the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects of success may tend
to compensate for a
long delay. And the respondent's interests in finality must not be
overlooked’.
[10]
[29]
The court
in
Melane
emphasised that any attempt to formulate a rule of thumb should be
avoided. These factors are not necessarily cumulative, but they
are
interrelated, and the court or tribunal has a judicial discretion in
deciding whether or not in any given case these factors
have been
canvassed.
[11]
[30]
The
Supreme Court of Appeal in
Mulaudzi
v Old Mutual Life Assurance Company (South Africa) Limited
[12]
reiterated the applicable principles as follows:
‘
A
full, detailed and accurate account of the causes of the delay and
their effects must be furnished so as to enable the Court to
understand clearly the reasons and to assess the responsibility.
Factors which usually weigh with this court in considering an
application for condonation include the degree of non-compliance, the
explanation therefor, the importance of the case, a respondent’s
interest in the finality of the judgment of the court below, the
convenience of this court and the avoidance of unnecessary delay
in
the administration of justice.’
[13]
[31]
Condonation may be refused where there has been a flagrant breach of
the rules especially where
no explanation is proffered.
[14]
The
degree of lateness
[32]
The Applicant maintains that the review application was lodged 26
days out of time whilst the
Third Respondent maintains that the
application is at least 31 days late, calculated from the 11
th
of January 2017 to the date of the Notice of Motion issued, being the
23
rd
of February 2017.
[33]
The Notice of Motion whilst dated 21
st
February 2017 was
received and stamped by this Court on 23
rd
February 2017,
and if one accepts that the Notice of Motion was issued on 23
rd
February then the Review Application becomes 31 days late.
The
explanation for the delay
[34]
The Applicant is required to provide a “
full,
detailed and accurate account of the causes of the delay and their
effects … It must be obvious that, if the non-compliance
is
time-related then the date, duration and extent of any obstacle on
which reliance is placed must be spelt out
.”
[15]
[35]
Whilst the arbitration award was dated 06 November 2016, the
Applicant argues that the same was
only received by their offices on
30 November 2016.
[36]
The Applicant maintains that the internal procedure dictates that
upon receipt of an award, the
Applicant is required to discuss it
with the Chief Director, Mr Sello Malaka as well with the Assistant
Director of labour relations,
Ms Ngobese. This discussion is done in
order to determine the appropriate course of action going forward.
[37]
The Applicant argues that this discussion was not forthcoming due to
the intervening holidays
with Ms Ngobese being away on leave.
Essentially, the Applicant’s reason for not filing the review
application timeously
is given as being administrative in nature in
that its Assistant Director of labour relations, Ms Ngobese was on
leave from 18
December 2016 to 19 January 2017.
[38]
Ms Ngobese, however, only advised the Department’s Legal
Services to launch an application
for review on 2 February 2017 and
the State Attorney, who is the Applicant’s representative
herein, opened the file on 7
February 2017.
[39]
The date of the Notice of Motion incorporating an Application for
Condonation was dated 21 February
2017. Ms Ngobese deposed to
an affidavit in support of the Application for Condonation.
[40]
The Third Respondent opposes the Application and argues that the
Applicant fails to provide any
acceptable explanation for the delay
incurred in bringing the review application. It is further argued
that the Applicant has failed
to provide an acceptable explanation on
“
how
”
and “
why
”
the default occurred, and that the explanation provided by the
Applicant “
evidences
wilful default or gross negligence
”.
[16]
[41]
The Applicant, whilst providing some explanation, clearly
fails
to provide an explanation for the entire period of the delay. In the
Condonation Application, the Applicant fails to account
for firstly:
the delay between 30 November 2016 (when the award was received) to
18 December 2016 (when the Assistant Director
went on leave);
secondly: neither the Applicant nor the Deponent to the affidavit, Ms
Ngobese, gives a proper account for the delay
between 20 January 2017
to 7 February 2017 (when the file was eventually opened); and
thirdly: no reasonable explanation is given
for the delay in the
review application from 7 February 2017 to 21 February 2017 (when it
is provided that the Applicant’s
representative then attended
to the drafting of the Review Application).
[42]
It is my opinion that the time delay is not so egregious or the
explanation so unsatisfactory
or incomplete that condonation should
be refused out of hand. A fuller picture would have been desirable,
but the court is still
able from the facts presented by the deponent
to determine in broad terms the reasons for the delay. I do not
consider it appropriate,
in the circumstances of the case, to refuse
condonation without first considering the prospects of success and
whether there is
some other compelling reason for leave to be
granted.
Prospects
of Success
[43]
In respect of prospects of success, the Applicant sets out that “
as
far as the prospects of success are concerned, I draw the attention
of this Honourable Court to the contents of the founding
affidavit
and respectfully submit that the respondent has good prospects
”.
[17]
The Third Respondent maintains in his Answering Affidavit that “
it
is not sufficient for an Applicant to submit that the Founding
Affidavit would reflect the prospects of success
”
[18]
;
further that “
it
is simply unsatisfactory for the Applicant to submit that the
Founding Affidavit would reflect the prospects of success
”
[19]
and further submits that the prospects of success for the Applicant
are non-existent.
