IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. J3020/98
In the matter between:
DAIRYBELLE (PTY) LTD Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
MR E R MAFOLO Second Respondent
DANIEL CASPARUS FREDERIK HENDRIK
DE BRUYN Third Respondent
JUDGMENT
MARCUS AJ:
INTRODUCTION:
1. On 1 August 1996, Mr Daniel de Bruyn ("the employee")
commenced employment as a production supervisor for
Dairybelle (Pty) Ltd ("the company"). In February 1998
the employee was charged with various counts of
misconduct. A disciplinary hearing was convened and he
was found guilty on the following charges:
Charge 1: Misappropriation of company funds relating to
the use of company labour for personal gain.
Charge 2: Unauthorised possession of company property
relating to certain product ingredients ...
Charge 3: Breach of confidentiality relating to the
unauthorised manufacturing of processed cheese as well as
the unauthorised use of company confidential information.
Charge 4: Breach of confidentiality for personal gain.
The employee was dismissed by the company. An internal
appeal was unsuccessful.
2. Aggrieved by his dismissal, the employee invoked the
mechanisms created by the Labour Relations Act 66 of 1995
("the Act"). The matter came before the second
respondent ("the Commissioner") for purposes of
arbitration. The Commissioner delivered the following
award which I propose to quote verbatim:
"1. Details of hearing and representation:
Mr E R Mafolo CCMA Commissioner, Mr D H de Bruyn
employee, Mr C J van Rooyen NETU, Mr de Neef employer
representative, Mr Dolamo employer representative.
2. Issue to be decided:
I am asked to determine if the dismissal of the employee
was effected for a fair reason and in accordance with a
fair procedure and in the circumstances what remedy to
dispense with.
3. Background to the issue:
The following facts are common cause to the parties:
3.1 The employee started working in May 1995 as learner
cheese maker.
3.2 The employee was the assistant to Mr Peens.
3.3 Cheesemaking utensils were found at Mr de Bruyn's
house.
3.4 An employee of the company had made burglar bars for
Mr de Bruyn.
3.5 An anonymous letter had landed in the employer's
hands alleging theft of the employer's commodities.
4. Survey of evidence and argument:
4.1 Substantive fairness:
The employee has challenged the substantive fairness of
his dismissal on the basis that he did not commit the
alleged offences and that nothing had been found in his
possession. The employee admits that he had the burglar
bars fitted at his house by Alfred Phokwane, an employee
of the company, during his spare time. Further the
employee concurs in that left overs of cheese were for
everybody and that he had utensils at his house which he
used for his experiments for manufacturing cheese. These
were of a very small capacity to can be able to
manufacture cheese as it is alleged. This was
corroborated by the employer's witnesses who were honest
and agreed these were of a small scale operation and did
not find any products from the employee's evidence as
highly probable as opposed to the employer's allegation.
There is no evidence to support the employer's allegation
of theft save for the hearsay in the form of the
anonymous letter alleging theft and sent to the employer.
The employee's version is highly probable in that farmers
and other people from the public would pick the left
overs up as nothing was ever found in his possession.
Evidence at my disposal show clearly that Alfred Phokwane
was instructed by a certain Myles to do burglar bars for
the employee. The employee had proceeded to install them
at his house. The last issue to deal with was whether
the dismissal of the employee is an appropriate sanction
for the alleged misconduct or not. In addressing this
question I need to think about whether the employer acted
fairly in dismissing the employee under the
circumstances. The employer argues that the employee's
actions have irreparably damaged the trust relationship
between the employer and the employee. I do not agree.
The employer had exaggerated this misunderstanding with
the employee. In fact, at the initial hearing a lot of
charges against the employee were dismissed and he was
found not guilty.
4.2 Procedural fairness:
I am unable to find fault with the procedure followed by
the employer in dismissing the employee. I accept that
nothing was omitted that may have prejudiced the
employee.
5. Award:
5.1 The employer is ordered to compensate the employee
an amount equivalent to six months salary calculated at
the rate of the employee's earning at the time of the
dismissal.
5.2 The employer to comply with section 195 of the Act.
5.3 The employer to comply with the terms of this award
within 14 days of receipt of this award."
3. The company seeks to have the Commissioner's award
reviewed and set aside. The Commissioner has filed the
record of the proceedings under review but does not
oppose the relief. There has been a last minute response
from the employee but no appearance by him or on his
behalf.
