IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case no. 2372/98
In the matter between:
Applicant
And
1st Respondent
2nd Respondent
Commission for Conciliation
3rd Respondent
JUDGMENT
MLAMBO J.
4. This is an application for review of an award of the Commission for Conciliation
Mediation and Arbitration (“The Commission”). The second respondent
(“Makhanya”) was dismissed by the applicant on 12 September 1997 for misconduct.
He was dismissed pursuant to attending a disciplinary enquiry in which he was found
guilty of assaulting a fellow employee (“Tshikedi”) and for unauthorised absence
from work.
5. Makhanya referred the dispute for arbitration after conciliation failed to resolve it.
The first respondent (“Mothuloe”) was appointed in terms of section 136 to resolve
the dispute through arbitration. Mothuloe found that Makhanya’s dismissal was
unfair and awarded him twelve months compensation. In awarding Makhanya
compensation, Mothuloe ordered that the compensation be calculated not at
Makhanya’s rate off 988 00 per month, but at the rate of R 2000.00 per month which
was apparently earned by Makhanya’s coworker who, allegedly earned so much
more than Makhanya, because he is white. Mothuloe also found the applicant’s
representative to have behaved in a contemptuous manner during the arbitration
proceedings, and for that reason ordered the applicant to pay the Commission an
administration fee of R 4000, 00 i.e. for the four days on which the arbitration
proceedings were held.
6. The applicant seeks to review and set aside the entire award on a number of bases.
These are set out in the heads of argument filed on behalf of the applicant. For
completeness sake I set out the grounds of review hereunder. It is alleged that:
“The first respondent
3.1 failed to consider the contradicting evidence, which the second respondent
gave at the disciplinary inquiry in relation to the evidence, which he
produced at the arbitration hearing;
3.2 failed to consider the effect of the evidence which the second respondent
sought to produce through the evidence of Clive who was called to the
disciplinary inquiry in support of the second respondent’s allegation, that he
never had a knife on him and that it was in actual fact William who produced
a knife to attack him;
3.3 completely ignored and failed to make a finding concerning the second
charge which the applicant had brought against the second respondent for
purposes of considering whether the second respondent’s dismissal by the
applicant had been substantively fair or not, and in so doing acted
unreasonably and committed a gross irregularity;
3.4 completely ignored and failed to consider the effect which the second
respondent’s absconding from work from 15 July 1997 until 11 September
1997 should have had on a finding that the second respondent be
compensated for his loss of earnings over a period of twelve months and in so
doing acted unreasonably and committed a gross irregularity;
3.5 incorrectly found that the second respondent’s white counterpart had earned
a salary of R 2000.00 per moth purely for the reason that he was white or that
the applicant had paid him such a salary because of the applicant’s
motivation and intention to discriminate against the second respondent on
racial grounds. It is submitted that the first respondent acted outside the
scope of his powers in finding that he had the power to compensate the
second respondent based on a remuneration package, which the second
respondent did not earn at the time of his dismissal. The compensation
awarded to the second respondent exceeded the limit of compensation as laid
down by the provisions of section 194 of the Act. For this reason alone, it is
submitted that his decision is defective and should be reviewed and set aside.
3.6 acted improperly and committed a grossirregularity by excluding and failing
to consider the evidence presented by Ms Flett (who chaired the disciplinary
inquiry held on 12 September 1997) at the arbitration hearing. It is
submitted that the first respondent was blinded by the irrelevant provisions
of section 187 of the Criminal Procedure Act, 57 of 1977, in arriving at this
particular decision.
3.7 failed to take into account relevant considerations and to apply his mind and
in so doing arrived at a decision, which was grossly unreasonable, that Ms
Flett had acted improperly or unfairly in chairing and conducting the
Flett had acted improperly or unfairly in chairing and conducting the
disciplinary inquiry;
3.8 unjustifiably concluded that the evidence of the witnesses who testified on
behalf of the applicant left “much to be desired.”
3.9 committed a gross irregularity and exceeded his jurisdiction to order that the
applicant pay to the third respondent an administration fee of R 1000.00 per
day for a period of four days.”
7. In effect the applicant’s grounds are that Mothuloe committed a gross irregularity in
relation to the conduct of the proceedings before him. His award is also challenged on
the basis that he exceeded his powers in ordering the applicant to pay Makhanya
compensation calculated at a rate higher than his own rate, and in ordering the
applicant to pay the CCMA an administration fee.
