IN THE LABOUR COURT OF SOUTH AFRICA
CASE NUMBER : J3461/98
In the matter between :
JOSEPH PELLETIER Applicant
and
B & E QUARRIES (PTY) LIMITED
Respondent
CASE NUMBER : J3822/98
In the matter between:
B & E QUARRIES (PTY) LIMITED Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First
Respondent
LOUISE CHAROUX Second
Respondent
JOSEPH PELLETIER Third
Respondent
__________________________________________________________________
______
J U D G M E N T
__________________________________________________________________
______
KENNEDY AJ :
[1] Two related applications have been brought before me.
Both arise from an arbitration award handed down by a
Commissioner of the Commission for Conciliation, Mediation and
Arbitration (" the CCMA "), Ms Louise Charoux (" the
Commissioner"). In her award, dated 2nd October 1998, the
Commissioner found that the dismissal of Mr Pelletier was
substantively unfair, and ordered his former employer, B & E
Quarries (Pty) Limited (" the employer"), to pay him an amount
equal to four months remuneration.
[2] The first application before me, bearing case number
J3461/98, was brought by Mr Pelletier and seeks an order in
terms of section 158(1)(c) of the Labour Relations Act No 66 of
1995 ("the Act"), to make the Commissioner's award an order of
Court. This was followed by a separate application, brought by
the employer, under case number J3822/98, in which the
employer seeks to have the Commissioner's award reviewed and
set aside under section 145 of the Act. The review application is
the basis on which the employer resists Mr Pelletier's application
to have the award made an order of Court. It was agreed during
argument that in the event of the review being unsuccessful, the
award should be made an order of Court. I shall accordingly now
proceed to deal with the various grounds advanced on behalf of
the employer in support of the review application.
[3] Two of the grounds raised by the employer relate to the
conduct of the arbitration proceedings. The first objection is that
the Commissioner should not have sat as the arbitrator in the
proceedings. The second relates to the failure by the
Commissioner to exclude Mr Pelletier's attorney from the
proceedings.
SHOULD THE CONCILIATOR HAVE ACTED ALSO AS
ARBITRATOR?
[4] The objection to the Commissioner sitting as arbitrator
arises because she had previously acted as the Commissioner
during the stage of conciliation which preceded arbitration, and
because, at the end of the conciliation proceedings, she made a
number of statements reflecting her preliminary views on the
merits of Mr Pelletier's claim. She indicated to the employer's
representatives that in her view the employer had been " too
harsh" in deciding to impose the sanction of dismissal, and that
an arbitrator at any forthcoming arbitration proceedings would
"probably see it in the same light".
[5] In a statement filed by the Commissioner, she does not
deny having made the remarks attributed to her, but places them
in the following context:
"As Commissioners usually arbitrate their conciliations
this is an area where particular care is taken, not to be
perceived as predetermining the dispute before evidence
is led in the matter. I do at the conciliation phase explain
the law to the parties and indicate what an arbitrator will
probably consider at the arbitration proceedings. This is
in order to assist parties in making an informed decision
during the conciliation process. I wish to point out that if
the [employer] did not feel comfortable with me
arbitrating the dispute, they should have applied in terms
of section 136 of the LRA for another arbitrator to do the
case, which they failed to do."
[6] Section 136(2) of the Act specifically provides that a
Commissioner who has attempted to resolve the dispute through
conciliation may also sit as the arbitrator in respect of the same
dispute. This is subject to the provision in section 136(3) that
any party to the dispute who wishes to object to the arbitration
being conducted by the Commissioner who had attempted to
resolve the dispute through conciliation may do so by filing an
objection in that regard with the CCMA. Section 136(4) obliges
the CCMA, when it receives such an objection, to appoint another
Commissioner to resolve the dispute by arbitration.
[7] In the present matter, no such objection was lodged on the
part of the employer to the Commissioner sitting as arbitrator.
During argument, Mr van Zyl, who appeared for the employer,
acknowledged that such an objection could and perhaps should
have been raised prior to or at the commencement of the
arbitration proceedings. However he submitted that this did not
preclude the employer from raising the objection thereafter. He
submitted further that it was improper in the circumstances for
the Commissioner to have sat as arbitrator and that she should
have recused herself mero motu. The reason advanced for this
by Mr van Zyl was the statements made by the Commissioner at
the conclusion of the conciliation proceedings, which, according
to the deponent to the founding affidavit, had the result that the
Commissioner's " judgment was slanted and/or had
preconceived ideas pertaining to the merits of the
dismissal."