[44]
I am in agreement that it is wholly unsatisfactory to merely direct
the Court’s attention
to the Founding Affidavit without setting
out in detail the prospects of success, but this is not reason in
itself to disregard
the prospects of success in its entirety. This
Court has a duty to take into consideration whether or not it would
be in the best
interests of justice to grant condonation whilst
having regards to the various other factors as enunciated in
Melane
.
[45]
In
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
,
[20]
it was held that:
‘
it was appropriate
that an application for condonation be considered and granted if that
is in the interests of justice and refused
if it is not. The
interests of justice must be determined by reference to all relevant
factors including the nature of the relief
sought, the extent and
cause of the delay, the nature and cause of any other defect in
respect of which condonation is sought,
the effect on the
administration of justice, prejudice and the reasonableness of the
applicant’s explanation for the delay
or defect’.
[21]
[46]
In
Grootboom
v National Prosecuting Authority and Another
[22]
Zondo J held that:
‘
The interests of
justice must be determined with reference to all relevant factors.
However, some of the factors may justifiably
be left out of
consideration in certain circumstances. For example, where the delay
is unacceptably excessive and there is no explanation
for the delay,
there may be no need to consider the prospects of success. If the
period of delay is short and there is an unsatisfactory
explanation
but there are reasonable prospects of success, condonation should be
granted.’
[47]
In
Num
v Council for Mineral Technology
[23]
the Court restated the position that: “the approach is that the
Court has a discretion, to be exercised judicially upon consideration
of all the facts, and in essence, it is a matter of fairness to both
sides.”
[24]
[48]
In this case, the Applicant maintains, in his Heads of Argument dated
8 August 2018, that the
prospects of success are good and in favour
of the Applicant. The Third Respondent disagrees.
[49]
One must not lose sight of the interest of the Third Respondent in
the finality of the judgment.
The Third Respondent was dismissed in
July 2015 and it is now July 2019, four years have passed since his
dismissal, he, therefore,
has an interest in the finality of a
judgment.
[50]
Taking into account the interests of justice herein, I am satisfied
that the delay is not excessive
and, in view of the evaluation on the
merits of the Review Application, I am satisfied that, considering
all factors relevant to
condonation applications, condonation for the
late filing of the review should be granted.
[51]
I will now proceed to consider the Applicant’s Review
Application on the merits thereof,
starting with the setting out of
the relevant factual background.
Material
Background Facts
[52]
The Third Respondent was employed by the Applicant as a Control
Immigration Officer from 1 January
1998 and was stationed at the
Lindela Holding Facility for illegal immigrants. As part of his
duties, he was required to ensure
that detentions do not exceed 30
days without the court having granted an extension.
[53]
The Third Respondent was charged with misconduct arising from an
allegation of sexual harassment
against one Ms LYR Perez, the
complainant in the matter and a female illegal immigrant from
Bolivia.
[54]
It is common cause that the complainant gave statements at the
disciplinary hearing which differed
from her written statement.
[55]
Ms Perez was not fluent in the English language. Her statement was
taken down by her Bolivian
friend who acted as interpreter, but who
was also not fluent in English. The friend did not give evidence at
the disciplinary or
at the arbitration hearing.
[56]
Following a disciplinary process, the Third Respondent was dismissed
from employment on 28 April 2015.
The sanction of dismissal was
upheld by the Appeal’s authority on 15 July 2015.
[57]
Ms Perez was deported to Bolivia shortly after the conclusion of the
disciplinary hearing.
[58]
The Applicant referred an unfair dismissal dispute to the First
Respondent, wherein the case
was arbitrated upon by the Commissioner.
The Arbitration Award dated 6 November 2016 was received by the
Applicant on 30 November
2016.
[59]
At the arbitration hearing, the parties submitted a joint bundle of
documents and transcripts
of the initial disciplinary hearing. The
Commissioner admitted the transcripts as hearsay evidence.
[60]
In the matter at hand, the Commissioner only had the benefit of the
Employee’s testimony
with the main witness, Ms Perez, being
unavailable due to her having been deported.
[61]
Neither the disciplinary record nor Ms Perez’s
statement on charges against the Employee forms part of the
record of
evidence provided to this Court.
Grounds
for Review
[62]
In terms of the Applicant’s grounds, the award is mainly
attacked for the Commissioner’s
failure to apply rules of
evidence most particularly in relation to hearsay. The Applicant
argues that the Commissioner “
failed
to apply the rules of evidence
”
and “
thus
misconceived the nature of the enquiry
”.
[25]
[63]
The Applicant argues that the Commissioner committed an irregularity
in that he failed to consider
material evidence that was put before
him by witnesses of the Third Respondent.
[64]
The Commissioner committed a misconduct in that he failed to have
regard to the fact that a misconduct
has been committed by the Third
Respondent.