8. It is now trite that an award of a commissioner, being administrative action must be
justified in relation to the reasons given for it. See Carephone (Pty)Ltd v Marcus
(1998) 19 ILJ (LAC). In other words the award must be capable of substantive
justification.
9. The applicant’s attack on Mothuloe regarding the conduct of the arbitration
proceedings is in essence that he failed to consider and/or ignored the true nature of
the evidence before him. It was submitted that Mothuloe failed to consider the
contradicting evidence which Makhanya gave at the internal disciplinary enquiry and
the evidence he produced at the arbitration hearing. It is not clear from the founding
affidavit in what respects it is alleged that Makhanya produced contradicting versions
at the disciplinary enquiry and during the arbitration hearing. In the absence of any
indication in what respect it is alleged Makhanya contradicted himself this court
cannot entertain this ground. It is simply not the duty of this court to analyse the
evidence led at the disciplinary enquiry and at the arbitration hearing. Parties must
pinpoint what according to them, is reviewable and make submissions. It is simply
not acceptable to make bald allegations which are in themselves not helpful.
10. The award is further attacked on the basis that Mothuloe failed to consider the effect
of the evidence which Makhanya sought to produce through the evidence of Clive,
who testified during the disciplinary enquiry (and not at the arbitration hearing), to
support Makhanya’s version that he never had a knife on him but it was Tshikedi who
produced a knife. In regard to this ground the applicant has also failed to indicate in
what respects was Mothuloe remiss. What is clear is that Clive’s evidence during the
disciplinary enquiry in a way supported Makhanya. In the absence of any indication
how Mothuloe misdirected himself this line of attack can also not be upheld.
11. Issue is also taken with Mothuloe for his alleged failure to consider the second charge
on which Makhanya was also found guilty. This is the charge relating to the
abscondment from work from 15 July 1997 to 11 September 1997. It is not correct
that Mothuloe did not consider this aspect. Mothuloe mentioned that both parties did
not place enormous importance on this charge. It appears that Makhanya mentioned
in passing that there was no merit to this charge. Mothuloe also records in the award
that Makhanya was “suspended” from work during the period of the alleged
abscondment. He also records that a number of things occurred during this period
such as conciliation by the Commission. There is no doubt in my mind that
Mothuloe regarded the assault charge as the more important of the two as far as
Makhanya’s dismissal was concerned.
12. It is important therefore to consider the effect of Mothuloe’s failure to make a finding
regarding the second charge. It appears that during the first enquiry on 15 July 1997
Makhanya walked out due to disagreement with the chairman of that enquiry, Mr Fred
Smith. Makhanya then referred a dispute to the Commission alleging that he was
unfairly dismissed. The Commission enrolled the dispute for conciliation on 10
September 1997. The parties “resolved” that dispute by means of an agreement to the
effect that Makhanya would be “reinstated” but would be placed on suspension
pending another disciplinary enquiry on such charges as the applicant deemed fit.
That enquiry took place on 12 September 1997 when Makhanya was dismissed.
13. Whilst no evidence relating to the abscondment charge was led before Mothuloe same
was led at the disciplinary enquiry. Mothuloe was handed the transcripts of the
disciplinary enquiry. In view of the fact that the dispute which Mothuloe was
arbitrating included the abscondment charge Mothuloe was therefore duty bound to
make a finding about it. Does his failure to consider the abscondment change and
make a finding about it amount to a defect within the meaning of section 145?
14. Section 145 as interpreted by the Labour Appeal Court in Carephone imports a
measure of a certain degree rationality or soundness in the outcome. It is not possible
to determine the rationality of the award relating to this aspect in the absence of a
direct finding about the abscondment conviction. In my view the failure to consider
and make a finding on the second charge prevented the applicants’s case from being
fairly determined. That means in my view that Mothuloe committed an irregularity
warranting interference by this Court.
15. Criticism is also levelled at Mothuloe for his findings on the dual role played by Ms
Flett as a “prosecutor” and “chairman” in Makhanya’s disciplinary hearing. It is
apparent that Mothuloe went to great lengths to analyse the transcripts of the
disciplinary enquiry. The role of the court in this matter is to determine if the finding
is justifiable on the reasons given for it. In other words is the finding capable of
substantive justification. A careful study of the award reveals that it is so much the
fact that Flett played a dual role that disqualified her evidence but it is the fact that
Mothuloe found it unacceptable that she sat and heard all the evidence during the
arbitration and then testified against Makhanya. In my view the finding against Ms
Flett’s “dual” role was carefully considered by Mothuloe. I can find no reason to
interfere with it. It is also my view that indeed Ms Flett behaved as “prosecutor” and
“magistrate” in a sense which deprived Makhanya of a fair hearing.