[8] I accept that it may in some circumstances be appropriate for
Commissioners mero motu (or where a proper objection is
raised) to recuse themselves before sitting as arbitrators in
disputes where they have attempted to conciliate the dispute. In
my view however, there is no merit to the objection raised by the
employer in the present matter. Although the Commissioner's
explanation may not be completely satisfactory in all respects, it
appears to be clear that what she is intending to convey is that
she did not prejudge the matter before evidence was led during
the arbitration, but had merely conveyed her prima facie views
to the parties, based on the information she had been given
during the conciliation proceedings, with a view to their
considering their position for possible settlement during the
conciliation stage.
[9] It is in my view unrealistic to suggest that a conciliator may
not come to some prima facie views on the prospects of
success, or that it is improper for the conciliator to convey this to
the parties and, if conciliation fails, later to sit as arbitrator.
Section 136(2) of the Act specifically provides that a
Commissioner who has acted during the conciliation stage may
also act as arbitrator. If a party wishes to object to the
Commissioner sitting as arbitrator, on grounds such as those
raised in the present matter, it is in my view ordinarily incumbent
upon the party to raise such an objection before the arbitration
takes place, in terms of section 136(4) of the Act. The employer
has not offered any explanation why this was not done at that
time. If its representatives had genuinely believed that the
arbitrator had prejudged the matter and had a closed mind, it is
highly likely that they would have raised such an objection at the
outset. Their unexplained failure to do so at the time suggests
that the objection has been raised as an afterthought. In my
view, the employer cannot now legitimately raise the objection. I
am not persuaded that any impropriety or injustice occurred in
this regard.
THE FAILURE TO EXCLUDE THE ATTORNEY FROM THE
ARBITRATION PROCEEDINGS
[10] The next objection raised by the employer is that the
Commissioner acted improperly in failing to exclude Mr Pelletier's
attorney from the arbitration proceedings. At the outset of those
proceedings, the employer's representative (a lay person)
objected to Mr Pelletier being represented by his attorney, Mr van
Rensburg. Mr van Rensburg argued before the Commissioner
that the matter was of such a nature that his client should be
allowed to be represented by his attorney under section 140(1)
(b). This was refused by the Commissioner, who did however
state the following:
"I, however, have no objection to his representative, Mr
van Rensburg, sitting in on the matter and if there is any
questions that you [i.e Mr Pelletier] wish to raise with him
or things you wish to discuss with him I will give you the
opportunity to go out and speak with him on the matter."
[11] Accordingly, Mr van Rensburg remained at the side of Mr
Pelletier during the proceedings. On a few occasions he made
remarks which are recorded in the transcript. In my view, what
he stated on each occasion was innocuous and appears to have
been either to clarify something for his own mind, or to assist to
clarify a point of confusion for others. On only one occasion
(recorded at page 245 of the record, lines 8 to 13) did his
intervention involve anything more than a few words and on that
occasion he was attempting to clarify confusion regarding dates.
This was allowed by the Commissioner. Mr van Zyl submitted
that this was improper. He acknowledged that the Commis-
sioner had a discretion whether or not to allow legal
representation, but submitted that once this discretion was
exercised in disallowing legal representation, the Commissioner
did not have any discretion to allow the attorney to say anything
at all.
[12] In my view, the approach suggested by Mr van Zyl is
unduly formalistic. By allowing the attorney to remain in the
room and on a few occasions to make a few remarks, the
Commissioner did not act in my view improperly or irregularly in
the sense that this could constitute a ground to justify reviewing
and setting aside the proceedings. It does not appear that any
injustice to the employer resulted from what occurred in this
regard. Accordingly, in my view, this ground of review has no
merit.
THE ARBITRATOR'S APPROACH TO THE PREVIOUS FINAL
WARNING
[13] A number of further grounds of review were raised which
can conveniently be dealt with together. They relate to a final
warning which was issued to Mr Pelletier in an incident which
preceded the final incident which resulted in his dismissal. The
background facts relevant to this aspect are briefly the following.
