IN THE LABOUR COURT OF SOUTH AFRICA HELD AT
JOHANNESBURG CASE NUMBER J891/98
In the matter between
Cycad Construction (Pty) Ltd Applicant
and The Commission for Conciliation, Mediation and Arbitration 1 st Respondent
Seedat NO 2 nd Respondent
B C Dlamini 3 rd Respondent
JUDGMENT
de VILLIERS A J
1. This is the combination of an application in terms of s158(1)(c) by
the Third Respondent (Dlaimini) to have the arbitration award of the
Second Respondent (the Commissioner) dated 11 March 1998 made an
order of Court, and an application in terms of s145 of the Labour Relations
Act 66 of 1995 (the Act) for an order setting aside that award. The
applications have been consolidated in terms of Rule 23.
2. The only basis for the Applicant’s opposition to the award being
made an order of Court is its contention that the award falls to be set aside
on review. It was agreed that should this Court find that the award does not
fall to be reviewed and set aside then the opposition to the award being
made an order of Court falls away. It is therefore proper that the
determination of the review application be dealt with first.
3. The Applicant seeks to have the award set aside because the
arbitrator’s finding (that the dismissal of the Third Respondent (Dlaimini) by
the Applicant was unfair only because the dismissal was not effected in
accordance with a fair procedure) does not pass the test established by
the Labour Appeal Court in Carephone (Pty) Ltd v Marcus NO and
Others [1998] 11 BLLR 1093 (LAC), in that there is no rational objective
basis justifying the connection made by the Commissioner between the
material which was properly before him and the conclusion at which he
arrived.
4. The Applicant also contends that the Commissioner failed to apply
his mind to the provisions of Schedule 8 Item 4 of the Act, and rather relied
on outdated authority and principles applicable to procedural fairness in
making his decision.
5. Finally, the Applicant contends that the Commissioner exceeded his
powers, according to Applicant’s Heads of Argument, by entering into and
finding on a question which was not in dispute between the parties as
Dlamini denied that a disciplinary enquiry had taken place.
6. In the award the Commissioner bases his finding, that the dismissal
of Dlamini was not effected in accordance with a fair procedure, on the
following.
6.1. According to the testimony of a Mr Smith (Smith), the Applicant’s
finance and human resources director (as recorded by the Commissioner
in the award), Dlamini was given a good couple of hours to prepare for the
disciplinary enquiry. The Commissioner found this to be insufficient in view
of the fact that the offence was committed in KwaZulu Natal and the
hearing took place in Springs, Gauteng. The Commissioner relies on the
findings in Trauschweitzer v Robert Skok Welding (Pty) Ltd t/a Skok
Machine Tools (1991) 12 ILJ 1099 (IC) in coming to this conclusion.
6.2. Again, according to Smith’s testimony (in response to questions put
to him by the Commissioner as recorded by the Commissioner in his
to him by the Commissioner as recorded by the Commissioner in his
award), although there was an appeal mechanism in place, Smith (the
person who chaired the enquiry) failed to advise Dlamini of his right to
appeal. In this instance the Commissioner relied on the findings in MAWU
v Transvaal Pressed Nuts, Bolts and Rivets (Pty) Ltd (1988) 9 ILJ 129
(IC) in coming to this conclusion.
6.3. The third critical mistake, according to the Commissioner, was that
the evidence against Dlamini at the enquiry was submitted by way of a
written statement thus denying Dlamini an opportunity to question his
accuser. The Commissioner finds authority for coming to this conclusion in
Gounden v Amalgamated Beverage Industries Ltd (1990) 11 ILJ 800
(IC).
7. It is common cause that at the arbitration Dlamini denied that a
disciplinary hearing had taken place. His evidence was that, a few days
after his return from KwaZulu Natal (where he had been working) to the
Applicant’s head office in Springs, Smith gave him copies of the minutes of
the hearing, paid his wages and dismissed him.
8. The question that arises is whether the Commissioner, having found
this testimony to be untrue, could rely on the Applicant’s witness’s
evidence, some of which was adduced on questioning by the
Commissioner, to find procedural unfairness. Put another way, having
found that the evidence of Dlamini does not support a finding of procedural
unfairness, can the Commissioner still find procedural unfairness based on
the evidence of the Applicant’s witnesses?
9. In dismissal disputes, the onus to prove that the dismissal is fair
rests on the employer (s192(2) of the Act). In order to prove that the
dismissal is fair, the employer must adduce evidence which proves that
there was a fair reason for the dismissal and that the dismissal was
effected in accordance with a fair procedure (s188 of the Act).
10. In terms of s138(1) of the Act:
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. (my emphasis)
Thus, in determining dismissal disputes, s138(1) read with s188 and
s192(2) of the Act not only allows but compels a Commissioner to delve
s192(2) of the Act not only allows but compels a Commissioner to delve
into both the substantive and the procedural aspects of a dismissal since
at the end of the arbitration the Commissioner will have to determine both
the substantive and the procedural fairness of the dismissal. Thus, once
procedural fairness, for whatever reason, is placed in dispute (as it was in
this case), in order to determine the dispute fairly, a Commissioner is
entitled to canvass the various aspects of procedure with the employer’s
witnesses and rely on the testimony so adduced to determine whether the
dismissal was, in fact, effected in accordance with a fair procedure.
