166336IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C365/99
In the matter between:
DESMOND MALANG Applicant
And
MR D I K WILSON N.O. COMMISSIONER CCMA First
Respondent
WYNLAND PRINTERS (PTY) LIMITED Second
Respondent
JUDGMENT
STELZNER AJ
1. This matter came before me by way of an application in terms of section 145 of the
Labour Relations Act, No 66 of 1995 (“the Act”). The applicant seeks an order
reviewing, setting aside and correcting the arbitration award of the first respondent
sitting as a Commissioner of the Commissioner for Conciliation Mediation &
Arbitration, alternatively reviewing and setting aside the award and referring the
matter back to the CCMA for a fresh decision. The applicant alleges that the findings
of first respondent are unjustifiable in relation to the reasons given for them.
2. At the arbitration proceedings the first respondent found that the second respondent
had proved on a balance of probabilities that applicant was guilty of the offence of
insubordination. He found, further, that second respondent had held both a
disciplinary hearing and an appeal, both of which were chaired by one Mr Atkinson,
the managing director. It was common cause that the applicant had been employed
as a general assistant. First respondent found that at the appeal hearing Atkinson
made an offer to reinstate applicant in the position of assistant guillotine operator.
1
The fact that the decision on appeal was to reinstate the applicant nullified what
would otherwise have been regarded as procedural unfairness by virtue of the fact
that both the disciplinary enquiry and the appeal were chaired by the same person.
However, the first respondent also pointed out that, in any event, as Atkinson was the
managing director there was no more senior person in the company to chair the
appeal. In the arbitration award the first respondent states that the only allegation of
procedural unfairness raised by the applicant was the fact that Atkinson had chaired
both hearings. In the circumstances he found the dismissal to be both substantively
and procedurally fair and the application was dismissed.
3. The matter came before me on an unopposed basis. The first respondent filed an
affidavit clarifying the reasons for his award but stated that he abides the decisions of
this court in the review. The applicant had previously been given leave by this court
to supplement the grounds for his review by way of a supplementary founding
affidavit. The original founding affidavit had been somewhat unclear in regard to the
grounds for review and the relevant section of the Act under which the review was
brought. The supplementary founding affidavit did not repeat all of the averments
contained in the original founding affidavit. When the matter came before me,
however, three essential grounds for review were pursued and argued. I deal with
each in turn hereunder.
4. Mr O’Dowd, who appeared for the applicant, argued that there were no facts before
the first respondent to sustain his finding that applicant had been offered
reinstatement at the appeal hearing. He submitted that the facts showed that
applicant had been employed as a general assistant and was, at the appeal hearing,
offered the position of assistant guillotine operator. He submitted that it was thus
offered the position of assistant guillotine operator. He submitted that it was thus
quite clear on the facts that what was offered was a different position to that which
2
applicant had previously occupied. He argued that the offer was thus an offer of re-
employment rather than reinstatement. He argued that in the absence of evidence to
support the first respondent’s finding there was an irregularity in the proceedings
such as contemplated in section 145(2)(a)(ii) of the Act.
5. In the affidavit filed by the first respondent he clarifies his finding in regard to the fact
that there was an offer of reinstatement by stating that the decision on appeal
amounted to reinstatement in “ substantially the same position ”. The first
respondent’s notes which formed part of the record before me indicate as follows on
this subject:
“DM (the applicant) was not dismissed – was suspended on full pay. He was offered a
job as assistant guillotine operator; he refused it; therefore dismissed. No other
opportunity available.”
6. In my view the distinction between reinstatement and re-employment goes to the
issue of continuity of employment. An employee who is reinstated is regarded as
having continuous service from the original date of appointment, whereas an
employee who is re-employed commences afresh as a new employee. On the facts
before the arbitrator (as they appear from the limited papers before me – the record
consisting of only a hand written notes by the first respondent) it appears that he was
correct in concluding that the applicant was offered reinstatement albeit that the job
he was offered was not exactly the same as the one previously occupied by him. I
have no difficulty with the concept that an employee be reinstated albeit on different
terms and conditions of employment. The issue which would flow therefrom would be
whether or not it was reasonable or unreasonable in the circumstances for the
employee to refuse the offer of reinstatement on different terms. That, however, is
3
not the issue before me in this matter. I am unable to conclude on the facts before
me, therefore, that the first respondent’s finding in regard to the offer of
reinstatement was unjustifiable or that it constituted a gross irregularity.