[65]
The Applicant further maintains that the Commissioner did not apply
his mind to the material
evidence and/or ignored crucial
circumstances in the case in that “
the
commissioner appears not to have considered the evidence led at the
disciplinary hearing, more particularly the transcript despite
having
admitted such as part of the evidence to be considered in the
determination of the arbitration
”,
[26]
and that because of this, the decision reached by the Commissioner is
not a decision that a reasonable arbitrator would be able
to come to.
[66]
The Third Respondent denies that the Commissioner committed any
irregularity or that the Commissioner
failed to consider material
evidence that was placed before him and further argues that the
Applicant “
is
in fact attempting to launch an Appeal cloaked in the guise of an
application to review the award
”.
[27]
[67]
The Third Respondent denies that the Commissioner failed to apply his
mind to the evidence or
that the Commissioner failed in any
meaningful manner to deal with the evidence before him.
Legal
Considerations
The
Test on Review
[68]
The test that the Labour Court is required to apply in a review of an
arbitrator’s award
is, “is the decision reached by the
commissioner one that a reasonable decision-maker could not
reach?”
[28]
[69]
In
Sidumo
and Another v Rustenburg Platinum Mines Ltd
and
Others,
[29]
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, and the reasonableness test is still aptly
described in the pre-
Sidumo
case
of
Computicket
v Marcus NO and Others
[30]
where it was held that “the question I have to decide is not
whether [the arbitrator’s] conclusion was wrong but whether
...
it was unjustifiable and unreasonable.”
[70]
As the Court rightly pointed out in
The
National Commissioner of the South African Police Service v Myers and
Others
[31]
“….whatever one’s personal view may be, the test
as set out in
Sidumo
...
is whether or not the arbitrator’s decision that dismissal is
an appropriate sanction is a decision that a reasonable
decision-maker could reach.”
[71]
In this regard, the Supreme Court of Appeal has reminded this Court
that the test is that of
review and not appeal.
[32]
Our
courts have therefore repeatedly stated that in order to maintain the
distinction between a review and an appeal, an award of
an arbitrator
will only be set aside if both the reasons and the result are
unreasonable. In determining whether the result of
an arbitrator’s
award is unreasonable, the Labour Court must broadly evaluate the
merits of the dispute and consider whether,
if the arbitrator’s
reasoning is found to be unreasonable, the result is, nevertheless,
capable of justification for reasons
other than those given by the
arbitrator. The result will, however, be unreasonable if it is
entirely disconnected with the evidence,
unsupported by any evidence
and involves speculation by the arbitrator.
[33]
[72]
An award will no doubt be considered to be reasonable when there is a
material connection between
the evidence and the result or, put
differently when the result is reasonably supported by some evidence.
Unreasonableness is,
thus, the threshold for interference with an
arbitrator’s award on review.
[73]
In
Gold
Fields
Mining
SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
,
[34]
the Court rejected a piecemeal or fragmented approach to reviews,
where each factor that the commissioner failed to consider is
analysed individually and independently, for principally two reasons.
The first is that it “assumes the form of an appeal”
and
not a review, and the second is that it is mandatory for the
reviewing court to consider the totality of the evidence and then
decide whether the decision made by the arbitrator is one that a
reasonable decision-maker could make. To evaluate every factor
individually and independently, it observed, is to defeat the
requirements in s 138 of the Labour Relations Act
[35]
(LRA) in terms of which the arbitrator is required to deal with the
substantial merits of the dispute between the parties with
the
minimum of legal formalities, albeit expeditiously and fairly.
[36]
[74]
On this approach, therefore, the failure of a commissioner “to
mention a material fact
in his or her award”, or “to deal
in his/her award in some way with an issue which has some material
bearing on the
issue in dispute”, or “commits an error in
respect of the evaluation or consideration of facts presented at the
arbitration”
[37]
would not, in itself, render the award reviewable.
Having considered the evidence at arbitration, the Court held “….I
cannot accept that the arbitrator’s decision
fell outside of
the band of decisions to which reasonable people could come.”
[38]
[75]
In
Fidelity
Cash Management Service v CCMA and Others
[39]
Zondo
JP applied the
Sidumo
test
thus:
‘
It
will often happen that, in assessing the reasonableness or otherwise
of an arbitration award or other decision of a CCMA commissioner,
the
court feels that it would have arrived at a different decision or
finding to that reached by the commissioner. When that happens,
the
court will need to remind itself that the task of determining the
fairness or otherwise of such a dismissal is in terms of
the Act
primarily given to the commissioner and that the system would never
work if the court would interfere with every decision
or arbitration
award of the CCMA simply because it, that is the court, would have
dealt with the matter differently.’
And
that:
‘
The
test enunciated by the Constitutional Court in
Sidumo
for
determining whether a decision or arbitration award of a CCMA
commissioner is reasonable is a stringent test that will
ensure that
such awards are not lightly interfered with. It will ensure that,
more than before, and in line with the objectives
of the Act and
particularly the primary objective of the effective resolution of
disputes, awards of the CCMA will be final and
binding as long as it
cannot be said that such a decision or award is one that a reasonable
decision-maker could not have made
in the circumstances of the case.
