VIC & DUP/JOHANNESBURG/LKS
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
DATE: 10 September 1999 CASE NO. J2341/98
In the matter between:
PRITCHARD CLEANING SERVICES Applicant
and
LEBEA, J N First Respondent
COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION Second Respondent
MASHODI, P Third Respondent
J U D G M E N T
NGWENYA, AJ
[1] This is a review application in terms of section
145 of the Labour Relations Act. Briefly the parties
are the following: Fidelity Guards Holding (Pty)
Limited v Lebea, J N N.O. and Others . The first
respondent is the commissioner who arbitrated in this
matter and the second respondent is the Commission for
Conciliation, Mediation and Arbitration which is a
statutory body in terms of the Labour Relations Act,
tasked with the duties to arbitrate and conciliate
labour disputes. And the third respondent is the
employee of the applicant who brought the dispute
between her and the applicant to the CCMA, the second
respondent.
[2] On 3 August 1998 the first respondent issued the
award in the following terms, amongst others that the
dismissal/..
dismissal of the third respondent for poor work
performance on 31 October 1998 by the applicant was
both substantially and procedurally unfair and the
company was ordered to reinstate Miss Mashodi, the
third respondent, on terms and conditions of employment
not less favourable to her than those that would have
applied to her had she not been unfairly dismissed and
that the applicant was ordered to pay the third
respondent an amount equivalent to eight months
remuneration for the period which she has stayed
without employment and that the reinstatement was to be
effected within 14 days of the date of the award.
[3] This arbitration award was as a result of the
arbitration proceedings which were conducted by the
first respondent on 29 June 1998.
[4] A brief background in this matter is as follows:
That respondent was employed by the applicant and at
the time of her dismissal on 31 October 1998 was a site
supervisor and posted to one of the Holiday Inns in
Johannesburg. She was employed by the applicant
sometime in 1996 and at the time of her dismissal she
was a supervisor earning a salary of R1 600,00 a month.
[5] According to the first respondent this matter was
initially scheduled for arbitration on 11 February 1998
but due to nonattendance by applicant the matter was
postponed sine die . The reasons why the applicant
referred the matter to CCMA are the following. That
after a disciplinary hearing in which she was charged
with the following counts: Poor work performance and
failure to carry out an instruction by the area manager
she/..
she was found guilty and dismissed. She then referred
the matter for conciliation, to the Second Respondent.
Conciliation could not resolve the matter and then
subsequently she requested an arbitration which was
presided over by the first respondent as a commissioner
[6] On the date of the arbitration, 29 June 1996, the
matter was heard before 11:00 midday but it had to be
stood down until 13:45, the reason being that there was
no appearance on behalf of the applicant. The first
respondent phoned applicant and spoke to one Ms C
Venter and subsequently one Matela, a supervisor
employed by the applicant, was sent. According to the
founding affidavit filed by the applicant Matela was
sent to explain the following to the first respondent:
1. That there was no one entrusted with the
responsibility of dealing with arbitrations at the CCMA
at applicant available;
2. that in any event, the applicant only became aware
of the proceedings upon receiving the telephone call
from the first respondent that there was arbitration
that was supposed to be attended by the applicant; and
3. that therefore the applicant sought postponement
so that it could prepare as well as to get the right
person designated for that specific job to attend to
the arbitration proceedings.
Those averments are placed in the form of an affidavit
and could not be ascertained elsewhere.
[7]/..
[7] The first respondent, upon the arrival Matela,
proceeded with the arbitration proceedings. Matela led
evidence on behalf of the applicant and the third
respondent led evidence on her own behalf. After the
conclusion of the hearing first respondent reserved his
decision and it was then released on 3 August 1998. It
is this decision that is now the subject of this
review.
[8] The grounds of review set out in the founding
affidavit of the applicant are brief as follows:
1. He says the first respondent exceeded his powers
and acted grossly irregular and male fide in
proceedings in the face of strenuous application for
postponement.
