IN THE LABOUR COURT OF SOUTH AFRICA
CASE NUMBER J 239/99
In the matter between :
KAROS LEISURE (PTY) LIMITED t/a
MöVENPICK Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
RICHARD BYRNE Second
Respondent
ANNAH NGOMANE Third Respondent
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J U D G E M E N T
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KENNEDY A J
[1] The Applicant seeks to review an arbitration award of the
Second Respondent, a Commissioner of the Commission for
Conciliation, Mediation and Arbitration (" the Arbitrator "). The
arbitration proceedings arose from a decision taken on 28th August
1998 by the Applicant at the conclusion of a disciplinary enquiry, in
which the Third Respondent was found guilty of dishonesty and the
removal of company property, and she was dismissed.
[2] The only issue before the Arbitrator was whether or not the
dismissal was substantively fair. Procedural fairness was not in
dispute. The Arbitrator concluded, in his award delivered on the 18th
December 1998, that the dismissal of the Third Respondent was
substantively unfair in that " her dismissal was not appropriate ".
He ordered the Applicant to reinstate her with effect from 20th
November 1998.
[3] The review application, brought in terms of section 145 of
the Labour Relations Act, No 64 of 1995, is not opposed by any of the
Respondents. The grounds on which the Applicant seeks to review and
set aside the award of the Arbitrator are, in the main, concerned with
the manner in which the Arbitrator conducted the proceedings. In
effect, the main grounds advanced are to the effect that the Arbitrator
irregularly and unfairly restricted the evidence and argument.
[4] Section 138(1) of the Labour Relations Act provides that:
"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."
That section gives a considerable measure of discretion to
Commissioners conducting arbitrations under the Labour Relations Act.
For sound practical reasons, it eschews formalism and seeks to
achieve the speedy resolution of labour disputes. However, as the
section indicates, such disputes are to be resolved not only " quickly"
but also "fairly". Fairness is of course an overriding and fundamental
objective of the Act. When the approach of a Commissioner is such
that, in an effort to dispose of the proceedings speedily, the
requirements of fair procedure are overlooked or ignored, and this
prevents the parties one of them from being heard fully and properly,
this may constitute unreasonable and unfair action, and indeed gross
irregularity, of such a nature which may render the entire proceedings,
and the award which is delivered, liable to be set aside on review.
[5] In the present matter, the uncontradicted evidence
contained in the founding affidavit of the Applicant is to the effect that
the Arbitrator stated that he was in a hurry to return to Johannesburg
and that he might have to leave the proceedings before they were
concluded. Accordingly, another Commissioner sat with him during
the procee-dings, on the stated basis that if the Arbitrator who had
been appointed to preside over the arbitration, had to leave early, the
second Commissioner would then conclude the matter, after hearing
all the evidence. The proceedings were however concluded speedily
and the Arbitrator did not leave before the end of the hearing of
evidence. At the end of the arbitration proceedings, the Arbitrator
indicated that he intended to deliver his findings immediately after a
brief adjournment of a few minutes, when he left the room together
with the other Commissioner, apparently conferred with him, and then
returned a few minutes later to deliver the award. This approach is in
my view highly questionable. The Second Respondent alone had been
appointed as the Arbitrator to preside over the arbitration proceedings
and to decide the matter and to deliver his award. The other
Commissioner had not been so appointed. It appears to me to be
clearly inappropriate that the sole Arbitrator appointed to preside over
the proceedings should confer with anyone else in such a manner.
[6] There are a number of features which are of particular
concern in relation to how the proceedings were conducted. In the
first place, it is apparent from the founding affidavit, and it has not
been disputed either by the Arbitrator or any of the other
Respondents, that during the arbitration proceedings, the Third
Respondent, being the employee dismissed by the present Applicant,
and who contended before the Arbitrator that her dismissal was unfair,
was not called to give any evidence. The Arbitrator appears to have
relied first on statements made on the Third Respondent's behalf by
her union representative, Mr Rakolle, and second on the evidence
which she had given previously before the disciplinary enquiry prior to
her dismissal. The statements by Mr Rakolle during the arbitration
proceeding, were only hearsay statements and not evidence given
under oath. The Third Respondent did not give any such evidence of
her own under oath, not did the Applicant's representative have the
opportunity to cross-examine her. In my view, there is considerable
merit in the submission of Ms Fulton, the Applicant's attorney who
appeared at the hearing of this application, that the Third
Respondent's testimony and her account of relevant events was
crucial to a fair hearing and that it was a gross irregularity for the
Arbitrator to allow the Third Respondent to advance her case through
her representative and to deny the Applicant's representative the
opportunity to cross-examine her.