7. This leads me to applicant’s second ground of review, namely, the fact that first
respondent reached the conclusion which he did in respect of the issue of the
disciplinary hearing and the appeal being held by the same person. In the first
instance it was submitted that the reason given by first respondent to the effect that
there was no more senior person to chair the appeal was unsupported by any
evidence. (It was conceded, nevertheless, that as Atkinson was the managing
director it was hard to imagine the existence of someone more senior within the
business). However, it was submitted further that it was clear from the record that
there was a third director (the second director having been the initiator of the charges
against the applicant) who on the face of it could have chaired one of the hearings. It
was submitted, therefore, that the arbitrator’s conclusion was wrong in law. If there
was someone else of the same seniority he could and should have heard the appeal in
Atkinson’s stead.
8. I am not satisfied that the conclusions reached by the first respondent can be said to
be wrong either in fact or in law. The fact that there was another director who,
arguably, could have chaired the initial enquiry or the appeal may be so. The fact still
remains, however, that there was no more senior person in the company to chair the
appeal after Atkinson had chaired the disciplinary enquiry. The first respondent’s
conclusion on the facts thus cannot be faulted. The first respondent’s conclusion,
furthermore, was not that it was, as a matter of law, in the normal course of events
fair for the same person to chair both the initial hearing and the appeal. He decided,
fair for the same person to chair both the initial hearing and the appeal. He decided,
rather, that because Atkinson offered the applicant reinstatement on appeal it was
4
clear that Atkinson had applied his mind afresh to the matter and that the applicant
had not been prejudiced by the fact that the same person chaired both hearings. I do
not think that his application of the law to the facts was either inappropriate or
unjustifiable.
9. Finally, it was submitted that the first respondent’s finding to the effect that there
were no procedural irregularities was unjustified in relation to the evidence before
him. It was submitted that the evidence showed clearly that the procedure was unfair
in that Atkinson discussed the arguments and evidence with the rest of management
in the absence of applicant and his representative and, further, decided the outcome
after consulting with the rest of management, including the complainant, in the
absence of applicant and his representative. In short it was submitted that faced with
this evidence it was totally unjustifiable for the arbitrator to have concluded that the
procedure was fair.
10. In regard to this last ground the record does appear to indicate that Atkinson in
fact had discussions and made his decision in consultation with management. Such
conduct would normally tend to indicate procedural unfairness. However, it appears
from first respondent’s award that he made his decision on the issue of procedural
fairness on the basis that the employee had “ only alleged procedural unfairness in
that Mr Atkinson chaired both hearings. ” If that was the only challenge to procedural
fairness before him (and this issue is not placed in dispute on the papers before me)
and in the light of his conclusions on that challenge, it does not appear that there is
anything irregular in the conclusion of first respondent that the dismissal was
procedurally fair.
11. Accordingly, applicant has failed to pursuade me in regard to any of the grounds
5
put forward in support of the application for review under section 145 of the Act. As
the matter was unopposed applicant should simply bear his own costs.
12. I might mention further that, even if I were wrong in regard to my conclusions as
set out above, this appears to be the kind of case such as is contemplated by the
Labour Appeal Court in Johnson & Johnson v Chemical Workers’ Industrial Union
(1999) 20 ILJ 89 (LAC), where one would be inclined, given the refusal by applicant to
accept the job offered to him at the appeal, to exercise one’s discretion against
making any award of compensation even in the event of finding some procedural
unfairness.
13. In the circumstances I make the following order:
13.1The application is dismissed.
13.2There is no order as to costs.
S STELZNER
Acting Judge of the Labour Court of South Africa
DATE OF HEARING: 19 August 1999
DATE OF JUDGMENT: 27 August 1999
APPEARANCE FOR APPLICANT: Mr B O’Dowd
6
7