16. Mothuloe awarded Makhanya twelve months compensation based on a monthly salary
of R 2000.00. This decision was based on evidence by Makhanya that a white co
worker who performed the same work as him earned R 2000.00 per month whilst
Makhanya earned R 988.00. Mothuloe found that this amounted to racial segregation.
Whilst that may be so it is equally correct that Mothuloe was not appointed to
consider a racial segregation dispute but an unfair dismissal one which had nothing to
do with racial segregation. Clearly Mothuloe exceeded his powers within the
meaning of section 145.
17. Another source of criticism of the award is Mothuloe’s order that the applicant pay an
administration fee of R 4000.00. This order was made in terms of section 140(2)
which authorises such decisions by commissioners particularly in instances where a
dismissal is found to be procedurally unfair. Mothuloe’s decision appears to have
been influenced by the conduct of the applicant’s representative, Mr Smith, which
apparently lengthened the number of days on which the arbitration was held. I am not
persuaded that this decision is irregular justifying interference by this court. The
applicant has also failed to demonstrate in what way is the decision reviewable.
18. In the final analysis it is so that Mothuloe committed reviewable irregularities in
regard to:
15.1 His failure to consider and make a finding on the abscondment charge.
15.2 His decision that the applicant pay Makhanya compensation at the rate of
R2000.00 per month. Other than these defects the award is appropriate
and I have detected no other irregularity justifying interference b this court. It is
proper therefore to correct those aspects set out above and let the award stand.
19. Having considered all the facts surrounding the abscondment conviction it is my view
that it was unfair to charge Makhanya with that offence in the first place. It is clear
that Makhanya walked out of the disciplinary enquiry and went straight to the
Commission to refer a dispute about an alleged unfair dismissal. The applicant was
aware of the referral and indeed the agreement reached at the conciliation of that
dispute is crucial. In terms of the agreement Makhanya was regarded as having been
on suspension from the day he walked out of the enquiry which is 15 July 1997 to the
date of the enquiry which is 11 September 1997. In my view this agreement rendered
unfair any charge of abscondment during the same period as for all intents and
purposes Makhanya was on suspension. There was therefore no merit in the charge of
abscondment and any conviction based thereon cannot stand. The fact that the
agreement provided that the applicant could proffer any charge it deemed fit cannot be
interpreted to mean that it was open to charge Makhanya with that charge. That
charge simply went against the agreement itself.
20. It is also clear that Mothuloe could not order compensation on a rate of pay different
to that earned by Makhanya based on considerations of racial discrimination.
Compensation should be based on Makhanya’s rate of pay at the time of the dismissal
i.e R 988, 00 per month.
21. It now remains for me to consider the referral for contempt of the Commission by
applicant’s representative. A reading of the award on this aspect gives the impression
that Mothuloe has already found Smith to have been in contempt. To the extent that
this may be so his findings are set aside as he is not empowered to do so. See Colyer
v Essack N O & others , Malan v CCMA & another (1997) 9 BLLR 11173 (LC).
I will consider the matter as a referral within the meaning of section 142(9).
22. In my view the referral by Mothuloe in terms of section 142 (9) is proper. The
applicant and/or Smith were entitled to make representations regarding Mothuloe’s
allegations in that regard. No such representations were made. The applicant has
contented itself with an application to review the award on certain specified grounds.
There is no challenge relating to the contempt allegation and referral. It appears
therefore that the applicant and Smith take no issue with that aspect of the award.
23.
24. The referral for contempt is based on a number of incidents that occurred during the
arbitration and the manner in which Smith conducted himself. For completeness’
sake I recount hereunder such conduct and occurrences as recorded in the award:
“The representative of the respondent, Mr Smith, of the employers’
organisation by the name of ASAMBO mentioned above, conducted himself
in a manner to say the least, which was grossly ungentlemanly. This is borne
out by the following incidents that occurred during the arbitration:
. Admittedly Mr Smith has an enormously limited understanding of English,
particularly when he gets emotional, which happened quite frequently. The
consequence of this is that on many occasions Mr Smith attributed certain
words and meanings to the applicant under crossexamination, which the
applicant had not mentioned at all.