See in this regard B & D Mines (Pty) Limited v Sebotha N.O and
Another [1998] 6 BLLR 573 (LC) at 574 I to 575 H
[7] This problem was exacerbated by the fact that the
Arbitrator relied selectively on what had previously been advanced on
the Third Respondent's behalf during the disciplinary enquiry. In
particular he referred to and apparently accepted without more the
statement made by the Third Respondent during that disciplinary
enquiry that she had been instructed by her supervisor, Ms Julia
Ngomane, that she had to throw away the dish towels which were
subsequently found in her possession and which she was found guilty
of stealing. During the disciplinary enquiry, the Third Respondent had
called Ms Ngomane as a witness to corroborate her evidence in that
regard. However, Ms Ngomane had contradicted her evidence and
denied having told the Third Respondent to throw away the dish
cloths. The Arbitrator appears to have ignored this evidence or at
least did not properly apply his mind to it. Furthermore, the Applicant's
representative at the arbitration proceedings had intended to call Ms
Ngomane to testify to the effect that she had in fact instructed the
Third Respondent to use the dish towels for cleaning. It appears from
the uncontradicted and detailed description by the deponent to the
Applicant's founding and supplementary affidavits that the Arbitrator
conducted the proceedings with inappropriate haste, and he failed to
afford the Applicant's representative an opportunity to call Ms
Ngomane. By precluding the Applicant's representative from leading
evidence which was clearly relevant, the Arbitrator again acted in an
irregular and unfair manner.
Afrox Limited v Laka and Others [1999] 5 BLLR 467 (LC) at 489
D - G;
Legal Aid Board v John N.O and Another [1998] 4 BLLR 400 (LC)
at 404 G - I
[8] It is also apparent from the evidence before me that the
Arbitrator failed to allow or to call for closing argument after the
conclusion of the evidence. The affidavits of the Applicant's deponent
state that at the conclusion of evidence, and without calling for closing
argument, the Arbitrator stated that he was ready to make a finding,
he left the room and returned approximately two minutes later, and
stated that the sanction in respect of the Third Respondent was too
severe and that a written warning would have been more appropriate.
The only evidence before me that might call into question this
averment is a reference in the handwritten notes of the Arbitrator
which, under the heading of closing argument, sets out only three
lines of cryptic notes. Two lines of those appear to relate to argument
on behalf of the Applicant reading:
"Contention that forgot, is unlikely. Discussed daily. Rejects
kept for cleaning purposes."
This relates to one small aspect of the entire enquiry before the
Arbitrator. It is highly unlikely that there was any detailed argument
canvassing the other relevant issues if there was no note of this.
Furthermore, the Arbitrator has not filed any explanatory affidavit or
other statement which places in question the clear evidence of the
Applicant's deponent, Mr Norris, who was its representative at the
arbitration proceedings. It is supported also by the version of Mr
Norris that after the Arbitrator had handed down his findings, Mr Norris
attempted to refer the Arbitrator to legal principles concerning
dishonesty in cases such as Anglo American Farms t/a Boschendal
Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC) and Standard
Bank of South Africa v CCMA and Others [1998] 6 BLLR 622
(LC) at 632 D . Significantly the notes of the Arbitrator contain a
reference to those two cases, but that note appears after the passage
in the Arbitrator's notes setting out, again in cryptic form, the findings
and reasons of the Arbitrator in upholding the claim of the Third
Respondent. It would therefore appear clearly that the Arbitrator did
not allow or invite closing argument at the crucial stage, viz before a
decision was made. This in my view, constitutes a gross irregularity.
Mutual and Federal Insurance Company Limited v CCMA [1997]
12 BLLR 1610 (LC) at 1616 A - H
[9] I am accordingly satisfied that the defects in the
proceedings constitute gross irregularities and proper grounds for
reviewing and setting aside the decision of the Arbitrator. It
accordingly is unnecessary for me to deal with the other grounds
raised by Ms Fulton in challenging the Arbitrator's award.
[10] Ms Fulton submitted that in the event that the award is set
aside, the matter should not be remitted to the CCMA for arbitration by
another Commissioner, but that based on the evidence before me as
presented to the arbitration, this Court should substitute its own
decision for that of the Arbitrator. I am not persuaded by this
submission. It appears that there are a number of factual questions
which require to be properly ventilated by means of oral evidence and
cross-examination to deal with the various issues, such as the
harshness of the penalty. In my view, it would be inappropriate for
this Court to reach such conclusions merely on the basis of the
evidence presented to the Arbitrator, particularly where that evidence
was unnecessarily limited by the Arbitrator.
[11] In the result I grant the following order:
(a) The arbitration award of Commissioner R Byrne dated 18
December 1998 in CCMA case number MP 8226 is hereby reviewed
and set aside.
(b) The matter is to be remitted to the Commission for
Conciliation, Mediation and Arbitration for a fresh hearing of the
matter before a Commissioner other than the Second Respondent.
(c) There is no order as to costs.
PAUL KENNEDY
ACTING JUDGE OF THE
LABOUR COURT
20 AUGUST 1999
Date of hearing : 17th August 1999
Date of judgment: 20th August 1999
Applicant represented by: Ms K Fulton
Applicant's Attorneys: Bowman Gilfillan Hayman Godfrey
Inc
No appearance for the Respondents