IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
Case No: D343/98
In the matter between:
R J ARMSTRONG Applicant
and
BARBARA ANNE TEE First Respondent
CCMA Second Respondent
YUNUS SHAIK Third Respondent
JUDGMENT
JALI AJ
This is an application for a review in terms of section 145 and/or 158(1)(g) of
the Labour relations Act No 66 of 1995 (herein after referred to as "the Act").
The Applicant has moved an application to set aside an award of the Third
Respondent dated the 3rd of April 1998, under the CCMA case No KN8975.
The parties are Dr R J Armstrong ("the Applicant") and Barbara Anne Tee
("the First Respondent"), The Commission for Conciliation, Mediation and
Arbitration ("the Second Respondent"), Yunus Shaik ("the third Respondent").
The Respondents have not filed a notice to oppose this application for a
review. The court however is still obliged to decide whether or not the review
should succeed even though it is unopposed. The court is required to apply
its mind as to whether the award is reviewable in accordance with the
provisions of the Act.
The Applicant, a medical practitioner, employed by the First Respondent, with
effect from 1 June 1994, as an Administrative Assistant and later became a
Receptionist until her dismissal on 3 October 1997. The facts leading to her
dismissal are that on, Tuesday, 23 September 1997, on realising that she was
not well, went off to visit another doctor who examined her and thereafter
booked her off sick for a number of days. She did not tell the Applicant of the
fact that she had been booked off sick as, according to her, she didn't want to
disturb him, as he was busy with claim forms and she also did not want to
cause herself some stress. The 24th of September 1997 was a public
holiday. On the 25th of September 1997, she went to Johannesburg with her
family to attend a soccer tour until Sunday, 28 September 1997. She had
known about this soccer tour for about four to five months before the date of
departure. On 25 September 1997 at approximately 7h00 her husband
telephoned the Applicant to report that the First Respondent would not be
coming to work because she had “women’s illness” and she was resting. The
Applicant opens his surgery at 7h30. On 25 September 1997 the Applicant
had to close his practice as he could not arrange a replacement at such short
notice. Patients were referred to another practitioner. Later that evening the
Applicant learned, for the first time, that the First Respondent had gone on a
trip to Johannesburg with her family for the weekend. The following day, the
Applicant employed a computer consultant and two temporary employees, to
manage the reception and the computer. The First Respondent was absent
from 25 September 1997 to the 29 September 1997.
On 30 September 1997 the First Respondent reported for work. She produced
a medical certificate from a Dr Baijnath, which confirmed that she had been
booked off sick for the period 24TH of September 1997 to the 28TH of
September 1997. It was apparent that she had not reported for work on the
29TH of September 1997, even though her medical certificate did not cover
that particular day. The Applicant contacted Dr Baijnath, and their
conversation would be referred to later in my judgment. She was then
charged, firstly, for being absent from work without a valid reason and
secondly, dishonesty in that she lied about her absence from work being on
account of illness but in fact had gone away on a trip. It was alleged that this
impacted upon the trust relationship between an employer and employee.
On 2 October 1997 a disciplinary enquiry was held. It was chaired by, a
clinical psychologist, Mr Shaun Keegan. Mr Keegan recommended, amongst
others, that the First Respondent should resign and the the Applicant should
give the First Respondent one (1) month’s notice pay on her resignation. The
First Respondent subsequently was given the one (1) month notice pay
together with her leave pay. The matter was subsequently referred to the
Second Respondent, the CCMA, for conciliation and later arbitration before
the Third Respondent.
The Commissioner's findings, as set out in the arbitration award, are as
follows:
"In view of the medical certificate and the fact that the Applicant did not
challenge the fact that, indeed, Barbara Tee was unfit for work. I find that the
leave taken was justified. Notwithstanding the fact she was unfit for work,
she had a duty to inform her employer timeously of this fact. In my view, she
complied with the duty to give notice in that her husband informed the doctor
at 7.00am in the morning of the fact that she would not be attending work.