I therefore do not agree with the Applicant’s contention that the
Commissioner exceeded his powers by questioning and relying on the
evidence of Smith in coming to the conclusion that he did. I now turn to
the Applicant’s contention that the Commissioner’s finding of procedural
unfairness is not rational or justifiable as per the Carephone test.
The Labour Court in Carephone recognized that, in extending the
scope of review to encompass the constitutional provision that
administrative action must be justifiable in relation to the reasons given for
it, a requirement of rationality in the merit or outcome of the administrative
decision is introduced. However the Court also sounded a note of caution
by saying that the test did not allow for one adjudicator’s opinion of what is
justifiable to be substituted with that of another. At 1102IJ, Froneman DJP
said the following:
In determining whether administrative action is justifiable in terms of the reasons
given for it, value judgments will have to be made which will, almost inevitably,
involve the consideration of the
merits
of the matter in some way or another.
As long as the judge determining this issue is aware that he or she enters the
merits not in order to substitute his or her own opinion on the correctness
thereof, but to determine whether the outcome is rationally justifiable, the
process will be in order.
Opinions regarding what constitutes procedural fairness abound, both prior
to and after the coming into effect of the Act and the Code. Some
to and after the coming into effect of the Act and the Code. Some
adjudicators take a fairly strict approach, demanding that employers
adhere to what has become affectionately known as the Ten
Commandments of Bulbulia (a reference to the 10point test laid down by
that highly respected member of the industrial court in Mahlangu v CIM
Deltak, Gallant v CIM Deltak (1986) 7 ILJ 346 (IC) at 357 A F, still
regarded as the leading case on the general requirements for procedural
fairness by academic writers see, for example, Grogan Workplace Law
Fourth Edition at p.147 fn 129) in the belief that these requirements are
necessary to properly afford an employee an opportunity to state his or her
case as required by Item 4 of Schedule 7 of the Act Code of Good
Practice : Dismissals . Others (particularly those who gained experience
as arbitrators in the IMSSA (Independent Mediation Service of South
Africa) school tend to take a more flexible, robust and holistic view of the
issue.
Thus, what constitutes adequate notice will vary from case to case and, I
venture to add, from adjudicator to adjudicator. (See Cameron The Right
to a Hearing before Dismissal Part 1 [1986] 7 ILJ 183 at p. 200; Grogan
op.cit. at p. 147 and Miksch v Edgars Retail Trading (Pty) Ltd (1995) 16
ILJ 1575 (IC))
Some adjudicators may likewise deem an employer’s failure to advise an
employee of their right to an appeal to be unfair, even though the Code
does not specifically make mention of it, particularly where such
a procedure exists in the employer’s disciplinary code. (see Grogan op.cit
at p. 146)
The Applicant submitted that, in addition to the Code not establishing a
right to an appeal, the failure to advise Dlamini was also not procedurally
unfair because Smith was the highest authority in the enterprise from
whom there was no further appeal. The submission fails for two reasons.
Firstly, it would only be relevant if there was documentation before the
Court which establishes that this was the evidence before the
Commissioner. The Applicant relies on the Founding Affidavit of Smith in
this regard which merely states this as a fact and there is also nothing in
the Commissioner’s notes which suggests that this was adduced as
evidence in the arbitration. Secondly, even if this was the evidence before
the Commissioner, the Applicant, having provided for an appeal in its own
disciplinary code, would still have had to convene an appeal hearing, had
the Applicant so desired one, chaired, perhaps, by an independent
outsider. The fact that the most senior employee of an organisation chairs
the enquiry does not exempt an employer, who has chosen to afford
employees the right to appeal in its own disciplinary code, from convening
employees the right to appeal in its own disciplinary code, from convening
an appeal hearing. The purpose of an appeal is not to afford the most
senior employee an opportunity to make the final decision but rather, as
Cameron points out (in The Right to a Hearing Part 1 op.cit at p. 214) as:
an important safeguard, giving the affected employee a chance of persuading a
second tier of authority that the adverse decision was wrong or that it should
otherwise be reconsidered.
It would therefore be inappropriate for this Court to substitute its opinion for
that of the Commissioner’s in this case as far as the adequacy or otherwise
of the notice period given and the failure of Smith to advise Dlamini of his
right to appeal against the finding are concerned. Finding that the notice
period was inadequate and that the Applicant ought to have advised
Dlamini of his right to appeal, the Commissioner was justified in coming to
the conclusion that the dismissal was procedurally unfair.
Whether the Commissioner was justified in coming to the conclusion that
the dismissal was procedurally unfair because, in addition, Dlamini was not
afforded an opportunity to cross examine his accuser, Blankers, whose
evidence was submitted to the disciplinary enquiry by way of a statement,
may be another matter, bearing in mind that Dlamini admitted the
misconduct and therefore, as the Applicant points out in its Heads of
Argument, no dispute of fact needed to be resolved and no credibility
finding was necessary.
