IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO: D231/98
In the matter between
MONDI KRAFT (PTY) LIMITED Applicant
and
PAPER, PRINTING, WOOD AND ALLIED First Respondent
WORKERS UNION
COMMISSION FOR CONCILIATION, MEDIATION Second
Respondent
AND ARBITRATION
S J NGWENYA N.O. Third Respondent
ENOCK MWELASE Fourth Respondent
JUDGMENT
de VILLIERS A J
1. This is an application in terms of section 145 of the Labour Relations
Act of 1995 to have the award of the Third Respondent (“the Senior
Commissioner”) under Commission for Conciliation, Mediation and
Arbitration (“the CCMA”) Case Number KN9274 dated 19 February 1998
set aside.
2. In the award, the Senior Commissioner found that the dismissal of the
Fourth Respondent (“the employee”) by the Applicant was unfair and
reinstated him in his employment with the Applicant.
3. The application was opposed only by the First and Fourth
Respondents (“the Respondents”).
4. The Respondents and the Applicants failed to comply with time limits
imposed by the rules of this Court for the delivery of a Notice of Opposition
and Answering Affidavit and a Replying Affidavit respectively. At the
hearing, the parties agreed not to take issue with each other in this regard
and therefore the Court considered it expedient to condone the non
compliance in order to expedite the hearing of the application.
5. The essence of the Applicant’s case is that:
5.1. the Senior Commissioner’s findings relative to the procedural
fairness of the dismissal was not supported by evidence presented at the
arbitration and the finding itself is not justifiable or rational; and
5.1. the Senior Commissioner’s finding that the sanction of dismissal
was “harsh” is not supported by reasons in the award and is, in any event,
not justifiable or rational.
6. It is common cause that, despite the Applicant’s compliance with the
Rule, effective at the time when the application was launched, calling upon
the Commission and the Senior Commissioner to provide the written
record of the proceedings and to provide further reasons for the making of
the award, should they so wish, the Commission and the Senior
Commissioner have failed to do so.
7. The Respondent argued, inter alia , that because the decision whether
the award was justifiable or rational in terms of the test laid down by the
Labour Appeal Court in Carephone (Pty) Limited v Marcus N.O. and
others [1998] 11 BLLR 1093 LAC can only properly be made made on
the totality of evidence before an arbitrator, an application for review on
this basis is fatally defective where the entire record of the arbitration
proceedings is not placed before the reviewing court.
8. The court does not entirely accept this argument. The mere failure to
provide a verbatim record of the proceedings has not prevented this Court
from exercising its powers of review in terms of the provisions of section
145 in appropriate circumstances. As Landman J points out in County
Fair v CCMA & Others [1998] 6 BLLR 577 LC at 583B :
“…where there has been no mechanical transcribing of the proceedings, the
applicant in a review is obliged to reconstruct the record insofar as it may be
necessary to advance his or her case and to give the court of review a fair picture
of what transpired before the arbitrator …… .”
9. Where there is a conflict between the versions of the Applicant and
Respondent, the Court will prefer the version of the Respondent unless the
Senior Commissioner’s notes or his award are conclusive of the issue.
(County Fair supra at 583 CD)
10. There may well be instances where the Court is unable to make a
finding without a full record of the proceedings. But where a defect as
defined in section 145 is obvious from the award and the admitted facts
before it, and if, from the award and the admitted facts, the Court is
satisfied that it has before it all material evidence relative to a particular
point and is thus able to make a finding that there is no rational objective
basis justifying the connection made by the arbitrator between that
material and the conclusion he or she eventually arrived at on that point,
the Court is placed in a position to set aside the award despite the
absence of the entire record.
11. In this case the Senior Commissioner makes a finding that the
“procedural irregularity” occurred only in relation to the appeal hearing,
having found that the disciplinary enquiry was procedurally fair. It is clear
from the award and the admitted facts on the papers that this finding is
based only on the written report of the person who chaired the appeal
which was read into the record at the arbitration hearing because the
appeal chairperson was not available to give vive voce evidence at the
time.
12. The material section of the award reads as follows:
“The chairman of appeal turned down the appeal on the grounds that the
respondent has bent over backwards in accommodating the applicant. This is
what he had to say in his opening remarks.
‘In order for me to get a feeling of what direction I should take in this case I looked
at this man’s history. In fact, not only did I go back as far as his first warning
which I have on record, I went back earlier the year (sic) to find out whether this
man was going through a particularly bad time in his life, which may have resulted
in these instances or whether there was some other pattern’
He then goes further and catalogue (sic) a list of the applicant’s absence or late
notification of his absence.”
notification of his absence.”
13. From this, and this alone, the Senior Commissioner makes the
following factual findings:
13.1. “when the [employee] appeared before the appeal enquiry he
had not been apprised that he would be confronted with his whole past’;
13.2. “[H]e was thus taken by surprise;
13.3. “…when the [employee] appealed, he expected the chairman to
deal with the incident for which he was dismissed;
13.4. “the chairman on appeal was influenced by factors which were
not properly before him and of which the applicant did not have the
opportunity to contest”.
14. It is noteworthy that the Respondents, at paragraph 22 of their
Answering Affidavit, admit the contents of paragraph 29 of the Applicants
Founding Affidavit which includes an assertion by the Applicant that the
Senior Commissioner made these findings in the absence of evidence to
support them.