However, I have taken note of the fact that she absented herself without a
medical certificate on the 29TH of September 1997. I reject the contention
presented by the Applicant that the mere fact that Barbara Tee journeyed to
Johannesburg whilst she was on sick leave is proof of the fact that she was
not ill or she perpetrated a deception. In the circumstances, I find that
Barbara was dismissed for no good reason.
Accordingly, I make the following award.
AWARD
That Barbara Tee be paid a sum of R18 000,00, being the sum equivalent to
six months' pay, on or before the 3rd of April 1998."
The grounds for review, which were raised by the Applicant in respect of the
Third Respondent’s award, are the following:
(a)No reasonable arbitrator could have come to the conclusions which the Third
Respondent did. The First Respondent was absent without leave on the 29th
of September 1998, and a finding to that effect was made;
(b) The First Respondent had acted dishonestly. An arbitration held in an
acceptable and proper form would have come to this conclusion;
(c)The Third Respondent gives no reason or basis on which he awarded the First
Respondent R18 000,00 and it was submitted no such reason exists,
(d) The arbitrator failed to take cognisance of the nature of the relationship
between the Applicant and the First Respondent;
(e)The First Respondent was dishonest at the arbitration and no finding to this
effect was made by the Third Respondent.
Section 145(1)(a) of the Act, stipulates that any party to a dispute who
alleges a defect in any arbitration proceedings under the auspices of the
Commission may apply to Labour Court for an order setting aside the
arbitration award within six weeks of the date that the award was served on
the Applicant, unless the alleged defect was corruption.
Section 145(2) of the Act provides that "a defect referred to in sub-section (1)
means:
(a) That the Commissioner:
(i) committed misconduct in relation to the duties of the Commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct of
the arbitration proceedings, or
(iii) exceeded the Commission's powers, or
(b) That the award has been improperly obtained.
There are a number of judgments of this court dealing with the review of
arbitration awards either in terms of section 145 or section 158(1)(g) of the
Act. The uncertainty as to whether the award should be reviewed in terms of
section 145 or section 158(1)(g) has since been resolved in the matter of
Carephone (Pty) Ltd and Marcus N.O. and Others 1998(11) BLLR 1093 (LAC)
and also (1998) 19ILJ 1425 (LAC) in which the Court confirmed that the
review of arbitration awards must be under Section 145 of the Act.
Accordingly, the reference to Section 158(1)(g) by the Applicant in this
matter is incorrect. However, this court would condone same as the papers
were issued before the abovementioned judgment was delivered by the
Labour Appeal Court.
In the aforesaid judgment, FRONEMAN DJP, at 1099H, had this to say about
the constitutional imperatives for arbitrations held in terms of the Act:
"[20] The constitutional imperatives for the compulsory arbitration under the LRA are thus
that the process must be fair and equitable, that the arbitrator must be impartial and
unbiased, that the proceedings must be lawful and procedurally fair, that the reasons for the
award must be given publicly and in writing, that the award must be justifiable in terms of
those reasons and that it must be consistent with the fundamental right to fair labour
practices." (my own emphasis)
He then went on to state, at pages 1011I to 1102A, that:
"[31] The peg on which the extended scope of review has been hang is the
Constitutional provision that administrative action must be justifiable in relation to the
reasons given for it. (Sections 33 and item 23(b)of Schedule 6 to the Constitution). This
provision introduces a requirement of rationality in the merit or outcome of the
administrative decision. This goes beyond mere procedural impropriety as a ground for
review or rationality only as evidence of procedural impropriety."
At pages 1102 H – J he went on to pronounce that:
“[35] When the constitution requires administrative action to be justifiable in relation to the
reasons given for it, it thus seeks to give expression to the fundamental values of
accountability, responsiveness and openness. It does not purport to give courts the power to
perform the administrative function themselves, which would be the effect if justifiability in
the review process is equated to just or correctness.
[36] 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."