During July 1997, the employer issued Mr Pelletier with a first
written warning arising from his absence from work on the 13th
July 1997. There was a further incident of alleged misconduct
during October 1997, which led to Mr Pelletier being subjected to
a disciplinary enquiry. At the conclusion of that enquiry, on 21
November 1997, Mr Pelletier was found guilty of gross
insubordination and being absent without leave. He was issued
with a final written warning. He did not appeal against the
findings or the warning which was issued. He did however refer a
dispute relating to that warning to the CCMA. That came before
Commissioner Cloete for conciliation during March 1998. It is
uncertain on the papers what exactly occurred before
Commissioner Cloete. The employer states that he found that he
had no jurisdiction to deal with the matter as Mr Pelletier had in
the interim been dismissed. Mr Pelletier in his answering affidavit
states that he does not recall this, but he states that he does
recall the employee's representative making application for a
postponement to which he consented. On either version, it is
apparent that Mr Pelletier did not pursue the matter as a
separate dispute, but raised it again only in the arbitration
proceedings which arose from his dismissal. Subsequent to the
outcome of the disciplinary enquiry held in November 1997, there
was a further incident: Mr Pelletier was again absent from work
on the 22nd January 1998 when he want to the Department of
Labour to lodge various complaints against his employer. This
absence resulted in his being charged with being absent from
work without permission. The disciplinary enquiry was held on
26th January 1998. He was found guilty of the charge of
misconduct. The fact of his previous written warning was taken
into account, in dealing with the issue of punishment, and a
decision was made that he should be dismissed. It was that
decision which he then referred to the CCMA for conciliation
before the Commissioner on 3rd April 1998. Thereafter the
matter came before the same Commissioner in arbitration
proceedings which were held on the 14th September 1998.
[14] During the course of the arbitration proceedings, the
Commissioner allowed a substantial amount of evidence to be led
by Mr Pelletier in relation to the events leading up to the issue of
the final warning in November 1997. At one stage during the
proceedings, the Commis-sioner appears to have acknowledged
that the fairness or otherwise of the final written warning was not
an issue to be decided by her. She posed the question to Mr
Pelletier (at p 248 of the record) as to why he thought the
disciplinary enquiry of the 21st November was unfair and then
made the remark " Well, not that that is going to be the
matter here before me today, because the one before me
is when you were dismissed. " Notwithstanding this, the
Commissioner allowed Mr Pelletier to give a great deal of
evidence about this issue. Indeed, as Mr van Zyl for the
employer correctly pointed out, most of the evidence led related
to the charge and disciplinary enquiry of November 1997, rather
than that relating to the events in January 1998, which
culminated in Mr Pelletier's dismissal.
[15] In her award, the Commissioner referred to the evidence
relating to both disciplinary hearings, i.e that on 20th November
1997, and that on the 26th January 1998. She dealt at length
with the evidence of Mr Pelletier regarding the reasons for this
absence during October and November 1997. The Commissioner
concluded in that regard:
"On the evidence before me it was unfair on the part of
the [employer] to give [Mr Pelletier] a final written warning
under the circumstances. He produced a doctor [sic]
certificate to confirm that he was hospitalised."
In relation to the disciplinary hearing conducted in January 1998,
in which he was found guilty, the Commissioner stated the
following:
"At this point in time [Mr Pelletier] was working for the
[employer] in Johannesburg. Mr Pelletier testified that on
22 January 1998 he left his workplace to report certain
alleged unfair labour practices practised at the [employer]
to the Department of Labour. Mr Pelletier said that when
he told Mr Frank le Roux, the workshop manager that he
was going to the Department of Labour, Mr le Roux `cut
the line`. He also said Mr le Roux said he could go. Mr
McNamara, the manager in Johannesburg, testified that
Mr Pelletier was supposed to report to him and not to Mr
le Roux. [Mr Pelletier] said his instructions from Mr Thiele,
the workshop director was that he had to report to either
Mr le Roux or Mr McNamara. It is unclear whether Mr le
Roux granted permission or not. If it was not granted, I
believe it was unreasonable not to grant the permission.
The Department of Labour is open during office hours
only. On the evidence before me, [Mr Pelletier] told Mr le
Roux that he was going to the Department of Labour. I
find on the evidence produced that the dismissal of [Mr
Pelletier] on 26th January 1998 was substantively unfair."
[16] Mr van Zyl raised a number of objections to the
approach of the Commissioner in this regard. First, he submitted
that the Commissioner had lacked the jurisdiction to hear
evidence relating to the previous written warning, and by
allowing such evidence to be heard, acted in a manner which was
grossly irregular and ultra vires . Second, he submitted that,
even if such evidence could be led, the Commissioner had acted
improperly in making a finding on the fairness or otherwise of the
warning. The third argument was that even if the Commissioner
was properly entitled to consider the validity of the final warning,
she "could not have done so in a proper and/or objective
and/or rational fashion based upon the lack of evidence at
the [Commissioner's] disposal during the course of the
arbitration proceedings."
