About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2019
>>
[2019] ZALCCT 14
|
|
Louw v Commission for Conciliation, Mediation and Arbitration and Others (C367/17) [2019] ZALCCT 14; [2019] 9 BLLR 921 (LC) (7 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
no: C367/17
In
the matter between:
JEROME
LOUW Applicant
And
COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
S.
WRIGHT Second
Respondent
FIDELITY
ADT SECURITY
(PTY) Third
Respondent
Date
heard: 17 April 2019
Delivered:
7 May 2019
JUDGMENT
RABKIN-NAICKER, J
[1]
This is an opposed application to review an award under case number
WECT 4909-17. The second respondent
(the Commissioner) found that the
dismissal of the Applicant was substantively fair. There is also an
opposed application for condonation
before me for the late filing of
the opposing affidavit in this matter as well as an application for
condonation from the applicant
for the late filing of an “amended
supplementary affidavit”. The applicant has prosecuted the
review himself and the
Court is prepared to condone his
non-compliance with the Rules. However, the content of the “amended
supplementary affidavit”
is not relied on in this judgment. The
applicant’s non-compliance included his service of certain
pleadings on the employer
rather than its attorney of record. I gave
the attorney for the third respondent the opportunity to read these
papers before hearing
argument and there was no objection to
proceeding by either party. I deal with the third respondent’s
condonation application
below.
[2]
The applicant was dismissed on the 15 March 2016 from his job as a
Site Senior, after being found guilty
of the following charges:
“
Sleeping
on duty in that on the 27
th
January 2017 at approximately 00h50 you were found sleeping on duty
by your Area Manager (Michael Wheeler) and Regional Manager
(Mr Uys)
during a site visit at Cisco in Kuilsriver.
Dishonesty
in that on the 27
th
January 2017 at approximately 01h15 you were dishonest towards your
Area Manager (Michael Wheeler) and Regional Manager (Mr Uys)
when you
stated that you did not sleep on duty during the management site
visit at Cisko in Kuilsriver”.
[3]
At the arbitration the applicant disputed the charges against him.
His position at his disciplinary
enquiry, arbitration and in
submission before Court was that it was unfair to dismiss him based
on video evidence submitted by
the employer which reflected a
different date than the date for which he was charged. It was common
cause that the applicant was
on duty on the night of 27 January 2017
but the video footage did not reflect that date.
[4]
In her summary of applicant’s evidence, the Commissioner
inter
alia
recorded as follows:
“
He
confirmed that the video footage shown by the respondent at these
proceedings was the same as his video footage (minus the second
clip)
that he submitted (to the Commissioner) with date differences. He
acknowledged that it was footage of himself sitting in
the guard
house during the night at CISCO, but denied that his feet were on the
table but on a crate. He estimated the clip to
be about three
minutes. The video had been taken by another at a short distance from
himself (two steps) while the (guard house)
door was open, which he
had not been aware of.
He had
objected to the video footage being introduced at his hearing as it
did not stipulate the date of the incident as alleged.
The date
showed 3 March 2017. As reflected in the disciplinary minute he had
defended himself where the video was allowed to be
introduced in the
disciplinary inquiry by stating that his one eye had been closed due
to pain from his sinus condition.”
[5]
In his written submissions before Court, the Applicant emphasized the
discrepancy of the date in the
video footage again. He stated that
video footage of the wrong dates was shown to his witness at the
arbitration in order to discredit
him. He further alleges that the
Commissioner was biased and recorded the facts incorrectly. Another
basis for the review is that
the Commissioner took into account
hearsay evidence by the chairperson of the disciplinary enquiry as
the managers who took the
video were not present at the arbitration.
It is this final ground for review that that deserves further
consideration in this
judgment.
[6]
The transcript of the arbitration proceedings reflects that applicant
challenged the Chairperson of
the disciplinary proceedings (Van
Dalen) on the basis that his evidence was hearsay. Mr Van Dalen
agreed that he was not present
when the video was taken of the
applicant allegedly sleeping on duty. He relied on what was presented
at the disciplinary hearing.
The transcribed record reads:
“
MR
LOUW
: So what you try to tell is now,
Mr Van Dalen, in this hearing you went after, you’re busy with
he said, he said, he says,
she says. So it’s all hearsay. You
didn’t see this thing. If I never see this thing, it is
hearsay. If I say he said
so, he said so; isn’t it hearsay in a
court of law?”
[7]
The Commissioner replied to this statement in a curious manner as
follows:
“
Commissioner
:
We’re not on (sic) a court of law; this is on a balance of
probability.” When applicant pressed the point that he
wanted
an answer to the question of whether Van Dalen’s evidence was
hearsay, Van Dalen stated that “It’s not
hearsay, it’s
in a statement..”
[8]
The following exchange between the applicant and the Commissioner
bears recording:
“
MR
LOUW:
He’s not answering the
question now.
COMMISSIONER:
But he may, he can answer it the way he deems fit. Equally I got this
video footage, and I got to determine based on all the evidence
which
is finally presented to me, whether I consider that video credible or
not. So on disciplinary issues, just for yourself Mr
Louw, everything
is based on a balance of probability. It’s not beyond
reasonable doubt, okay? There’s a very big difference
between a
court and the labour.”