The evidence which was led at the arbitration, from my reading of the
transcript of the arbitration hearing, shows that at pages 50 to 52 of the
record, that the Applicant challenged the First Respondent's condition on the
23rd of September 1997. In his evidence he started by explaining what the
abbreviations “PID” and “UTI”, which were written in the First Respondent’s
abbreviations “PID” and “UTI”, which were written in the First Respondent’s
medical certificate, stand for. He stated that "PID" is an infection in the
uterus and fallopian tubes of a woman and "UTI" is an infection in the urinary
track. He further stated that the First Respondent "appeared fine" and she
“appeared far from crippled”. He didn't notice any difference and she was
her normal self on the 23 September 1997. The Applicant confirmed that he
would have observed if there was something wrong with her. She then went
on to state that one of the hallmarks of a bladder infection is that you go to
the toilet every ten minutes. You have this intense urge to pass urine.
According to the Applicant, she would have definitely noticed that sort of
symptom, as they do not have a toilet in their practice. You have got to
leave the surgery and go across the passage for you to find a toilet. He would
definitely have noticed if it happened. In the circumstances he had no reason
to believe that the First Respondent was physically ill on the 23rd of
September 1997
Also, at pages 52 and 53 of the record, the Applicant did express his
unhappiness about Dr Baijnath’s findings regarding the First Respondent’s
condition. His evidence about their conversation on 30 September 1997 was
as follows:
“COMMISSIONER: Okay, let’s go on. I contacted Dr Baijnath and she
explained that she had originally only given Barbara a certificate from 24th to
26th, but that Barbara had persuaded her to include … [intervention].
COMMISSIONER: Hold on. You contacted Baijnath – gave her a certificate for
the 24th to 26th?
WITNESS: 26TH, ja.
COMMISSIONER: Right, okay. Only?
WITNESS: Yes.
COMMISSIONER: But was persuaded?
WITNESS: Barbara had persuaded her to include the weekend. The 26th was
the Friday and of course she doesn’t work anyway.
COMMISSIONER: Yes?
WITNESS: I did not challenge Dr Baijnath as to what was wrong with Barbara,
I felt it would have been an invasion of patient-doctor relationship. And I also
did not in any way want to give - I did not want to affront Dr Baijnath's
professional ... (indistinct). So I stayed away from the actual whys and
wherefors. And I did ask Dr Baijnath whether she felt Barbara was so ill that
she would have been able to travel to Johannesburg or to Transvaal for the
weekend. And Dr Baijnath was extremely surprised to hear that Barbara had
gone away. She was also surprised that Barbara had not presented herself at
work on Monday the 29th. ... . This is a recollection that Dr Baijnath had
distinctly and Dr Baijnath was quite amazed that Barbara had not been at
work on that day at all."
In my view, it is clear that the Applicant did express his doubts about the
diagnosis of the First Respondent by Dr Baijnath during the hearing. It is
apparent from his evidence that he was not satisfied with the contents of the
medical certificate. However, he had not raised it with Dr Baijnath because
of ethical constraints. If the Commissioner was concerned about the
admissibility of parts of this evidence, then he should have called Dr Baijnath,
as he had elected to follow the inquisitorial system. Alternatively, he should
have alerted the Applicant about it, so that he could make his own choice, if
he would have known what to do as his representative had been excluded
from the process. Accordingly, I cannot reconcile the Commissioner's finding
with the evidence which was contained in the record, that is to say that the
condition of the First Respondent was never challenged by the Applicant. He
may not have said it in so many words or as a lawyer would, but he did.
The Commissioner then went on, in his arbitration award, to note that on the
29th of September 1997 the First Respondent was absent without a medical
certificate. That, on its own, is a punishable offence. However, in his award,
he does nothing about it. He merely notes it and moves on to make an
award without dealing with that particular aspect. Absenteeism without a
valid medical certificate or an explanation is a serious offence, especially if
one takes into consideration the overall evidence which was presented in
arbitration that the very same employee had travelled to Johannesburg whilst
she had been booked off sick by her doctor. The Second Respondent, clearly,
did not attach any weight to this evidence.