It will not be often that an arbitration award is found to be one
which a reasonable decision-maker
could not have made but I also do
not think that it will be rare that an arbitration award of the CCMA
is found to be one that
a reasonable decision-maker could not, in all
the circumstances, have reached.’
[76]
The test that this Court must apply in deciding
whether the arbitrator’s decision is reviewable is whether the
conclusion
reached by the arbitrator was so unreasonable that no
other arbitrator could have come to the same conclusion.
[77]
It is on this basis that I proceed with the merits of the application
below.
De
Novo Proceedings
[78]
It is trite that arbitration proceedings are conducted
de novo.
Section 138 of the LRA stipulates
that the Commissioner can use his discretion as to the manner in
which he would like to conduct
the hearing. Therefore, it is said
that arbitration cases are considered as hearings
de
novo
. The Commissioner
is tasked with determining the fairness or otherwise of the
employer’s decision and is not meant to reconvene
a
disciplinary hearing.
This begs the question of whether the
record of a disciplinary proceeding is necessary for the fair
determination of the dispute
at the CCMA, in light of the fact that
the arbitration is hearing
de novo
?
[79]
In
Sidumo,
the Constitutional Court explained how
the discretion contained in section 138 of the LRA should be
understood, as follows:
‘
Equally true is
that when an employer determines what is an appropriate sanction in a
particular case, the employer may have to
choose among possible
sanctions ranging from a warning to dismissal. It does not follow
that all transgressions of a particular
rule must attract the same
sanction. The employer must apply his or her mind to the facts and
determine the appropriate response.
It is in this sense that the
employer may be said to have discretion’.
[40]
‘
But recognising
that the employer has such discretion does not mean that in
determining whether the sanction imposed by the employer
is fair, the
Commissioner must defer to the employer. Nor does it mean that the
Commissioner must start with bias in favour of
the employer. What
this means is that the Commissioner … does not start with a
blank page and determine afresh what
the appropriate sanction is. The
commissioner’s starting point is the employer’s decision
to dismiss. The commissioner’s
task is not to ask what the
appropriate sanction is but whether the employer’s decision to
dismiss is fair.’
[41]
[80]
The Commissioner cannot disregard the record of disciplinary
proceedings purely because he is
hearing the matter for the first
time. The record of disciplinary proceeding could also be used to
assess whether the dismissal
of the employee was effected in
accordance with a fair procedure. Most importantly, the commissioner
must test the totality of
the evidence submitted by the employer
against the guidelines on dismissal set out in the LRA Code of Good
Practice: Dismissal.
[42]
Hearsay
Evidence
[81]
The current position with regards to hearsay evidence is that hearsay
evidence may generally
be admissible, but the weight afforded to that
evidence should be considered in light of the nature of the evidence.
In other words,
due to the evidence being hearsay, the weight given
to such evidence will be affected. Ultimately, its reliability will,
to a large
extent, determine the weight that will be given to the
evidence.
[82]
In the
Minister
of Police v M
[43]
case, the court was tasked with considering, in the absence of the
complainant, the weight that should be attached to the transcribed
record of an internal disciplinary hearing. According to section 3(4)
of the Law of Evidence Amendment Act,
[44]
hearsay is defined as “evidence, whether oral or in writing,
the probative value of which depends on the credibility of any
person
other than the person giving such evidence”. Ordinarily, in the
absence of the presence of witnesses, a recordal of
oral testimony
would not hold much weight or value.
[83]
The Labour Court pointed out that, while it may be an error or
irregularity to attach too much
weight to hearsay evidence, not
giving hearsay evidence sufficient weight may also constitute a
material error or irregularity.
[45]
According to the Judge, the
M
case represented an example of a case in which the hearsay evidence
was not afforded sufficient weight, in that the Commissioner
did not
seem to realise that the transcripts were no ordinary hearsay, but
were “hearsay of a special type”.
[46]
This distinctiveness could be attributed to the fact that the
transcripts comprised a bilateral and comprehensive record of earlier
proceedings in which the child victim’s evidence was
corroborated by at least two other witnesses, with the evidence
withstanding
rigorous cross-examination and in which the employee’s
own defence was “ventilated and exposed as being
implausible”.
[47]
The
court went on to say that transcripts such as the ones in the present
case must be afforded greater intrinsic weight than simple
hearsay
(such as a witness statement handed up during the course of a
hearing), because they constitute a comprehensive and reliable
record
of a prior quasi-judicial encounter between the parties.
[48]
[84]
The Court concluded that “in appropriate factual circumstances”
hearsay, such as
a transcript of a properly run internal hearing,
might carry enough weight to require of the accused employee to rebut
the allegations
contained in the hearsay. According to the Judge, a
reasonable decision-maker would have appreciated that the transcripts
did not
contain mere allegations, but rather tested allegations and a
contested denial. As such, the transcripts constituted
prima
facie
evidence of the employees’ wrongdoing.
