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[2019] ZALCJHB 232
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Ramabulana v CCMA and Others (JR1190/16) [2019] ZALCJHB 232 (3 September 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: JR 1190/16
In the matter between:
AVHAPFANI OSLEY
RAMABULANA
Applicant
and
CCMA First
Respondent
L NOWESENETZ
N.
O
Second
Respondent
UNIVERSITY
OF SOUTH AFRICA
Third Respondent
Heard: 29 August 2019
Judgment
delivered: 3 September 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the second
respondent (the arbitrator). In his award, the
arbitrator held that the applicant had been fairly dismissed by the
third respondent
(the university).
[2]
The applicant was employed by the third respondent (the university)
as an employee
relations specialist. He was dismissed on 3 July 2014
after being found guilty at a disciplinary hearing of three of the
nine charges
brought against him. The applicant disputed the fairness
of his dismissal and the matter was referred ultimately to
arbitration.
Both parties were represented by attorneys at the
arbitration hearing, which extended over some four non-consecutive
days, this
after a lengthy disciplinary hearing. The present case,
where the record exceeds 1000 pages, is an example of a wasteful
allocation
of resources to an individual dismissal dispute, and an
affront to the statutory purpose of expeditious dispute resolution.
[4]
In his award, the arbitrator summarised the evidence of each witness,
and dealt with
each of the charges against the applicant. I do not
intend to repeat that evidence here; it is sufficient to record that
the evidence
led by the university’s witnesses was that the
applicant had irregularly hired a vehicle in a category higher than
that to
which he was entitled for purposes of a business trip to
Polokwane, that he deviated from the trip to use the vehicle for
personal
purposes (specifically, to collect his wife and child and
transport them to Pretoria) and that he misrepresented that he was
entitled
to a benefit intended to compensate relocated employees for
bond registration costs.
[5]
The arbitrator acknowledged the dispute of fact presented by the
evidence. He concluded
that no material improbabilities or
contradictions emerged from the evidence presented by the university.
On the other hand, he
found that the applicant was an unreliable and
untruthful witness. In regard to the charge relating to the use of a
more expensive
vehicle than that to which the applicant was entitled,
the arbitrator concluded that the probabilities were ‘compelling’
that the applicant had written “no Eurocar” on the
relevant form, that by so doing he intended to acquire a vehicle
in a
more expensive class, that he had engaged in a telephone call with
Mr. Mtungwa regarding the request (a conversation
that the applicant
had denied), and that given Mtungwa’s reliability as a witness
and there being no reason for him to create
the version he presented,
the applicant had committed the misconduct alleged. In relation to
the charge of deviating from the route
to Polokwane and back to
Pretoria, the arbitrator rejected the applicant’s defence that
his superior, Mr. Sithole, who was
his passenger, had given him
permission to do so. The arbitrator held specifically that the
applicant had not reported his deviation
from the route, nor had he
tendered the cost of the additional mileage. The arbitrator drew a
negative inference from the applicant’s
failure to subpoena
Sithole. The arbitrator concluded that the applicant had deliberately
concealed his trip to Venda from the
university, and dishonestly
gained the advantage of the free use of the hired vehicle. In
relation to the relocation policy, the
arbitrator noted that the
benefit of a R40 000 payment to assist with mortgage costs was
dependent on registration costs being
incurred. In the absence of any
proof that the applicant had incurred such costs, the applicant was
not entitled to the benefit
and had misrepresented the facts to the
university. The arbitrator held that the trust relationship between
the applicant and the
university had broken down, that the applicant
had shown no remorse, and that the sanction of dismissal was
accordingly fair.
[6]
The applicant contends that the award stands to be reviewed and set
aside on the basis of
procedural and substantive grounds. In so far
as the procedural grounds are concerned, the applicant contends that
the arbitrator
denied his representative the right to call witnesses
to establish procedural unfairness and secondly, that he intervened
in the
proceedings to an extent that the applicant was denied a fair
hearing. In regard to substance, the applicant contends that the
arbitrator failed properly to assess the evidence before him and thus
came to a conclusion that cannot be sustained by reference
to the
evidence.
[7]
I deal first with the procedural challenges. The Labour
Relations Act (LRA)
sought to introduce a dispute resolution system
that would resolve labour disputes expeditiously, informally and
inexpensively.