Furthermore, the Commissioner goes on to make an award, disregarding a
number of aggravating factors with regard to the employee's conduct.
Firstly, she knew that the Applicant was a single practitioner, he ran a busy
practice and relied heavily on her. Secondly, on the 25th of September 1997,
the Applicant had to close his practice because of the First Respondent's
absenteeism. Thirdly, the First Respondent never reported timeously that she
would be absent even though she knew months before about the tour or, if
one is benevolent, as early as the 23rd of September 1997 that she would
not be reporting for work on the 25th of September 1997. Fourthly, she never
made contact with the Applicant when she knew that she had to stay in touch
with her employer when she is absent from work because he totally
depended on her. In her own evidence, when testifying in relation to her last
absenteeism in July 1997 she confirmed that, she knew that she was
expected to remain in contact with the Applicant when she was off sick. This
had been raised with her after her absenteeism following upon her visit to the
Grahamstown Arts Festival. Fifthly, the Applicant only learned about the fact
that the family had gone for the weekend from the First Respondent's maid.
There is no evidence to suggest that she would have told the Applicant the
truth at any stage. What the First Respondent did not tell the Commissioner
is why she did not ask her husband to tell the Applicant that they were
actually going off on a soccer tour when her husband called to report that she
would not be coming to work on the 25th of September 1997. If her only
concern was the fact that if she called the Applicant, that would have put a
lot of stress on her, then there is no reason why her husband could not have
made that telephone call if she was interested in being honest with the
Applicant and telling him exactly what she was up to. In the circumstances,
she could not have been honest when she testified in the arbitration (as set
out in the Commissioner's award) that "she was unable to inform the
Applicant in advance that she would be on sick leave". Furthermore, there is
no basis for the Third Respondent's findings that she complied with the duty
to give notice because her husband called on the morning of 25 September
1997 to report that she would be absent. The visit to Dr Baijnath was during
working hours on 23 September 1997. Giving notice, surely, means adequate
notice. I would also go on to state that it should be given when the first
opportunity to do presents itself.
Furthermore, she travelled to Johannesburg whilst ill. She returned on
Sunday 28 September 1997 and there is no plausible reason why she did not
come to work on 29 September 1997. Whatever the reason was for not
coming to work on 29 September 1997, that could have been attended to at
lunch time on that day. Notwithstanding that the Commissioner found that
the leave taken was justified.
He also attached no weight to the Applicant's evidence that, as a result of the
First Respondent's absence, he suffered financially, because he had to close
the surgery on the first day and employ staff on the second day. This was
done notwithstanding a previous arrangement which had been made with the
First Respondent about how she should deal with absenteeism in future.
In light of the foregoing, I find that the Commissioner's findings with regard to
the question of absenteeism by the First Respondent, that is both over the
weekend and on Monday, 29 September 1997, are not rationally justifiable if
one takes into account the evidence which was presented at the arbitration
hearing. Actually, he made no finding at all with regard to the First
Respondent's absenteeism on the 29th of September 1997.
I would now like to turn to deal with the payment of R18 000,00 which was
awarded by the Commissioner. Section 33 read with Item 23(2) of Schedule
6 to the Constitution of the Republic of South Africa (Act No 108 of 1996)
provides that:
"23(2) Until the legislation envisaged in sections 32(2) and 33(3) of the new
constitution as enacted: ...
(b) Section 33(1) and (2) must be regarded to read as follows:
Every person has the right to
(a) Lawful administrative action where any of their rights or interests is affected or
threatened;
(b) Procedurally fair administrative action where any of their rights or legitimate
expectations is affected or threatened;
(c) Be furnished with reasons in writing for administrative action
which affects any of their rights or interests unless the reasons for that action have been
made public, and
(d) Administrative action which is justifiable in relation to the
reasons given for it, where any of their rights is affected or threatened."