15. From this evidence, too, the Senior Commissioner imputes a sinister
motive to the appeal chairman’s enquiry into the employee’s prior record
when an ordinary reading of this passage and the report itself indicates
that the appeal chairman was trying to find a way to show leniency that
his motive for delving into the employee’s past was to establish whether
there were factors indicating that the employee’s current absences were
an aberration from previous behaviour – whether he was going through a
“bad time in his life” which could justify the absences for which he was
dismissed and hence give the appeal chairperson a reason for overturning
the decision taken at the disciplinary enquiry.
16. In the light of the aforegoing and in the absence of any response from
the Commission or the Senior Commissioner to the allegation that he
made material findings of fact in the absence of evidence, the Court can
only conclude that the Senior Commissioner’s findings listed above are not
only not rational or justified because there was no evidence to support
them but there is no rational connection between the wording of the report
and the conclusions reached by the Senior Commissioner that the appeal
was procedurally flawed. His finding that the chairman on appeal was
“influenced by factors which were not properly before him and of which the
applicant did not have the opportunity to contest” is particularly
unjustifiable since it is common cause that the employee was present at
the appeal and chose not to give evidence or participate therein.
17. In addition, his finding that “[T]he record of appeal shows incidents
which no doubt in my mind could have justified a harsher sanction” makes
no sense in circumstances such as this. What the Senior Commissioner
does not appear to appreciate is that the employee had already been
dismissed and there is no harsher sanction than that.
18. The Senior Commissioner also concludes that “the sanction was
harsh in the first instance” without giving any reasons in the award or
otherwise as to why he comes to this conclusion. Not only does section
138 (7) (a) of the Act compel the Senior Commissioner, at the very least,
to provide brief reasons for coming to this conclusion, but there is also a
constitutional imperative (section 23 (2) of the Constitution) requiring
written reasons to be furnished. The Senior Commissioner’s failure to do
so constitutes a gross irregularity.
19. For all these reasons, the award is set aside.
20. If an award is set aside, the Court is given a discretion in terms of
section 145 (4) either to determine the dispute in a manner it deems
appropriate or to make an order it considers appropriate about the
procedures to be followed to determine the dispute.
21. The Applicants have asked for the Court to substitute a finding that the
dismissal was fair.
22. If one accepts, as the Senior Commissioner does, that the disciplinary
enquiry was conducted in accordance with a fair procedure and, as the
Court does, that the Senior Commissioner’s finding with regard to the
procedural irregularities relative to the appeal hearing are not justifiable,
there is no reason why the Court should not substitute a finding that the
dismissal of the Fourth Respondent was procedurally fair.
23. However, the substitution of a finding relative to the fairness or
otherwise of the sanction is another matter.
24. While the Applicant has gone as far as it can to provide the Court with
a fair picture of the evidence presented at the arbitration, the failure by the
Senior Commissioner to provide written reasons for his bald assertion that
the sanction was “harsh in the first instance”, tacked on almost
gratuitously, cannot in and of itself, justify a mere reversal of the decision
reached where there are no reasons given for it in the absence of a full
record of the proceedings before the Court from which mitigating and
aggravating factors can be properly assessed.
25. Although the Court could attempt to make a decision based on the
award itself and the admitted facts on the papers, it is reluctant to do so as
there may be other factors which were before the Senior Commissioner
which could have had a bearing on this aspect. For example, the
employee’s length of service and the employee’s argument at the
arbitration that the charges relating to the offences committed on 29 March
and 1 April 1997 should have been treated as one, together with the fact
(as noted in the award) that the employee’s supervisor appeared easily
able to find a replacement for the employee on one of the days when he
was absent, may, in the opinion of the Senior Commissioner, have
constituted strong mitigating factors justifying his finding that the sanction
was “harsh”.
26. The mere substitution of one finding for another is not something which
can be appropriately determined on a selection of the evidence led at the
arbitration. In making a substitution, the Court must be certain that it has
all the material evidence which was before the arbitrator which may have
had a bearing on the issue is being called upon to determine. The failure
of the Senior Commissioner to include the reasons in his finding does not
necessarily mean that there were no reasons. The Court has no
alternative, therefore, but to refer the matter back for a hearing only as to
whether the sanction of dismissal is appropriate.
26.1 I therefore make the following order.
26.2. The award of the Third Respondent dated 19 February 1998
under case number KN 9274 is set aside.
26.3. The dismissal of the Fourth Respondent was procedurally fair.
26.4. The dispute is remitted back to the Second Respondent for
hearing by a commissioner other than the Third Respondent for a
determination only as to whether dismissal, in the circumstances of this
case, is an appropriate sanction and for an appropriate order in terms of
section 192 of the Act.
26.5. The First and Fourth Respondents are to pay the Applicant’s
costs jointly and severally, the one paying the other to be absolved.
. .
I de VILLIERS A J
Acting Judge of the Labour Court
Date of Hearing : 6 May 1999
Date of judgment : 14 June 1999
For the applicant : Advocate L C A Winchester
instructed by Shepstone & Wylie
For the First and Fourth : Advocate P Schumann
respondents instructed by Chennells, Albertyn and Tanner