Section 138 (1) of the Act promotes this purpose
and in relation to the conduct of arbitration hearings under the
auspices of the
first respondent (the CCMA) provides the following:
The commissioner may
conduct the arbitration in a manner that the commissioner considers
appropriate in order to determine the dispute
fairly and quickly, but
must deal with the substantial merits of the dispute with the minimum
of legal formalities.
[8]
The application of the statutory injunction to determine a dispute
fairly and quickly,
having regard to the substantive merits but
without legal formality, may often be fraught with internal tension.
To determine a
dispute quickly might require robust intervention by a
commissioner, but the obligation to act fairly to both sides must not
be
compromised and may serve to limit the nature and extent of any
intervention. Similarly, the injunction to conduct the proceedings
with the minimum of legal formality may justify a decision by a
commissioner to conduct proceedings with less regard for the
formality
that ordinarily characterises a trial in this court or any
other civil court, but it is not an invitation or a license to
disregard
the parties’ right to a fair hearing. The broad
principle that emerges from the case law is that commissioners (and
judges)
ought to exercise caution when they intervene in the
proceedings over which they preside.
[9]
In
Vodacom Service Provider Co (Pty) Ltd
v Phala No & others
(2007) 28 ILJ
1335 (LC), this court reviewed and set aside an arbitration award in
circumstances where the court held that amongst
other things, that
the commissioner concerned had questioned a party’s witnesses
in a way that amounted to cross-examination
and thus overstepped the
boundaries of fair procedure in the conduct of arbitration
proceedings. The court went on to note that
a commissioner has a
discretion about how an arbitration should be conducted and that the
commissioner may decide to adopt an adversarial
or an inquisitorial
approach but that irrespective of the approach adopted, the
commissioner is required to conduct arbitration
proceedings in a
fair, consistent and even-handed manner. At paragraph 15 of the
judgment, the court said the following:
A commissioner cannot
assist or be seen to assist, one party to the detriment of the other.
A commissioner cannot put to witnesses
his propositions, should not
interrupt the witness’s answers, challenge the consistency of a
witness with his own evidence,
indicated that he doubted the
witness’s credibility, or make submissions regarding the
construction of evidence.
[10]
The Constitutional Court has held that when commissioners conduct
arbitration hearings, they
perform an administrative function. While
there are awards the requirements of fairness, consistent with the
LRA and the Constitution,
dictate that CCMA arbitration proceedings
should be conducted in a fair manner are not reviewable in terms of
the
Promotion of Administrative Justice Act, 3 of 2000
the CCMA is an
administrative body (see
Sidumo & another v Rustenburg
Platinum Mines Ltd & others
2008 (2) SA 24
(CC). Ngcobo J
made the point in the following way:
[266]
The requirement of fairness in the conduct of arbitration proceedings
is consistent with the LRA and the
Constitution. First, a CCMA
commissioner is required by s 138 (1) of the LRA ‘to determine
the dispute fairly and quickly’.
Second, in terms of s 34 of
the Constitution, everyone has the right to have any dispute that can
be resolved by the application
of the law decided in a fair public
hearing before a court of law or an independent and impartial
tribunal. The CCMA and Labour
Court is well-established to resolve
labour disputes. CCMA arbitrations provide independent and impartial
tribunals contemplated
in s 34 of the Constitution. The right to fair
hearing before a tribunal lies at the heart of the rule of law. And a
fair hearing
before a tribunal is a pre-requisite for an order
against an individual and this is fundamental to a just and credible
legal order.
A tribunal like the CCMA is obliged to ensure that
proceedings before it always fair. And finally, 23 of the
Constitution guarantees
to everyone the right to fair labour
practices.
And further:
[267]
It is plain from these constitutional and statutory provisions that
CCMA arbitration proceedings should
be conducted in a fair manner.
The parties to CCMA arbitration must be afforded a fair trial.
Parties to the CCMA arbitrations
have a right to have their cases
fully and fairly determined.