[49]
[85]
A number of guidelines for what would constitute appropriate factual
circumstances to depart
from the norm, as in this case, were set out
by the court. In terms of these guidelines, the hearsay should: be
contained in a
record which is reliable accurate and complete; be
tendered on the same factual dispute; be bilateral in nature; be in
respect
of the allegations; demonstrate internal consistency and some
corroboration at the time the hearsay record was created; show that
the various allegations were adequately tested in cross-examination;
and have been generated in procedurally proper and fair
circumstances.
[50]
Analysis
[86]
The dispute came before the Commissioner, who was tasked with
determining the substantive and
procedural fairness of the dismissal,
without having access to the complete record of the disciplinary
proceedings. In his evaluation
of what his duties were, the
Commissioner in his award clearly states that the issue to be decided
was if the dismissal of the
Third Respondent by the Applicant was
both procedurally and substantively unfair. The Commissioner,
therefore, had a clear understanding
of what his duty in this matter
was.
[87]
In his award, he sets out the issues to be decided, background to the
issues, a summary of both
the Third Respondent’s and
Applicant’s evidence, an analysis of the evidence and
arguments, the process, substance,
testing
of the totality of the evidence submitted by the employer against the
guidelines on dismissal set out in Article 7 of the
Code of Good
Practice.
[88]
With regards to the evidence, the Commissioner correctly
admitted the transcripts as hearsay evidence, since they were plainly
relevant
to the issue in dispute and the Applicant had a good reason
for the absence of the complainant, in that she was deported to her
country, Bolivia.
[89]
The
M
case highlights the difficulty experienced by presiding
officers in evaluating hearsay evidence once they have exercised
their discretion
to introduce hearsay evidence in a given situation.
[90]
The Employer called two witnesses to testify in support of its case,
namely, Cairo Mabala (Mabala)
who was the presiding officer in the
disciplinary hearing of the employee, and Aaron Dubazana (Dubazana) a
security officer who
took the statement from the complainant.
Dubazana is tasked with “
looking
after the illegal immigrants (inmates). When an incident occurs in
the centre they investigate by calling inmates to explain
their
concern, make an entry, take a statement and then escalate the matter
to superiors
”.
[51]
[91]
The Third Respondent called Mr Emmanuel Maswanganyi in support of his
case. He was not a witness
to the alleged incident but was called
mainly to corroborate the Third Respondent’s version that he
was “
having
his meals whilst Ms Perez was on the phone and that they all went out
without any sign of any incident
”.
[52]
[92]
The Commissioner’s award is primarily challenged for his
decision not to accept evidence
contained in the affidavits submitted
during arbitration proceedings.
[93]
It is common cause that the Complainant was deported by the
Applicant. The Third Respondent argues
that “
it
is therefore of no use for the Applicant to complain about the lack
of the Complainant’s evidence at a later stage while
it was in
fact the authority that has deported the Complainant in the
matter
”.
[53]
[94]
The
M
case and the difficulty faced by the Commissioner herein, in the face
of admitting hearsay evidence,
[54]
has highlighted the importance of having a comprehensive and reliable
record of internal hearings where the complainant is not
available to
give evidence at an arbitration hearing. It also highlights
that where the transcripts constitute a comprehensive
and reliable
record of a prior quasi-judicial encounter between the parties, it
must be afforded greater intrinsic weight than
simple hearsay
evidence.
[95]
The importance of striking a balance between giving hearsay evidence
too much or too little weight
is highlighted once again.
[55]
This becomes even more difficult when the hearsay is admitted in
terms of s 3(1)(c).
[56]
When
hearsay is admitted in the interest of justice, the general rules of
evidence should be applied in deciding how much weight
to afford to
the hearsay evidence. These factors include the nature of the
proceedings; the nature of the evidence; the purpose
for which the
evidence is tendered; the reason why the evidence is not being given
by the person upon whose credibility the probative
value of such
evidence depends; any prejudice to a party which the admission of
such evidence might entail and any other factor
which should in the
opinion of the court be taken into account.
[57]
[96]
Three of these factors received specific attention in the
M
case and is particularly relevant for the case before me. These
included the nature of the evidence; the prejudice to the party
which
the admission of such evidence might entail and the reason why the
evidence was not being given by the person upon whose
credibility the
probative value of such evidence depended.
[97]
With regard to,
inter
alia
,
the nature of the evidence in the
M
case was that it was specific hearsay evidence and it was “of a
special type” in that it comprised a bilateral and
comprehensive record of earlier proceedings. This evidence was
furthermore corroborated and survived competent testing by way of
cross-examination.
[58]
The
court stressed that the main argument against affording any weight to
hearsay evidence is the fact that it cannot be subjected
to
cross-examination as the source of the evidence is not present and is
it thus prejudicial to the party against whom the hearsay
evidence
should be tendered.
[59]
In the
M
case, the hearsay evidence was a record of the source actually being
cross-examined in quasi-judicial proceedings.
[60]
In that case, the main argument against affording weight to the
evidence was thus addressed by the fact that the hearsay evidence
was
subjected to cross-examination and that the cross-examination was
also recorded.