It is apparent from the aforesaid provisions of the constitution that a person
performing an administrative action, is under an obligation to furnish reasons
to the parties for his decision. A Commissioner, who is sitting as an Arbitrator
is performing an administrative act, see Shoprite Checkers (Pty) Limited v
CCMA & Others (1998) 5 BLLR 510(LC) at 517F-G. Accordingly, a
Commissioner should give reasons for his award. It is a known fact, by triers
of fact that in writing awards or writing judgments, every effort is being made
to ensure that the award or judgment is written to explain to the losing party
why he has lost that particular case or arbitration.
Contrary to known and accepted practice, the Commissioner in this case
went ahead and awarded R18 000,00 to the employee, without furnishing
any reasons, as to why the R18 000,00 is being awarded. As a result, even at
the time of the hearing of this application, the Applicant did not understand
why the R18 000,00 was awarded. Consequently, the Applicant's
representative referred to this R18 000,00 as a "thumbsuck" by the Third
Respondent. I also fail to understand the basis of the aforesaid award of R18
000,00 as it is clear from the evidence which is before me that on 3 October
1997 the First Respondent was paid one (1) month’s salary in lieu of notice in
accordance with the recommendations of Mr Keegan. In light of what I have
said above, I am of the view that the Commissioner's award, as set out
above, was arbitrary and does not meet fair labour practices, as envisaged in
Carephone (Pty) Limited v Marcus N.O., above, and also fair administrative
justice, as pronounced in our constitution.
In dealing with the stringent standards contained in Section 33 of the
Constitution disputes, PRETORIUS AJ, in Shoprite Checkers (PTY) Ltd v CCMA
and Others above at 517I – 518A said:
"Not only the interests of justice, but also sound labour relations may well be better served by
arbitration decisions which comply with the standards implicit in section 33 of the
constitution than by arbitration decisions which do not necessarily comply with the
standards, but serve to end labour relations disputes more speedily."
I agree with the sentiments of PRETORIUS AJ in this regard.
I would now turn to deal with an issue which was also raised by the Applicant
and also the Applicant's representative during argument, the fact that the
Commissioner did not give the Applicant an opportunity to call any witnesses
or to cross-examine the First Respondent so as to deal with the dishonest
statement made by the First Respondent.
It is apparent that the parties, when they came to the arbitration hearing,
had legal representatives. However, the Commissioner suggested or
recommended to them that the matter can be resolved without legal
representatives and accordingly an agreement was reached to the effect that
there would be no representation and the Commissioner would deal with the
matter. The Commissioner then, on his own accord, dealt with this matter in
an inquisitorial manner. He started by a brief explanation of the inquisitorial
procedure. Then he asked the Applicant to explain what happened in this
matter. The Applicant stated his version. Thereafter, he went on to ask the
First Respondent to put her version, and that was the end of the evidence.
On the face of the record of the hearing, it is apparent that no explanation of
the rights was given to the parties, nor was the Applicant asked whether he
wished to cross-examine the First Respondent or to call any other witnesses.
The request to call witnesses emanated from the Applicant. It is apparent, in
the record, that the Applicant, on more than one occasion, asked to call
witnesses. At all times this request was not adhered to by the Commissioner.
The first time the Applicant asked to call a witness, the Commissioner did not
respond to that request. On the second occasion, there was quite an
exchange between the Commissioner and the Applicant when the Applicant
asked to call a witness. The Commissioner enquired whether the calling of
that particular witness would take the matter anywhere. The witness was to
testify about the date when the First Respondent had been absent, after
attending the Grahamstown Festival. What was discussed on the said day by
the Applicant and the First Respondent was not in dispute. The only thing in
dispute was the question of the dates. I do not believe that calling that
particular witness would have taken this matter anywhere.
Even though I do agree with the fact that with regard to these two particular
incidents, there was no need for that particular witness to be called, I still
believe that a Commissioner should be careful of the fact that an
unrepresented litigant might easily be dissuaded from making any further
requests to call witnesses if his or her requests are declined all the time or
without giving reasons. The unrepresented litigant might actually think that
he is not allowed, at all, to call witnesses in the arbitration.