2. That the first respondent did not have regard to
the evidence before him, alternatively that he
selectively evaluated the evidence before him.
Now in the course of my judgment I will examine those
grounds in detail.
[9] The applicant further raises the point but does
not take it further on papers, it says it is not sure
whether all the jurisdictional facts were complied with
but it cannot take that any further because of some
reasons which I will come to shortly.
[10] The standard for review by this court is now well
settled by this the Labour Appeal Court in the case of
Carephone (Pty) Ltd v Marcus N.O. and Others (1998) 11
BLLR 1093 and I make specific reference to page 1102
para 35 and 36.
"When/..
"When the Constitution require administrative action to
be justifiable in relation to the reason given for it,
it does seek to give expression to 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 justness and correctness. In determining
whether administrative action is justifiable in terms
of the reasons given for it, the value judgment will
have to be made which will almost inevitably involve
the consideration on the merits in some way or another.
As long as the judge determining this issue is aware
that he or she enters the terrain not in order to
substitute his or her own decision on the correctness
thereof but to determine whether the outcome is
rationally justifiable the process would be in order."
At page 1103BC Froneman DJP goes on to say:
"It seems to me that one will never be able to
formulate a more specific test other than in one way or
another asking the questions is there a rational
objective basis justifying the connection made by the
administrative decision maker between the material
properly available to him and the conclusion he or she
eventually arrived at".
[11] In this case no record has been filed. Maybe I
may deal with that briefly as follows. Where a party
seeks to review the proceedings of a person or tribunal
which is entrusted with the duty to form an
administrative
function/..
function, such a party has got the duty to ensure that
there is a record of proceedings before court. Where
such record is not available for any reason, it would
be important and incumbent upon that party to
reconstruct the evidence that was placed before a body
or person whose decision is under review.
[12] I now revert back to the question of exceeding the
powers or gross irregularity as set out in the
applicant's founding affidavit. I may say at this
stage that it would appear that fundamentally in this
case the applicant take issue with the first respondent
that he refused postponement in spite of the fact that
first respondent was aware that there was no service on
the applicant that there was arbitration proceedings
taking place on that day, namely 29 June 1998. Further
that first respondent was fully aware that the person
that appeared before him was a junior employee who did
not have with him the relevant file, who did not come
to him prepared for that day, and lastly, who was not
empowered by the applicant to conduct arbitration
proceedings. This is manifestly so if one has regard
to the founding affidavit filed on behalf of the
applicant, in particular paragraph 7. It says in
7.1.1:
"It was at all times the contention of the applicant
that it did not receive any notification of the
arbitration date nor of the fact that this matter had
been referred to arbitration."
[13] The applicant does not attempt in these proceedings
to explain what steps were taken to reconstruct the
record in/..
in the absence of the record and in the absence of this
contention being recorded by the commissioner. Indeed,
if this contention was justifiable on facts, it would
be a serious consideration that this court will have to
make. But I must say further that to the extent that
the applicant contends that there was no service by the
second respondent to it that there was an arbitration
process taking place on 29 June 1998, on that point I
find for the applicant, the reason being that in his
explanatory affidavit Commissioner Lebea specifically
attaches a fax result sheet which indicates that the
notification was faxed. It is quite clear because he
even mentions the time which correlates with this
annexure that it was served on the third respondent.
If that be the case that there was no proper service to
the applicant, then applicant will of course be
justified in not attending an arbitration process and
of course he would be further entitled to seek
postponement on the grounds of not being ready, and
therefore of being ill prepared. As such there would
be no basis to hold that the applicant's nonattendance
was mala fide . I accept that applicant is correct when
it says it was not aware of the preceeding on this day
[14] But the matter does not end there, it goes
further. Once first respondent phoned applicant and
spoke to Venter and the latter facilitated the presence
of somebody in the name of Matela, the question now
that warrants serious interrogation is whether did
Matela put an application for postponement? Did the
first respondent refuse an application for postponement
on
the/
..
the face of the facts which I have referred to?