[98]
On the evidence before me and from the Arbitration Award, Mabala
testified that the Applicant
did in fact have an opportunity to
cross-examine the complainant. The disciplinary recordings of what
the cross-examination or
examination in chief entailed are not before
the court.
[99]
Also, the Court found in the
M
case that the prejudice to the party against whom the hearsay record
was to be tendered was reduced, in that the party was not
deprived of
an opportunity to cross-examine the witness but of a second
opportunity to cross-examine the witness.
[61]
The finding by the court that such evidence should in appropriate
circumstances be afforded greater intrinsic weight than simple
hearsay evidence (such as a witness statement) is supported.
[100]
In the current case, the Third Respondent was afforded the
opportunity to question/examine and cross-examine the
complainant at
the initial hearing, however the intrinsic details of the
cross-examination remain vague. It is not properly recorded
nor does
it form part of the bundle of evidence before the court.
[101]
Furthermore, it is contended by the Applicant that various versions
were not put to the complainant during cross-examination
and that
various issues were not denied by the Third Respondent.
[62]
Whilst the Third Respondent was cross-examined at the arbitration to
gain clarity, the complainant could not be questioned to gain
clarity
on the fact that the complainant’s oral evidence contradicted
her written statement of the incident.
[102]
The Commissioner was, as he has rightly put it, faced with two
versions.
[103]
The issue then turns to the credibility of the witnesses and the
weight to be afforded to the hearsay evidence.
The weight of hearsay
evidence can be enhanced by the production of other evidence that
corroborates the hearsay. In this case,
the Commissioner found that
there was not enough forthcoming in support of the Applicant’s
case but found that the Third
Respondents witness (Maswanganyi)
corroborated the Third Respondent’s version
[63]
and that therefore the Third Respondent’s version of what
happened on the day in question was more probable than the version
provided by the Applicant.
[104]
The Applicant argues that because the hearsay evidence was accepted
by the Commissioner that it should have been
afforded more weight.
However, the fact that hearsay evidence is admitted does not mean
that it is automatically true or even particularly
persuasive. It is
still open to the arbitrator to find that certain evidence, which he
admitted, is untrue, unreliable or improbable
and should be rejected.
Alternatively, the arbitrator may find that certain admitted
evidence, while constituting proof, does not
carry much weight. Once
the evidence and concluding arguments have been presented, the
arbitrator must evaluate all the evidence
together to determine the
facts of the case. In other words, the arbitrator must evaluate which
relevant facts have been admitted
or proved, and what inferences he
or she can draw from these facts. In addition, the arbitrator must
evaluate whether the party
who bore the
onus
of proof has
sufficiently proved all the elements of its case and has a more
probable version than the other party.
[105]
The Commissioner recognised that there were contradictions in the
complainant’s oral testimony and written
statement. He took
into account that English was not her first language. The
Commissioner could not, because of her absence, question/examine,
cross-examine nor qualify discrepancies in the complainant’s
version of events. The Commissioner was also, as far as this
Court
can tell, not privy to a comprehensive and complete record of the
disciplinary hearing, and even if the Commissioner were
privy to such
details, this Court could not comment on the completeness and/or
reliability of the evidence led therein due to such
record not being
filed in this Review Application. The Commissioner, therefore, could
not afford the transcript and statement more
weight than the oral
evidence of the Third Respondent. If this happened, then it becomes
difficult not to see the prejudice against
the Third Respondent. One
of the glaring differences between this case and the
M
case is
that whilst vulnerable victims do not have to give evidence more than
once in circumstances where a formal hearing took
place and the
victim’s evidence as well as the cross-examination of the
evidence has been tested and is properly recorded,
that is clearly
not the case herein.
[106]
As to the absence of the complainant, the Applicant’s key
witness, I am inclined to agree with the Third
Respondent that the
Applicant is the author of its own fate, having deported its own
crucial witness upon which the charges and
this review application is
premised.
[107]
Furthermore and in addition, the Applicant did not provide the
Commissioner with the complete record of the disciplinary
hearing and
failed to provide adequate reasons to this Court for the failure to
do so. It would make more sense then that since
the Applicant was
obviously the author of its own woes that it should have been more
diligent in procuring the records in order
to support its case at the
arbitration hearing and the subsequent review application.
[108]
Even after requests from the Third Party Respondents, the Applicant’s
further and continued non-compliance
with the rules of this Court in
terms of the filing of records and the filing of heads etcetera is of
concern.
[64]
The Applicant’s
inadequate response and reasons show a lack of respect and regard for
the rules of this Court, and is unacceptable.
This non-compliance,
without any reasonable and acceptable reasons, goes against the grain
of dealing with matters expeditiously
and fairly.
The
reasonableness of the Arbitrators award
[109]
In this case, the employer decides to dismiss the employee after a
hearing. The Commissioner conducts an arbitration
de novo.
In
the award the Commissioner, whilst finding the dismissal procedurally
fair found the dismissal to be substantively unfair
and ordered
reinstatement with back pay.