4. It is necessary for me to assess whether the grounds
of review are well founded. The company has raised a
number of complaints concerning the conduct of the
Commissioner and the reasoning underpinning the
award.
THE GROUNDS OF REVIEW:
5. I do not propose to deal with each and every
allegation levelled at the Commissioner. I deal only
with those which appear to be the more significant. In
paragraph 7.7 of the founding affidavit the following is
stated:
"At the commencement of the proceedings at approximately
09h00 the second respondent duly informed the parties
that he had been double booked and that he therefore
intended to finalise the arbitration proceedings by no
later than 12h00 on 3 August 1998. The second respondent
furthermore advised that he had to attend a funeral later
during the course of the afternoon of 3 August 1998. I
wish to draw the above Honourable Court's attention to
the fact that I already at that stage envisaged that
unless the proceedings were somewhat shortened and/or
executed in a hurried fashion, it would be not only
improbable but impossible to finalise the proceedings
based upon the evidence that had to be heard during the
course of the proceedings."
6. As indicated above, there has been no answer from the
Commissioner. The employee, however, answers this
allegation in the following manner:
"Bo en behalwe dat die tweede respondent aangetoon het
dat hy slegs beskikbaar sal wees tot na 12:00 word die
balans bewerings ontken. Die applikant en/of applikant
se verteenwoordigers het op geen stadium aangedui dat
hulle baie getuies sal benodig en dat hulle benadeel sal
word vanwe ë die feit dat daar sogenaamd nie tyd
beskikbaar sou gewees het nie."
What is not denied, however, is the allegation that the
Commissioner stated that he was double booked. Nor is it
disputed that he intended to finalise the arbitration
proceedings by no later than 12h00. Nor is it disputed
that the reason for the haste was that the Commissioner
was required to attend a funeral later that afternoon.
7. The company states further in paragraph 7.8 of the
founding affidavit:
"The second respondent furthermore intimated that he
would attempt to have the matter resolved in an amicable
fashion and accordingly entered the arena as a mediator
cum conciliator. The second respondent laboured the
issue of possible settlement for approximately 45 minutes
before being satisfied that no settlement was
forthcoming. In accordance with the aforegoing I
therefore wish to highlight that the arbitration
proceedings only commenced at approximately 09h45 on 3
August 1998."
The employee answers this allegation as follows:
"Die tweede respondent en die applikant het inderdaad
gepoog om die saak te skik maar was dit nie suksesvol
nie. Die arbitrasie verhoor het eers ongeveer 09:45
begin. Die balans bewerings word ontken. Tweede
respondent was in elk geval geregtig om met die
toestemming van die partye, wat inderdaad gedoen is, die
arbitrasie verrigtinge op te skort en te poog om die
verskil deur versoening te besleg. Die applikant het nie
hierteen beswaar gemaak nie."
8. The employee misses the point of the allegation made
by the company. The intention behind the allegations
concerning the attempts at settlement is merely to
highlight that not only did the Commissioner place time
constraints on the duration of the arbitration, but that
the arbitration commenced late due to the attempts at
settlement. I do not understand the company as
suggesting any impropriety on the part of the
Commissioner in his endeavours to settle the dispute.
9. The company then states the following concerning the
manner in which the arbitration was conducted:
"7.13 I wish to draw the above Honourable Court's
attention to the following with specific reference to the
leading of the aforesaid evidence:
7.13.1 During the course of my leading the witness
during their examination in chief, the second respondent
on numerous occasions enquired as to whether the evidence
that I was leading is 'really necessary';
7.13.2 the second respondent questioned me on repeated
occasions as to whether the applicant intended calling
any more witnesses;
7.13.3 based on the aforegoing it was abundantly clear
to myself that the second respondent was in a hurry and
wanted to finalise the proceedings as quickly as
possible;
7.13.4 based upon the aforegoing undue pressure
exerted by the second respondent, I failed to inter alia
properly present a case and more pertinently want to
state the following:
7.13.4.1 I was not in a position to lead detailed
evidence pertaining to each and every of the witnesses
during my examination in chief.
7.13.4.2 The question of an appropriate and fair
sanction was left unattended and I accordingly did not
lead any specific evidence relating to the relationship
having become untenable as between the applicant and
third respondent.