. The applicant first did not complain, but later complained and complained
bitterly about this particular crossexamination on the transcript of the
disciplinary hearing. When I spoke to Mr Smith about this matter, his view
disciplinary hearing. When I spoke to Mr Smith about this matter, his view
was that I had taken sides with the applicant and the respondent feels
“abused” by this conduct on my part. I sincerely hope that this was not the
word that Mr Smith intended for if it is it can only make his case worse.
. On many occasions I imposed on the applicant to answer Mr Smith’s
questions, delivering to the applicant the meaning of Mr Smith’s questions, as
I have perceived it. Ten out of ten times he agreed with me that I have
delivered his meaning correctly, but late he turned against me and said I hae
mentioned that I am biased and he feels abused.
. Mr Smith submitted to me a record of the disciplinary hearing, which he
knew not to be correct at the time that he submitted it nd without first
disclosing that the transcript has defects. I made it clear to him that this
conduct is unacceptable. He did not even apologise for it.
. On at least two occasions Mr Smith put a false version to the applicant under
crossexamination, which version he never pursued in his evidence in chief or
anywhere else during the arbitration. For example, when crossexamining
the applicant on the reason why the Department of Labour had rejected his
identity document, the applicant said it was because it was a Bophuthatswana
identity document and Mr Smith in turn replied and said “no, your identity
document was rejected because it was forged.” Never again did Mr Smith
follow up this version as I have mentioned. When he put it to the applicant
that Mr Nick Smith did not give the applicant an option to resign or be fired,
but instead said to the applicant “Did you give it a thought to resign?” It is
undesirable in the extreme that a crossexaminer of a witness should
knowingly put to the witness a version which he knows not to be true, which
version either conflicts with the evidence in chief which the third (sic) cross
examiner is going to lead or has led during the hearing, or is not going to be
examiner is going to lead or has led during the hearing, or is not going to be
led in evidence in chief at all by the third crossexaminer. This rule is no
formulation of mine, but a tried rule of practice in crossexamination.
. Mr Smith introduced the transcript of the disciplinary hearing at a rather
discomforting time while after the applicant had been under cross
examination for a while. The applicant himself complained about this in that
it prejudiced him. Such a (sic) conduct lends itself to the impression that Mr
Smith intended to catch the witness out.
The following conduct on the part of Smith in my view breached the
provisions of the Labour Relations Act (Act 66 of 1995):
. On the last day of the hearing, both parties agreed with the commissioner
that we would adjourn for an hour and a half or so and resume at 18:45 to
take closing arguments. Indeed 19:00 we reconvened for closing arguments.
The applicant commenced. At 19:45 or 19:48, Mr Smith suddenly exploded
refusing to be present at the CCMA and said the following:
“I am not staying in this building later than 20:00. You can make your
judgment with or without my argument.”
This comment he made in a very loud and aggressive voice. By this conduct
Mr Smith breached the provisions of section 138(10)(b) read with section
142(8)(g) and (c) in that by these utterances he belittled a commissioner.
. Mr Smith contravened the provisions of section 142(8)(g) in that he
improperly anticipated the commissioner’s award by saying about the
applicant “...who is blatantly lying in these proceedings... wasting our time
for three days now because he is so guilty you can see it in his face:.”
On the basis of the aforementioned sub paragraphs, I hold Mr Smith in
contempt of the Commission and will refer this matter to the Labour Court
in terms of the Act in such circumstances.”
25. Whilst an impression may be gained that overall Smith’s conduct bordered on
contempt a careful scrutiny of the overall conduct does not amount to contempt.
However, I find Smith’s conduct on the last day of the arbitration to be contemptuous.
Indeed by his utterances he belittled Mothuloe. Such conduct is unacceptable. It
appears justified therefore that an appropriate order be issued to discourage any
further conduct of a similar kind.
26. Under the circumstances I make the following order:
27. The application for review is dismissed.
28. The award is corrected to the effect that the applicant must pay second respondent
(Makhanya) compensation for 12 months calculated at R 988,00 per month. This
(Makhanya) compensation for 12 months calculated at R 988,00 per month. This
amount must be paid within 10 days of this order.
3. Mr Erhard Smith is found to have been in contempt of the first respondent
(Mothuloe).
29. Mr Erhard Smith is ordered to direct an unconditional written apology to the first
respondent within 10 days of this order.
30. There is no order as to costs.
MLAMBO J
Date of judgment 19 March 1999.
For the applicant: Mr Sher of Eric Louw Attorneys.