[110]
In the light of the totality of circumstances, established by the
evidence at arbitration, the Commissioner must
then decide whether
the decision to dismiss was fair. In doing so, it is the
Commissioner’s own sense of fairness that must
prevail.
[65]
One must also take into account that
in
assessing the reasonableness and fairness of the decision to dismiss
one may interfere with the employer’s decision only
if that
decision is found to be unreasonable and unfair when assessed against
an independent standard.
[111]
The
Commissioner in his award
[66]
tested
the substantive nature of the dismissal against an agreed
rule/standard, the validity of which was not disputed.
[67]
The
Commissioner found that based on the evidence placed before him, it
was more probable that the Third Respondent did not contravene
a
standard and therefore dismissal was not an appropriate sanction in
this instance.
[112]
Furthermore,
the Commissioner was faced with a situation where the hearsay
evidence was found wanting and in this Court’s
view the
Commissioner attached the correct weighting to the hearsay in the
assessment of the case as a whole. The Commissioner
considered the
principle issue before him; evaluated the facts presented at the
hearing, and came to a conclusion that this Court
considers to be
reasonable taking into account that the determination of whether a
sanction is fair entails making a value judgment.
[113]
The Commissioner’s award passes the test for
reasonableness set out in
Herholdt
in that, it cannot be said
to be entirely disconnected with, or unsupported by the evidence. The
evidence led at the arbitration
clearly bears out the fairness and
reasonableness of overturning the sanction of dismissal imposed by
the Applicant at the disciplinary
hearing.
[114]
In light of these considerations, the decision of the
Commissioner to reinstate the Third Respondent does not in my view,
fall outside
of a range of reasonable responses to the Applicant’s
case.
[115]
Having due regard to the reasoning of the Commissioner on the
evidence before him at the arbitration, it is clear
from an analysis
of the award that the Commissioner properly weighed up all of the
evidence before him – the totality of
the circumstances, in the
parlance of
Sidumo
– and it is in the light of
all those circumstances that he found that dismissal was not a fair
sanction.
[116]
The conclusion that the Commissioner reached is one that a reasonable
decision-maker would have come to and I
am therefore unable to
conclude that his decision was one that a reasonable decision-maker
could not reach.
Costs
[117]
The final issue to be decided upon is the issue of costs.
[118]
Insofar as costs are concerned, this Court has a broad
discretion in terms of section 162 of the LRA to make orders
for
costs according to the requirements of the law and fairness.
[119]
The Third Respondent maintains that it is entitled to punitive costs
mainly because of the Applicants non-compliance
with Rule 7A(5) and
(6) of the Labour Court Rules.
[120]
The Constitutional Court in
Zungu
v Premier of Kwazulu-Natal and Others
[68]
confirmed that the rule of practice that costs follow the result does
not apply in labour matters, but that the Court should seek
to strike
a fair balance between unduly discouraging parties from approaching
the Labour Court and have their disputes dealt with
and, on the other
hand allowing those parties to bring to this Court cases that should
not have been brought to Court in the first
place.
That
is a balance that is not always easy to strike but, if the court is
to err, it should err on the side of not discouraging parties
to
approach these courts with their disputes.’
[69]
[121]
In this matter I have a duty to strike a fair balance and in doing so
I have considered the fact that there is
a continued or maybe an
ongoing relationship after the dispute has been resolved, and that an
order of costs may damage the employment
relationship and thereby
affect labour peace and conciliation.
Order
:
[122]
In the premises, I make the following order:
(1) Condonation
for the late referral of the review application is granted.
(2) The
Review Application is dismissed.
(3) There
is no order as to costs.
___________________
T
Deane
Acting
Judge of the Labour Court
APPEARANCES:
For
the Applicant: SB
Nhlapo of the State Attorney
For
the Third Respondent: Adv P
Louw
Instructed
by: Otto
Krause Attorneys
[1]
Rule 7A(6) provides that: The applicant must furnish the registrar
and each of the other parties with a copy of the record or
portion
of the record, as the case may be, and a copy of the reasons filed
by the person or body.
[2]
Applicant’s
Heads of Argument dated 14 August 2018 at pg 2 para 3.
[3]
Ibid
at
para 4.
[4]
Third Respondents Heads of Argument dated 30 August 2018 at pg 6
para 18-19.
[5]
Makhoba
v Eskom Holdings (SOC) Ltd
JR
1820/2012 ZALCJHB 390 (25 October 2017). (
Makhoba
).
[6]
Third Respondents Heads of Argument dated 30 August 2018 at pg 6
para 20.
[7]
Ibid
at para 21.
[8]
Makhoba
at
para 57.
[9]
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A). (
Melane
).
[10]
Ibid
at 532B-E.
[11]
Minister
of Justice and Constitutional Development v General Public Service
Sectoral Bargaining Council and
Others
2017 (38) ILJ 213 at paras 3-4. (
Minister
of Justice and Constitutional Development).
[12]
Mulaudzi
v Old Mutual Life Assurance Company (South Africa) Limited
2017
(6) SA 90
(SCA). (
Mulaudzi
).