It has long been established that an employer is not expected to run a
disciplinary enquiry with the same rigour as a formal court hearing and
therefore the Commissioner’s finding that the dismissal was procedurally
unfair with regard to the Applicant’s failure to call Blankers to give oral
evidence may be irrational and not justifiable.
Were this the only ground on which the Commissioner relied to find that
the dismissal was procedurally unfair, the award may well have failed the
Carephone test. However, in view of my findings that the Commissioner
was justified in finding that the dismissal was procedurally unfair for the
other reasons given, it is not necessary to make a definitive finding
regarding this particular alleged procedural irregularity.
Finally, the Applicant’s representative argued that on all three issues, in
order to establish whether the finding was justifiable, the Court must ask
order to establish whether the finding was justifiable, the Court must ask
what purpose would have been served by allowing Dlamini more time to
prepare, advising him of his right to appeal and allowing him to cross
examine Blankers particularly in the circumstances of this case where
Dlamini did not raise these issues. In other words, what difference would it
have made had these rights been afforded him.
The right of adequate notice, the right to be advised of what recourse the
employer has made available to you once a decision has been taken to
terminate your contract of employment (described as the equivalent of a
death sentence) and the right to face your accuser in a disciplinary enquiry
have value in and of themselves to ensure social justice and the
maintenance of industrial peace. When an employer is found to have
infringed these rights, a finding that the dismissal was not effected in
accordance with a fair procedure is rational and justifiable irrespective of
whether the employer’s adherence to proper procedure would have made
a difference to the final outcome.
As Brassey points out (in Employment Law Vol 10 No 5 112 Another gulp
for the ulp ):
Underlying the insistence on due process is a concern for sound decisionmaking.
Requiring the employer to hear both sides of the story limits the harm that a
wrong decision can cause, some of which may be quite beyond the remedial
power of the court, and reduces the social cost that flows from unnecessary
recourse to third party intervention. Also important is the value latent in the
process itself; hearing others before acting against them is a mark of respect
for their worth as people, for it impliedly conveys the notion that care is
required in the determination of their fate and value is attached to the views
they may wish to express on that question.
The Applicant’s application to have the Commissioner’s award set aside is
therefore dismissed with costs, including the wasted costs occasioned by
the postponement of these proceedings on 26 February 1999.
Turning now to the Respondent’s application in terms of section 158 (1)
(c), it would be improper for the Court to make an award an order of Court
when the award clearly flies in the face of express provisions of the Act
and a decision of the Labour Appeal Court and which is couched in terms
which make it impossible for a Writ of Execution to be issued and executed
by the Sheriff of this Court.
by the Sheriff of this Court.
The Labour Appeal Court has established in Johnson & Johnson (Pty)
Ltd v CWIU [1998] 12 BLLR 1209 (LAC) that where an arbitrator or an
adjudicator decides to award compensation because an employer did not
follow a fair procedure, he or she is bound to compute that compensation
strictly in accordance with the formula established in section 194 (1) of the
Act. Compensation awarded must be equal to the remuneration which the
employee would have been paid between the date of dismissal and the
last day of the hearing of the arbitration or adjudication nothing more,
nothing less@ ( Johnson and Johnson supra at paragraph 40).
In his award, the Commissioner orders the Applicant to pay Dlamini an
amount equal to five months’ remuneration. Ex facie the award, Dlamini
was dismissed on 24 September 1997. The arbitration, according to the
Affidavit of the Respondent, was held on the 27 February 1998. Dlamini
is thus entitled to an amount exactly equivalent to the remuneration he
would have received between 24 September 1997 and 27 February 1998.
In order to compute the amount the Commissioner was obliged to take
evidence as to how much Dlamini earned at the time of his dismissal and
to establish exactly how much he would have earned between 24
September 1997 and 27 February 1998 and to reflect that in the award in
monetary terms.
The Court can only assume that the failure of the award to reflect this
exact amount in money terms is an error on the part of the Commissioner.
It is therefore appropriate to postpone the Respondent’s application to
have the award made an order of Court to enable the Respondent, on
notice to the Applicant, to apply to the Commissioner to have the award
varied in terms of section 144 (b) of the Act. Once the award has been
varied to accurately reflect the amount of compensation (in money terms)
due to Dlamini, the Respondent can approach the Court, with the varied
award, to have the application set down for hearing.
I therefore make the following order.
The Application to have the Commissioner’s award set aside is
therefore dismissed with costs, including the wasted costs
occasioned by the postponement of these proceedings on 26
February 1999.
The application to have the award made an order of court is
postponed sine die pending the outcome of the Third
Respondent’s application to the Commissioner to have the
award varied in terms of section 144 (b) of the Labour
Relations Act.
I de VILLIERS A J Acting Judge of the Labour Court
Date of Hearing : 23 April 1999
Date of judgment : 11 June 1999
For the Applicant : Advocate P J Jooste
instructed by Nicholetts Attorneys
For the Third Respondent : Attorney S J Haskins