[9]
The Commissioner does not deal with the issue of hearsay evidence in
her Award. She
does not reflect on the fact that no direct viva voce
evidence was given at the arbitration by Wheeler and Uys for the
employer.
An arbitration under the auspices of the CCMA is a hearing
de novo.
[1]
Sections 138(1) and
(2) of the LRA accord the commissioner a discretion to determine the
manner and form of proceedings. In terms
of s138(2), subject to the
discretion of the commissioner, a party may give evidence, call
witnesses and address concluding arguments
to the commissioner. In
County Fair Foods (Pty) Ltd v CCMA & others (1999) 20 ILJ
1701 (LAC);
[1999] 11 BLLR 1117
(LAC) at para 11, the following
appears:
'However,
the decision of the arbitrator as to the fairness or unfairness of
the employer's decisions is not reached with reference
to the
evidential material that was before the employer at the time of its
decision but on the basis of all the evidential material
before the
arbitrator. To that extent the proceedings are a hearing de novo.'
[2]
[10]
The applicant specifically disputed the statement by Uys that was
before the disciplinary enquiry
when asked by the Commissioner
whether he agreed with its contents. The Commissioner however stated
the following in her award:
“
It
is common cause that the managers, Uys and Wheeler entered the CISCO
site, which is a steel manufacturer, in the early hours
of the
morning of 27 January 2017 by jumping over the fence/climbing over
the wall, as reflected in Uys’s statement. It was
confirmed by
Van Dalen that Uys’s statement was read out at the disciplinary
inquiry, which was not disputed by the applicant.
This statement and
its contents formed part of the evidence of Louw’s disciplinary
inquiry and gave an account of how Uys’s
and Wheeler entered
the premises and on finding Louw in the guard house asleep took video
footage thereof. The notes submitted
by Louw
[3]
further support the statements made about the video footage when
questioned about the footage”.
[11]
It is trite that Louw’s admission that the statement was read
out by Uys in the disciplinary
hearing is not an admission as to the
correctness of the content of that statement. As I recorded above,
Louw specifically disputed
its correctness.
[12]
The Court is keenly aware that the proceedings before then CCMA are
not court proceedings. However,
in this matter when presented with
the submission that the evidence of the employer as to the charges
against applicant was hearsay,
the Commissioner appeared ill equipped
to deal with the issue. In addition, she referred to the
‘credibility’ of the
video footage rather than dealing
with its admissibility and relevance and what weight should be given
to it.
[13]
I align my approach in this review with that of Francis J when he
stated the following:
“
[13]
A commissioner has a discretion about how the arbitration should be
conducted. A commissioner may decide to adopt an
adversarial approach
or an inquisitorial approach. In an inquisitorial approach the
commissioner is in control of the process.
The commissioner plays a
more active role in the hearing, calling witnesses and interrogating
them to ascertain the truth. The
commissioner cannot abandon the
well-established rules of natural justice and must be careful to
guard against creating a suspicion
of bias. In this regard see Mutual
& Federal Insurance Co Ltd v CCMA & others
[1997] 12 BLLR
1610
(LC) at 1619-20 and County Fair Foods (Pty) Ltd v Theron NO &
others (2000) 21 ILJ 2649 (LC).
[14]
Where the commissioner adopts the adversarial approach his role is
much limited. The process is in the control of the parties.
The
evidence adduced is that which the parties choose to present and the
commissioner operates more like an umpire. The commissioner
must
manage the process and ensure that the laws of evidence are complied
with. The commissioner can intervene where irrelevant
questions are
asked, hearsay evidence has been led or where the parties are not
dealing with the issues that need to be decided.
The commissioner
must make rulings on objections raised etc. The commissioner must
stamp his or her authority in the hearing and
must be guided by s
138(2) of the Act.”
[4]
[14]
In the Court’s view the Commissioner was not equipped to make
sure that the law of evidence
was complied with in the arbitration
proceedings nor to apply it in her award. In the circumstances of
this matter, given the failure
to deal with hearsay evidence
appropriately, and to reflect her awareness of the onus of proof in
her evaluation of the evidence
before her, the Commissioner committed
a gross irregularity rendering the Award susceptible to review. In a
situation in which
evidence has not been correctly tested and
weighed, it is not possible for a review Court to find that despite
the gross irregularity,
the outcome of the award was a reasonable
result. The process that would be undertaken to do this would blur
the distinction between
a review and an appeal.
[15]
The third respondent sought condonation for answering papers that
were 13 months late. Its principal
submission in this regard was to
the effect that its prospects of success in the review were
excellent. This has not proved to
be the case and my order below
shall reflect this.
[16]
In the premises, I make the following order:
Order
:
1.
Condonation for the late filing of the
answering papers is refused.
2.
The award under case number WECT: 4909-17
is reviewed and set aside.
3.
The dispute is remitted to the first
respondent for re-hearing before a Commissioner other than second
respondent.
_________________
H. Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant: In person
Third
Respondent: Crafford Attorneys
[1]
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
2008 (2)
SA 24
(CC); (2007) 28 ILJ 2405 (CC) para 8.
[2]
Footnote
9 to Sidumo paragraph 8 supra.
[3]
i.e.
his notes at the disciplinary
[4]
Vodacom
Service Provider Co (Pty) Ltd v Phala NO & others (2007) 28 ILJ
1335 (LC)