7.13.4.3 I myself in the capacity as an appeal
chairperson did not give evidence.
7.13.4.4 Based upon the aforegoing I hoped that the
second respondent would thoroughly peruse the contents of
Annexure DB3 (the record of the proceedings of the
disciplinary enquiry) as it contains specific details
pertaining to the merits of each and every charge that
was levelled against the third respondent as well as
dealt with the question of the imposition of an
appropriate and fair sanction.
7.13.4.5 I confirm that subsequent to having finalised
the applicant's case the third respondent called a
witness, one Mrs Blom, and thereafter testified himself
in a similar vein to what I stated pertaining to my
examination in chief. I was not given a sufficient
opportunity to properly crossexamine, more particularly
the said Mrs Blom. It was abundantly clear to myself
that the second respondent at this stage of the
proceedings was in a great hurry to finalise the
proceedings.
7.13.4.6 After the third respondent had closed his case,
the second respondent immediately called for closing
arguments/ statements by the respective parties. I was
caught unawares and was completely unprepared to make
such a closing statement. Notwithstanding this the
second respondent expected me to make such statement
which I did in a gingerly and unprepared manner. I was
furthermore prevented by the second respondent from
responding and/or amplifying my already flimsy closing
argument when I wanted to respond to the third
respondent's argument. I distinctly recall that the
second respondent posed the question as to whether 'we
are not finished yet' at this specific point in time
during the course of proceedings."
10. I do not propose to deal with the employee's responses
to these paragraphs in detail. In the main they
constitute bare denials. Of importance, however, is that
the allegations raised by the company are directed to the
manner in which the Commissioner conducted the
proceedings and it is therefore primarily the task
of the Commissioner to respond to these allegations
should he so choose. What emerges from this account, in
my view, is that the company appears to have been placed
under considerable pressure to complete the arbitration
within the allotted time.
11. With regard to the contents of the award itself, I
will deal only with those allegations made by the company
which appear to be most significant. In paragraph 8.2 of
the founding affidavit the company states the following:
1. "In terms of paragraph 4.1 of Annexure DB2 (the
arbitration award) it would seem that the second
respondent deals with the body of evidence that was led
during the course of the arbitration proceedings as well
as findings with regard to the facts in dispute as well
as credibility issues. I wish to highlight that the ...
charge sheet .. deals specifically with separate and
distinct charges that were originally brought against the
third respondent. I have already alluded to the fact
that at the initial disciplinary stage the third
respondent was found not guilty of a certain number of
these charges."
12. I have indicated above the charges of which the
employee was found guilty. The company states further:
"The second respondent in no way whatsoever has
identified any of the aforesaid charges in terms of
clause 4.1. Nor does he identify those charges of which
he found the third respondent guilty. Indeed, the second
respondent does not disclose at all as to whether he
found the third respondent guilty of any charges
whatsoever."
The company also states:
"On further perusal of paragraph 4.1, one makes the
deduction that the second respondent must have found the
third respondent guilty of one or some of the charges as
the second respondent specifically states that the 'last
issue' that he has to deal with is whether dismissal was
'an appropriate sanction'. Based upon the aforegoing, as
well as the fact that the second respondent has failed to
identify the charges of which he found the third
respondent guilty, I respectfully submit that the second
respondent could not have made an objective or rational
finding pertaining to the merits of the matter, nor the
question as to whether the employment relationship has
been irreparably damaged."
13. Although the employee responds to some of these
allegations, the task of determining the meaning of the
arbitration award lies with this court. It is therefore
not necessary to deal with the employee's response.
14.The company also states that the Commissioner
improperly permitted the employee to be represented by a
union official but failed to inform the company's
representative that he could make an application for
legal representation in terms of the Act. As a result of
these allegations the company contends, inter alia, the
following:
"10.3 It is respectfully submitted that the following
grounds fall within the ambit of one or more of the
aforementioned defects:
10.3.1 The second respondent improperly and wrongly
exerted pressure on the applicant directly based upon the
fact that the second respondent was subject to certain
constraints of time and/or movement;
10.3.2 the second respondent wrongfully and/or on an
irregular basis failed to attempt to adhere to any pre
arbitration proceedings in order to deal with the facts
in dispute. This situation was exacerbated directly
based upon the fact that the applicant handed up a
lengthy bundle of documents at the commencement of the
arbitration proceedings;
10.3.3 the second respondent wrongfully allowed the
third respondent external representation;
10.3.4 the second respondent failed in his duty to
inform the applicants that it could obtain legal
representation;
10.3.5 the second respondent improperly pressurised
the applicant in presenting evidence at the arbitration
proceedings.