[11]
The LRA spells out the nature and content of the right to a fair
hearing in CCMA arbitration
proceedings – these are established
primarily by s 138(1), referred to above. A commissioner is
required to conduct
the arbitration in a manner that the commissioner
considers appropriate in order to determine the dispute fairly and
quickly, but
must deal with the substantial merits of the dispute
with the minimum of legal formalities. Subsection (2) provides that
subject
to the discretion of the commissioner as to the appropriate
form of the proceedings, a party to the dispute may give evidence,
call witnesses, question the witnesses of any other party, and
address concluding arguments to the commissioner. In
CUSA v Tao
Ying Metal Industries & others
[2009] 1 BLLR 1
(CC), the
Constitutional Court (per Ngcobo J) placed the following gloss on s
138:
[65]
Consistent with the objectives of the LRA, commissioners are required
to ‘deal with the
substantial merits of the dispute with the
minimum of legal formalities’. This requires commissioners to
deal with the substance
of a dispute between the parties. They must
cut through all the claims and counter claims and reach for the real
dispute between
the parties. In order to perform this task
effectively, commissioners must be allowed a significant measure of
latitude in the
performance of their functions. Thus the LRA permits
commissioners to conduct the arbitration in a manner that the
commissioner
considers appropriate’. But in doing so,
commissioners must be guided by at least three considerations. The
first is that
they must resolve the real dispute between the parties.
Second, they must do so expeditiously. And, in resolving the labour
dispute,
they must act fairly to all the parties as the LRA enjoins
them to do.
[12]
In the present instance, in my view, and after a careful perusal of
the record, the arbitrator’s
conduct was not such that he
overstepped the mark. The transcribed record reflects that the
commissioner respected the roles of
the parties’ respective
representatives and did not assume to himself the role of leading
evidence and conducting cross-examination.
The high-water mark of the
applicant’s case is the arbitrator’s intervention during
the cross-examination of the witness
Gilbert, in an exchange that
concerned the calculation of a reasonable mileage from Pretoria to
Polokwane. The applicant’s
representative complained of being
‘frustrated’ by the arbitrator’s intervention. The
record discloses the following:
COMMISSIONER: What is it
that you did not understand about the evidence when she testified?
MR
RAMARUMO: You know, Commissioner, I am frustrated.
COMMISSIONER:
I know why you are frustrated. It is because your questions have got
no purpose. I would also be frustrated if I ask
questions like this.
MR RAMARUMO:
I am frustrated in the sense that I am made to feel that I cannot ask
any other questions
without the Commissioner interjecting and
directing me to ask…[intervenes]
COMMISSIONER:
If you want to question her and how she calculated those fixed
distances, go ahead. We will
go through it. Yes, proceed. You may go
ahead. Yes, what is it you want to ask?
[13]
Two observations are warranted. First, the above extract must
necessarily be seen in a context
where the record extends to 693
pages. At best for the applicant, it is an isolated expression of
(justifiable) impatience and
frustration on the part of the
arbitrator. Secondly, to the extent that the complaint that the
arbitrator’s conduct denied
him a fair hearing, the passage
discloses that despite the intervention about which the applicant
complains, the applicant’s
representative was permitted to put
his question. I fail to see in these circumstances there can be said
to be any prejudice to
the applicant.
[14]
In so far as the applicant contends that his representative was
denied the opportunity to challenge
the procedural fairness of his
dismissal, the record makes clear that during the opening address by
the applicant’s representative,
the arbitrator enquired of him
was precisely was procedurally unfair. The representative answered:
MR RAMARUMO:
There was an instance where, if I am not wrong, where there was no
cross-examination on the
part of the employer and I do not understand
where the applicant had led evidence and the employer does not rebut
his evidence
but find against him. We feel that is unprocedural at
most. So that is one of the biggest procedural was occasioned during
the
disciplinary hearings.
COMMISSIONER: Are you
saying that there is a duty to cross-examine? I have never heard of
that.
MR RAMARUMO:
The assertion is that the employer…[intervenes]
COMMISSIONER: Did not
cross-examine?
MR RAMARUMO: Did not
cross-examine.
COMMISSIONER:
So what is irregular about that?
MR RAMARUMO:
No, I am saying the employer had made up a case against the employee
and said that there
were offences that have been committed.
COMMISSIONER:
Yes, that is substantive.
MR RAMARUMO: Yes.
COMMISSIONER:
That is not a procedural problem. Making up a case is a substantive
issue and not a procedural
issue. …
COMMISSIONER: Does the
applicant say that he was allowed to present his case at the
disciplinary hearing?
MR RAMARUMO:
The applicant was allowed to present his case at the disciplinary
hearing.