[13]
Ibid
at
para 26.
[14]
Erasmus
v Absa Bank Ltd and Others
,
Unreported, Case No: A/982/13, Gauteng Provincial Division, Pretoria
at para 11.
[15]
Uitenhage
Transitional Local Council v South African Revenue Service
2004 (1) SA 292
(SCA) at para 4.
[16]
Third
Respondent’s Heads of Argument
dated
30 August 2018 at
pg
10 para 35.
[17]
Founding
Affidavit of Lungile Cecilia Ngobese
at pg 4
.
[18]
Third
Respondent’s Answering Affidavit at pg 13 para 45.
[19]
Ibid
at
para 46.
[20]
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000 (5) BCLR 465
;
2000 (2) SA 837
(CC). (
Brummer
).
[21]
Ibid
at para 3.
[22]
Grootboom
v National Prosecuting Authority and Another
2013 (5) ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC);
2014
(1) BLLR 1
(CC); 2014 (35) ILJ 121 (CC). (
Grootboom
).
[23]
Num v
Council for Mineral Technology
1999
(3) BLLR 209
(LAC). (
Num
).
[24]
Ibid
at
211-213.
[25]
Applicants Heads of Argument dated 14 August 2018 at
pg
24 paras 52 – 52.3.
[26]
Ibid
at pg 25 para 52.7.
[27]
Third Respondents Heads of Argument dated 30 August 2018 at pg 10
para 36.
[28]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC) at para 110. (
Sidumo
).
[29]
Ibid
at paras 118-119.
[30]
Computicket
v Marcus NO and Others
1999 (20) ILJ 343 (LC) 346.
[31]
The
National Commissioner of the South African Police Service v Myers &
Others
CA 4/09 (unreported), Labour Appeal Court, Cape Town (2 March 2012)
at paras 103-104. (
Myers
).
[32]
See
National
Union of Mineworkers & Another v Samancor Ltd (Tubatse
Ferrochrome) & Others
2011
ZASCA 74
(25
May 2011).
[33]
Herholdt
v Nedbank Ltd
(701/2012)
2013 ZASCA 97
;
2013 (6) SA 224
(SCA);
2013 (11) BLLR 1074
(SCA);
2013 (34) ILJ 2795 (SCA) (5 September 2013). (
Herholdt
).
[34]
Gold
Fields
Mining
SA (Pty) Ltd (Kloof Gold Mine) v CCMA
2014 (1) BLLR 20
(LAC). (
Gold
Fields
).
[35]
Labour Relations
Act
66 of 1995
.
[36]
Gold
Fields
at paras 18-21.
[37]
Ibid
at para 20.
[38]
Myers
at paras 103-104.
[39]
Fidelity
Cash Management Service v CCMA & Others
2008
(3) BLLR 197
(LAC)
at paras 98-100. (
Fidelity
Cash Management Service
).
[40]
Sidumo
at
paras 177-178.
[41]
Ibid
.
[42]
See
Sidumo
and
Palluci
Home Depot (Pty) Ltd v Herskowits
2015
(5) BLLR 484
(LAC).
[43]
See
Minister
of Police v M
2017
(38) IJL 402 (LC). (
M
case).
[44]
Law of Evidence Amendment Act 45 of 1988
.
[45]
M
case
at
para 35-37.
[46]
Ibid
at para
37.
[47]
Ibid
.
[48]
Ibid
at
para
40.
[49]
Ibid
at
para
43.
[50]
Ibid
at
para
45.
[51]
Arbitration
Award dated 6 November 2016 at pg 4.
[52]
Ibid
at
pg 7.
[53]
Third
Respondent’s Further Answering Affidavit at pg 10 para 41.
[54]
See
pg
98 of para 15 of the transcribed proceedings on 8 September 2016
where the Arbitrator states: “
These
are difficult cases. These ones are not easy cases
”.
[55]
M
case
at
para 36.
[56]
Of the
Law of Evidence Amendment Act.
>[57]
See
s 3(1)(c)
of the
Law of Evidence Amendment Act.
[58
]
M
case
at
para 37.
[59]
M
case
at
para 41.
[60]
Ibid
.
[61]
M
case
at
para 42.
[62]
See
Founding Affidavit, Supplementary Affidavit, Further Supplementary
Affidavit and Heads of Argument of the Applicant.
[63]
To
the extent that “the Applicant was having his meals whilst Ms
Perez was on the phone and that they all went out without
any sign
of incident”. See pg 6 of the Arbitration Award.
[64]
See the
Third
Respondents Heads of Argument dated 30
th
August 2018.
[65]
Fidelity
Cash Management Services
at paras 98-100.
[66]
See
page 6 of the Arbitration Award.
[67]
The
Arbitration Award at pgs 6-7.
[68]
Zungu v
Premier of Kwazulu-Natal and Others
2018 (39) ILJ 523 at para 24.
[69]
Member
of the Executive Council for Finance, KwaZulu-Natal and Another v
Dorkin NO and Another
2008
(29) ILJ 1707 (LAC) at para 19.