I have already mentioned the fact that the parties were unrepresented at the
request or recommendation of the Third Respondent at the arbitration
hearing. This is a fact which the Third Respondent should have taken into
consideration in dealing with the parties and also in deciding whether to allow
them to call witnesses or not. In this regard, he should have taken
cognisance of the fact that the parties are unrepresented and every care
should be taken in ensuring that they are satisfied with the process at the
end of the day, that is, they have been given an opportunity to lead whatever
evidence which they wanted to present. One should not forget the well-
known principle of our law that “Justice must not only be done but must also,
be seen to be done”. See R v Rall 1982 (1) SA 828 at 831H (AD) and S v
Sallen 1987 (4) SA 772. In S v Selemana 1975(4) SA 908 at 909 (TPD),
FRANKLIN J stated:
"A magistrate must be exceptionally careful when refusing to allow an
accused to call a witness. In particular, when the accused is unrepresented,
the magistrate, before refusing such a request, should make certain that
such a witness cannot possibly give relevant evidence. If the court is not
careful to observe this obligation, a miscarriage of justice may result: S v
Tembani 1970(4) SA 395 (E). Indeed, the denial of such an
opportunity is in itself a gross irregularity in the proceedings: District
Commandant, South African Police and Another v Murray 1924 AD 13 at page
18; S v Vezi 1963(1) SA 9 (N) at page 12."
I am in full agreement with the views of FRANKLIN J stated above. I do
believe that the same principles should apply in labour matters, especially in
those matters in which the parties are unrepresented, as it is normally the
case, in matters before the CCMA.
Sections 138(1) and (2) of the Act state that:
“(1) 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.
(2) Subject to the discretion of the Commissioner as to the appropriate proceedings, a
party to the dispute may give evidence, call witnesses, question the witness of any other
party, and address concluding arguments to the Commissioner."
party, and address concluding arguments to the Commissioner."
The Applicant also testified in his affidavit that he believed that he should
have been given an opportunity to call Dr Baijnath, to the CCMA hearing. The
above-mentioned Section 138(2) has been interpreted to mean that the
Commissioner has a discretion to decide as to whether to call witnesses or
not. Notwithstanding the aforesaid discretion of the Commissioner, the said
discretion must be applied judiciously. I agree with the Applicant that Dr
Baijnath should have been called. If the Applicant was not allowed to call Dr
Baijnath, the Commissioner, then should have considered calling Dr Baijnath
himself. I have already expressed a view on this. There were a number of
queries which could have been clarified by Dr Baijnath for him to reach an
appropriate decision in this matter. The issue of whether it was the First
Respondent who requested the medical certificate to include Saturday, the
27th and Sunday, the 28th of September 1997 or was it Dr Baijnath who
decided to do so on her own accord; Dr Baijnath’s diagnosis and prognosis of
the First Respondent. (was it stress as alleged by the First Respondent or was
it the infection as stipulated in the medical report). These issues were of
significance in light of the Applicant’s evidence, relating to the First
Respondent’s condition on Tuesday, 23 September 1997, and the First
Respondent’s evidence.
Section 138(1) of the Act has been interpreted to mean that Commissioners
can proceed to deal with a matter before them in an inquisitorial manner.
However, I would like to sound a word of warning that, if a commissioner
proceeds to deal with the matter in an inquisitorial manner, the inquisitorial
system, should be followed by a Commissioner who is prepared to go beyond
the Arbitrator’s normal role of holding the scale between the contending
parties to determine in which way the balance tilts, (see Hamman v Moolman
1968(4) 340 at 344D-H) and be fully involved. This involves, inter alia, taking
control and responsibility for the direction of the proceedings, including,
calling for evidence and witnesses, asking relevant and searching questions
to get to the truth. I do not believe that it happened in this matter.
Notwithstanding that I still do not believe that the right to cross-examination
should be excluded under those circumstances. If a party attending a
hearing is familiar with the facts, he is the one who is best equipped to
identify inconsistencies as well as contradictions which might be told by the
other party. Accordingly, he should be given an opportunity to cross-
examine the opposing party.