According to the applicant, the first respondent
insisted that the matter proceed and Matela
present applicant's case and that Matela was of
the view that he was compelled to do so and
accordingly proceeded without any form of
preparation or prior notification of the hearing and
at a distinct disadvantage presented the applicant's
case as instructed by the first respondent to do so.
[15] In his explanatory affidavit this is the following
direct response by the first respondent.
"Mr Matela never made any application or request for
postponement or adjournment of the proceedings. In
this regard I find it strange why I would have refused
an application for postponement whilst I have
previously postponed the proceedings on 11 February
1998 without any such application or request having
been made. Furthermore, on 29 June 1998 I stood down
the proceedings from 11:00 until 13:45 waiting for the
appearance by or on behalf of the applicant."
[16] There is no indication on record or on the papers
filed before me that Matela made any attempts to phone
the respondent or to ask the matter to stand down so
that he can get instructions or that he ever indeed
made the application as contended for. The reason why
I am saying that is the following, that the applicant
here is seeking a final relief and therefore it would
be important to resolve that dispute of facts on paper
as follows: In the oft quoted judgment by this court
and
High/..
High Court is the case of PlasconEvans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 620 (A) at
634 in particular EH. This judgment is followed in
National Union of Mineworkers v Free Gold Consolidated
Gold Mine Operations Ltd, President Steyn Mine and
Western Holdings (1998) 9 SALR 122. Zondo, J at page
142 para 66 has the following to say:
"As applicant is seeking final relief, the decision of
the court must be based on the respondent's version of
what happened if there is a dispute of fact between the
versions of the parties unless the respondent's version
is so untenable that a court would be justified in
rejecting it on paper."
[17] For that reason I hold that I would decide that
point on the respondent's version, that Matela did not
put an application for postponement, that Matela did
not make the allegation that he said he made namely
that he advised the first respondent that he was not
the right person to proceed; that he was not prepared
to proceed on that day.
[18] It is true that if my finding was otherwise, this
point alone would have serious consequences in this
matter, in the sense that it would have constituted a
ground for review as set out in the Carephone case. It
would indeed be irregular for a commissioner or a body
instead to have refused a postponement on the face of
such facts. I therefore proceed on the basis that
after Matela was advised to attend to the arbitration
proceedings/..
proceedings he proceeded as if he was ready and
presented the evidence as he did.
[19] The next point to consider therefore is the one
which suggests that first respondent did not take into
account and apply his mind properly to the evidence
properly placed before him. The applicant for instance
has set out in detail the step it took in counselling
the third respondent but it does not suggest that, it
had put before the first respondent the same evidence.
[20] Applicant further attacks First respondent on the
following grounds: The first respondent was advised of
the fact that the third respondent had a final written
warning on file for poor performance. I cannot on the
first respondent's written award find that that point
was raised. The other ground is that the first
respondent appears to have simply accepted the evidence
of third respondent in preference to the evidence
presented by Matela for no grounds or reason
whatsoever. A further concern raised is that the first
respondent finds in his arbitration award that
dismissal for poor performance can be classified as no
fault dismissal because it arises from circumstances
for which it is not to blamed. Before I finalise my
concluding remarks here, I need to depart for a moment
in one instance where it is said that the first
respondent should have adjourned the proceedings to
enable the applicant to present the necessary
documentation. There is no evidence which can suggest
that Matela sought postponement so that he could
furnish documentary evidence and that such request
was/...
was refused.
[21] Therefore this attack has no basis and falls to be
rejected. The respondent did not make a factual
finding or a statement of law that the third
respondent's dismissal is a "no fault" dismissal.
Instead this is what appears in his award, he says:
"The dismissal for incapacity or poor work performance
has come to be accepted in our labour law as a nofault
dismissal because it arises from circumstances for
which the employee is not to blame"
and in this regard he specifically says "see John
Grogan in Workplace Law, 2nd ed. p134".