[15]
The applicant’s representative raised no further procedural
complaints. In these circumstances,
the arbitrator was justified in
concluding, as he did in paragraph 4 of his award, that the applicant
had not challenged procedural
fairness. An opening address serves to
characterise the nature of the dispute, identify the issues in
dispute, and the basis of
the defence to the claim (see
Consol Ltd
v Kanjee & others
(2008) 29
ILJ
1474 (LC) at paragraph
17). The only procedural issue raised by the applicant’s
representative in his opening address and
in response to an
invitation by the arbitrator to articulate the basis on which
procedural fairness was challenged, was correctly
categorised by the
arbitrator as one of substance. There is accordingly no merit in this
ground for review.
[16]
Turning next to the ground of review relating to the arbitrator’s
assessment of the evidence,
the test to be applied is one that
recognises and reinforces the distinction between a review and an
appeal. This court is entitled
to intervene if and only if the
arbitrator’s decision is one that falls outside of a band of
decisions to which a reasonable
decision-maker could come on the
available material. The
locus classicus
remains
Head of
Department of Education v Mofokeng & others
[2015] 1 BLLR 50
(LAC)
,
where the LAC said the following:
[30]
The failure by an arbitrator to apply his or her mind to issues which
are material to the determination of a case will usually
be an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in
Herholdt v Nedbank Ltd
and this court in
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others
have held that before such an irregularity will result in the setting
aside of the award, it must in addition reveal a misconception
of the
true enquiry or result in an unreasonable outcome…
[32]
…Mere errors of fact or law may not be enough to vitiate the
award. Something more is required. To repeat: flaws in
the reasoning
of the arbitrator, evidenced in the failure to apply the mind,
reliance on irrelevant considerations or the ignoring
of material
factors etc. must be assessed with the purpose of establishing
whether the arbitrator has undertaken the wrong enquiry,
undertaken
the enquiry in the wrong manner or arrived at an unreasonable result.
Lapses in lawfulness, latent or patent irregularities
and instances
of dialectical unreasonableness should be of such an order
(singularly or cumulatively) as to result in a misconceived
inquiry
or a decision which no reasonable decision-maker could reach on all
the material that was before him or her.
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce
an unreasonable outcome or provide
a compelling indication that the arbitrator misconceived the inquiry.
In the final analysis,
it will depend on the materiality of the error
or irregularity and its relation to the result. Whether the
irregularity or error
is material must be assessed and determined
with reference to the distorting effect it may or may not have had
upon the arbitrator’s
conception of the inquiry, the
delimitation of the issues to be determined and the ultimate outcome.
If but for an error or irregularity
a different outcome would have
resulted, it will
ex hypothesi
be material to the
determination of the dispute. A material error of this order would
point to at least a
prima facie
unreasonable result. The
reviewing judge must then have regard to the general nature of the
decision in issue; the range of relevant
factors informing the
decision; the nature of the competing interests impacted upon by the
decision; and then ask whether a reasonable
equilibrium has been
struck in accordance with the objects of the LRA. Provided the right
question was asked and answered by the
arbitrator, a wrong answer
will not necessarily be unreasonable. By the same token, if an
irregularity or error material to the
determination of the dispute
may constitute a misconception of the nature of the enquiry so as to
lead to no fair trial of the
issues, with the result that the award
may be set aside on that ground alone. The arbitrator however must be
shown to have diverted
from the correct path in the conduct of the
arbitration and as a result failed to address the question raised for
determination.
[17]
The arbitrator appreciated the nature of the enquiry. He properly
appreciated and applied the
test to determine the material dispute of
fact before him, amongst other things, by making credibility findings
and determining
the respective probabilities of the versions that
served before him. The applicant’s grounds for review suggest
that the
arbitrator came to a decision that was incorrect.
Arbitrators are allowed to be wrong. They are not allowed to come to
decisions
that are so unreasonable that no reasonable decision-maker
could reach the same decision on the available material.
[18]
In regard to the charge relating to the hiring of the vehicle, as I
have indicated above, the
arbitrator correctly identified the dispute
of fact, in particular the existence or otherwise of a discussion
between the applicant
and Mtungwa. He found that it was more probable
that Mtungwa had telephoned the applicant concerning the endorsement
“No
Europcar’ on the F36 form and that there was no
motive for Mtungwa to fabricate a version. Mtungwa freely admitted
that he
was an experience in its position, and that he had taken the
applicant’s explanation during the telephone call at face value
and approved the travel application without further verification. He
admitted that this was a mistake on his part. The commissioner’s
evaluation and assessment of the evidence cannot be faulted and the
conclusion to which he came was reasonable.