It is trite that the purpose of cross-examination is to elicit evidence which
supports the cross-examiners case and to cast doubt upon the evidence
given for the other side. It is one of the most powerful and valuable weapons
for purpose of testing the truthfulness of a witness and the accuracy of his
testimony before a court or tribunal. WIGMORE has called it the greatest
engine ever invented for the discovery of truth. See THE SOUTH AFRICAN
LAW OF EVIDENCE (4th edition) page 456. In MAY : THE SOUTH AFRICAN
CASES ON STATUTES AND EVIDENCE, the author had this to say about the
effectiveness of cross-examination:
“For cross-examination has the inestimable advantage of being able to extract from the
mouth of the untruthful, the mistaken or the forgetful a correction of their own assertions, to
test the means of knowledge and memory, to expose bias, to turn a new angle upon one-
sided impressions, to emphasise inconsistencies and expose contradictions, to sift where too
much has been said, to expand where too little, to supply omissions, to search out what is
concealed and to focus the fierce beams of truth into every dark corner”.
(c.f. The State v Nkabinde 1998 (8) BCLR 996 (N) at 1004.
Accordingly the removal of this potent weapon from any litigant, cannot be
condoned.
I do agree that a mere omission by the Commissioner to record or mention
that he explained to the parties their rights to call witnesses and to cross-
examine witnesses if, in fact, it took place, is not necessarily fatal. See Rex V
Sibiya 1947(2) SA 50 (AD) and also S v Vezi 1963(1) at 11. In casu the record
does not show that, there was an omission to record it but there is evidence
to the contrary.
I am also aware of the provisions of section 138(1) of the Act, which
stipulates that the Commissioner may conduct arbitration in the manner that
the Commissioner has considered appropriate in order to determine the
dispute fairly and quickly and must be with the minimum of legal formalities.
However, in so doing, I would like to indicate that even though it might be
that the Commissioner wants to deal with this dispute in a expeditious
fashion, in so doing, he should not overlook the primary objects of the Act, as
contained in Section 1 of the Act. Section (1)(d)(iv) states that the purpose of
the Act is to advance economic development, social justice, labour peace and
the democratisation of the workplace by fulfilling the primary objects of this
Act, which are, to promote, the effective resolution of labour disputes. I
would place an emphasis on the effectiveness of the dispute resolution. It
could be that the Third Respondent was more concerned about the speedy
resolution of the dispute, but the speedy resolution should also be an
effective resolution of the labour dispute. The matter has been referred to
this particular Court because the Applicant feels that the resolution of the
dispute was not effective.
The Applicant has also raised an allegation of bias against the Commissioner.
I have considered this allegation. In so doing, I have also perused through
the entire record and I could not find anything in the record to suggest that
there was such bias.
Accordingly, I find that the Third Respondent’s decision is reviewable on the
four grounds, namely, the failure of the Third Respondent to call Dr Baijnath
as a witness, the failure to allow the Applicant to cross-examine the First
Respondent, the failure by the Third Respondent to give reasons for the
award of R18 000,00, and the failure by the Commissioner to give an award
which is rationally justifiable on the basis of the evidence which has been
presented before the arbitration.
I accordingly make the following order:
(a)The arbitration award which was given on the 3rd of April 1999, under CCMA
case No KN8975, is hereby reviewed and set aside;
(b) The matter is referred back to the Commission for Conciliation, Mediation
and Arbitration, to be arbitrated by another Commissioner other than the
Third Respondent, and
1. I make no order as to costs.
______________________________
JALI A.J.
ON BEHALF OF APPLICANT:
MR DUNSTAN FARRELL
of Shepstone and Wylie, Durban.
ON BEHALF OF RESPONDENTS:
NO APPEARANCES
DATE OF HEARING:
25 MAY 1999
DATE OF JUDGMENT:
17 JUNE 1999
PLACE OF PROCEEDINGS:
DURBAN