[22] As far as disregarding evidence properly placed
before him the first respondent has given reasons for
each and every conclusion he arrives at. In a review
application the judge is not dealing with an appeal,
the correctness of the decision in other words but he
is dealing with the process by which the person whose
decision is being reviewed has arrived at his or her
decision. It might well be that placed in the same
situation as that person you may have arrived at a
different conclusion but it is not your role to
substitute your decision for his or hers unless the
process through which the decision was arrived at is
such that it does not pass the constitutional review
mask.
[23] If one has consideration to the grounds set out in
the notes/..
notes founding affidavit of the applicant, the first
respondent is accused not only of failing to take into
account evidence properly placed before me but also of
failing to solicit enough evidence from the applicant's
representative in the proceedings. There is no factual
or legal basis to conclude that the first respondent
did not apply his mind to the evidence properly placed
before him. Secondly, there is no factual basis or
justification advanced as to why respondent should have
solicited the evidence which is alleged he did not
solicit and if he had the rights to do so how far he
should go. It is quite true that the Act enjoins
commissioners appointed by CCMA to conduct arbitration
proceedings with less legal formalities but even that
has got limits as to how far the commissioner can
forego the legal formalities.
[24] I am aware that in this case if the applicant made
a case as far as the postponement was concerned, my
conclusion would be different to what I have arrived
at. Other than that I have indicated that if applicant
contends that there was evidence which is not reflected
in the notes of the commissioner or in his award, it
was up to the applicant to ensure that at least a copy
of the record is before court. In the normal course of
events where a party is reconstructing a record, he or
she will compare the notes which he or she took during
those proceedings and compare it with the notes of
other interested parties who were present there. In
this instance it would have made sense that after
compiling the notes, if there were contemporaneous
notes/..
.
notes taken, he would ask for the notes of the
commissioner, the first respondent in this case,
which are readily available and from there
construct a record. In the absence of that I
cannot deal with the dispute of fact which is
raised on these papers and which was not raised
before the commissioner. To illustrate this point, at
page 11 of the applicant's founding affidavit for
instance is set out what steps were taken to help
the third respondent. It is said that the third
respondent was in fact counselled, trained and
given guidance over a period of more than four
months. The third respondent was in all aspects
assisted and trained in order to enable her to
remedy her poor performance and prevent further
action to be taken against her. That evidence might
be coming for the first time to court, there is no
justification in law to say this evidence was
presented to the first respondent and that he did not
note it.
[25] The other point raised by the applicant's papers
is that the first respondent did not justify his award,
namely the reinstatement and the compensation. I need
only say that it is now settled how the commissioners
should exercise their discretion in terms of section
193 and section 194 in the leading case of Johnson and
Johnson. At paragraph 41 Froneman DJP had the
following to say:
"The compensation for the wrong in failing to give effect
to an employee's rights to a fair procedure is not based
on patrimonial or actual loss, it is in the nature of a
solacium for the loss of the right and is punitive to the
extent that an employer who breached the right must pay
a fixed penalty for causing that loss. In the normal
course a legal wrong done by one person to another
deserves some form of redress.The party who committed
the wrong is usually not allowed to benefit from external
factors which might have ameliorated the wrong in the
same way or another."
He goes further to say that:
"The nature of an employee's right to compensation
under section 194(1) also implies that the discretion
not to award that compensation may be exercised in
circumstances where the employer has already provided
the employee with substantially the same kind of
redress".
[26] In my view the commissioner again has justified
how he has arrived at the conclusion and for these
reasons I have come to the conclusion that the
applicant has failed to discharge that the decisions of
the first respondent are reviewable and therefore the
application falls to be dismissed with costs.
ACTING JUDGE NGWENYA
LABOUR COURT OF SOUTH AFRICA
ON BEHALF OF APPLICANT : ADV A J NEL
Instructed by : Snyman van der Heever
Heyns
ON BEHALF OF 3RD RESPONDENT: MR ALFREDPLAATJIE
Instructed by : Hotelicca
DATE OF JUDGMENT : 10 SEPTEMBER 1999