...
10.3.8 the second respondent failed to distinguish the
material facts in dispute in his award and did not apply
his mind objectively and rationally to those facts in
dispute."
REVIEW:
15. The standard of review is now settled by the
decision of the Labour Appeal Court in Carephone (Pty)
Ltd v Marcus NO and Others (1998) 19 ILJ 1425 (LAC). In
the present case the allegations of misconduct remain
unanswered by the Commissioner although the employee has
offered an explanation of sorts. In my view the evidence
presented demonstrates that the Commissioner failed to
conduct the proceedings fairly inasmuch as he sought to
pressurise the company into completing its case by reason
of selfimposed time constraints. I do not suggest that
a Commissioner must simply bow to the dictates of the
parties. On the contrary, a Commissioner must exercise
reasonable control over the proceedings. On what has
been alleged, the control exercised amounted to undue and
unfair pressure. Why the proceedings had to be completed
within the space of a few hours is not explained. No
explanation is furnished as to why the arbitration could
not have continued the next day or at some other
convenient time.
1.
16. As to the award itself, I have some difficulty in
comprehending what the Commissioner actually found.
There is merit in the complaint that there has not been
separate treatment of the individual charges and there is
also merit in the contention that the Commissioner
appears to have found some misconduct established. While
mindful of the fact that Commissioners are required only
to furnish "brief reasons" (see section 138(7)(a) of the
Act) this does not relieve the Commissioner of the
obligation to justify his or her decision. Brevity is a
question of degree. Much will depend on the nature and
complexity of the case. The furnishing of reasons for
arbitration awards underpins the accountability of
commissioners and serves to discipline the process of
reasoning. Dealing with this issue, Wade and Forsyth,
Administrative Law , (7th ed) state at 542:
"There is a strong case to be made for the giving of
reasons as an essential element of administrative
justice. The need for it has been sharply exposed by the
expanding law of judicial review now that so many
decisions are liable to be quashed or appealed against on
grounds of improper purpose, irrelevant consideration and
errors of
law of various kinds. Unless the citizen can discover
the reasoning behind the decision, he may be unable to
tell whether it is reviewable or not and so he may be
deprived of the protection of the law. A right to
reasons is therefore an indispensable part of a sound
system of judicial review. Natural justice may provide
the best rubric for it since the giving of reasons is
required by the ordinary man's sense of justice. It is
also a healthy discipline for all who exercise power over
others."
The learned authors were, of course, dealing with the
position at common law. Both under the Act and under the
Constitution the furnishing of reasons is obligatory. The
Constitution permits scrutiny of these reasons to assess
the justifiability of the decision. Commissioners need
to be aware of the fact that however brief the reasons
may be, they must demonstrate "a rational objective basis
justifying the connection made by the administrative
decision maker between the material properly available to
him and the conclusion he or she eventually arrived at"
(Carephone ( supra) at 1435E).
17. A consideration of the Commissioner reasons makes it
impossible to ascertain precisely what misconduct was
found to have been proved and why the employee was
acquitted of other charges. The Commissioner's
discussion of the appropriate sanction suggests that he
found some misconduct to have been proved but the precise
nature of that misconduct is nowhere stated. Where, as
in the present case, there are several charges of
misconduct, each ought to be separately dealt with and
the arbitrator's analysis and conclusions in relation to
each count ought to be clearly set out. It is only in
this way that the arbitrator's reasoning and conclusions
will be comprehensible. In my view the standard of
justifiability has not been meet in the present matter.
18. I accordingly make the following order:
1.The arbitration award made by the second respondent on
or about 10 September 1998 is reviewed and set aside.
2.The matter is referred to the first respondent for a
fresh hearing by another commissioner appointed by the
Commission for Conciliation, Mediation and Arbitration.
_________________
MARCUS AJ
ACTING JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
SIGNED AND DATED THIS DAY OF JUNE 1999
DATE OF HEARING: 1 JUNE 1999
DATE OF JUDGMENT: 1 JUNE 1999
For the applicant: Mr C Van Zyl of VAN ZYL’S INC
For the respondent: No appearance