[19]
In regard to the charge that concerned the use of a vehicle and the
unauthorised trip to Venda
pick up the applicant’s wife and
child, the arbitrator considered the inherent probabilities in this
defence and found the
applicant’s version to be improbable,
particularly since it was a violation of the University’s
travel policy. Insofar
as the applicant did not dispute that he had
travelled 1225 kilometres as opposed to the 700 kilometres that
constituted a reasonable
distance for the trip, and insofar as the
applicant relied on the defence that Sithole had authorised him to
make the deviation,
the arbitrator took into account that the
applicant’s explanation was not corroborated and drew a
negative inference from
the applicant’s failure to call Sithole
as a witness. It should be recorded that the arbitrator had
specifically warned the
applicant of his failure to call Sithole. The
arbitrator found that it was improbable that Sithole would have
advised the applicant
not to disclose his trip to Venda and further
took into account the fact that the applicant did not pay for the
extra distance
travelled in the vehicle. In support of the present
application, the applicant’s counsel submitted that it was for
the University
to have called Sithole, and that no negative inference
could be drawn from the applicant’s failure to do so. There is
no
merit in this submission. The applicant did not dispute having
used the vehicle for private use. To the extent that his defence
was
that he had obtained authorisation to what amounted to a breach of
the University’s policies and a clear act of dishonesty,
it was
incumbent on the applicant to satisfy the arbitrator as to the merits
of that defence. He failed to do so and in these circumstances,
the
university cannot be held to account for this failure.
[20]
Insofar as the relocation policy is concerned, the arbitrator clearly
recognised the distinction
between the general relocation benefit and
the benefit really relevant to the charge against the applicant, the
once off payment
of R 40,000 to assist with mortgage registration
costs. The arbitrator reasonably considered that registration of a
mortgage bond
created an entitlement to this benefit. On an
evaluation of the evidence, the arbitrator concluded that the
applicant had not shown
that a mortgage bond was registered by him of
any property in Pretoria. On an evaluation of the totality of the
evidence in relation
to this charge, the arbitrator considered that
the misrepresentation lay in the fact that the applicant knew or
ought to have known
by the end of November 2008 that he would not be
completing his transaction to purchase the property in Mont Bernini
and that he
was not entitled to the benefit.
[21]
In short, the arbitrator, in respect of each charge, evaluated the
totality of the evidence led
in the proceedings before him and
assessed that evidence in accordance with the required approach. I
fail to appreciate how it
can be said that he committed any material
irregularity in this regard or how it can be said that the outcome of
the proceedings
under review falls outside of a band of decisions to
which reasonable decision-makers could come on the available
material. For
the above reasons, the application to review and set
aside the arbitrator’s award stands to be dismissed.
[22]
Section 162 provides that this court may make orders for costs
according to the requirements of the
law and fairness. The court thus
has a discretion to make costs orders, one that must be exercised
judicially having regard to
all of the relevant factors. In the
present instance, the applicant has brought an application that is
frankly devoid of merit.
The backlog in the opposed motion court is
largely a consequence of applications such as the present, where a
review is regarded
as the next step in the dispute resolution
process, one where an applicant has little to lose on account of the
remote prospect
of an adverse order for costs, in what more often
than not amounts to an appeal disguised as a review. For this reason,
I was inclined
to dismiss the application with costs. On the other
hand, the court is cautious not to close its doors to genuinely
aggrieved litigants
who pursue their interests in good faith. In the
present instance, with a great deal of hesitation, I find that the
present application
falls into the latter category and that while the
application borders on an abuse of the process of this court, the
applicant’s
conduct is not so egregious so as to warrant an
order for costs. I also accept that the applicant remains unemployed
and that the
costs of an application such as the present, with its
unnecessarily long record, is likely to inflict a financial blow from
which
he is unlikely to recover. On balance, the interests of the law
and fairness are best satisfied by each party bearing its own costs.
I
make the following order:
1.
The application is dismissed.
André van Niekerk
Judge
REPRESENTATION
For the applicant: Adv. B
Roode, instructed by Friedland Hart Solomon and Nicholson
For the third respondent:
Mr. I Mohammed, Hogan Lovells (South Africa) Inc.