[17] In my view there is some merit in Mr van Zyl's
submission that the question of whether the final written warning
was fair or not was not a matter for determination by the
Commissioner. The dispute which had been referred to the
Commissioner first for conciliation and thereafter for arbitration
was confined to the dismissal during January 1998. As noted
above, Mr Pelletier had on 22 January 1998 (the day he was
absent from work) referred the previous dispute regarding the
alleged unfairness of the prior warning (and various other
complaints which he had regarding his treatment) to the CCMA.
That dispute came before Commissioner Cloete in March 1998,
but appears not to have been pursued. A separate dispute was
referred to the CCMA arising from his dismissal. The form
submitted by Mr Pelletier on the 5th February 1998 referred to
the dispute as being one concerning "unfair dismissal", for
which he sought compensation. After conciliation attempts
before Commissioner Charoux failed, he submitted the necessary
form requesting arbitration, in which he again defined the dispute
as concerning " whether the termination of the Applicant's
services constituted an unfair labour practice ". Although
Mr Pelletier presumably regarded the issuing of the warning as
being one of the relevant events leading up to his dismissal, it
does seem to me that there is some merit in Mr van Zyl's
argument that the challenge to the fairness of the warning was a
separate issue from that referred to Commissioner Charoux.
[18] However, even if it is accepted that the
Commissioner erred in allowing evidence and making findings on
the fairness of the final warning, it does not in my view
necessarily follow that this vitiates the entire award or that it
renders it liable to be set aside on review. While the
Commissioner made a definite finding to the effect that the
issuing of the final written warning was unfair, that was not the
only reason on which she concluded that the dismissal was
unfair. In other words, she did not find the dismissal was unfair
merely or exclusively because the employer relied upon an unfair
previous warning in dismissing Mr Pelletier. The Commissioner
made a further finding which she regarded as justifying the
conclusion that the dismissal was unfair, namely that Mr Pelletier
either had permission to be absent from work, or, if this was not
granted, it should have been granted and that in the
circumstances it was unfair to dismiss him. This justification
exists independently of the earlier finding that the previous
warning was unfair. Had the Commissioner not made any such
finding on the previous warning, it is apparent from her award
that she would in any event have concluded that the dismissal
was unfair for the other reason, being that permission was or
should have been granted for Mr Pelletier's absence on 22
January 1998.
[19] Professor Baxter in Administrative Law at p 520
to 521 gives a useful analysis of the question, which he poses
and answers in the following terms:
"A public authority will often base its decisions upon a
variety of factors, rather than one alone. Does the
presence of one or more impermissible reasons for his
action render the action invalid even if these are also
accompanied by permissible reasons?
The answer seems to depend upon the degree to which
the bad reason (or reasons) has infected the act in
question. Judges have used various tests to express this:
it is said that the act will be vitiated if the bad reason was
a `substantial', `material', or `the dominant', factor
motivating the decision or if, together with a good
reason, it `cumulatively' led to the decision to act being
made... Where it is impossible to distinguish those
reasons which were decisive from those which were not,
and one or more of the reasons are bad, the Court has no
choice but to set the decision aside....
It is submitted that the test might better be formulated in
the following way: would the authority, had it not been
actuated by the bad reason or reasons, have reached -
and been legally able to reach - the same decision upon
the basis of the remaining, permissible reasons? The
question is hypothetical and its answer involves some
speculation. Nevertheless, by characterising it in this
way the public authority is not penalised for insignificant
errors when it would have reached the same decision
anyway. If permissible reasons for the decision still
remain and they would still have dictated the decision, no
prejudice has been suffered."
This approach finds support in Congress of South African
Trade Unions v District Magistrate of Uitenhage 1987 (2)
SA 102 (SE) at 110 B - D
[20] The fact that much of the time spent during the
arbitration proceedings involved evidence relating to the
previous warning, cannot in my view be decisive. It would
appear from the Commissioner's award that if she had not
considered and decided, in Mr Pelletier's favour, the issue of the
previous warning, she would in any event have for a different
reason found that the dismissal was unfair. This is apparent from
her finding that Mr Pelletier had either been given or should have
been given permission to be absent. Even if the matter had been
approached on the basis that the final warning was valid and
could be relied upon by the employer, the same result would
have followed.
WAS THE COMMISSIONER'S FINDING RATIONALLY
JUSTIFIABLE?
[21] The next issue which then arises - and on which the
employer has raised a further challenge in the review - concerns
the Commissioner's finding that it was unfair to dismiss Mr
Pelletier for his absence on 22 January 1998 because permission
either was or should have been granted for Mr Pelletier's
absence. Mr van Zyl submitted that the Commissioner's decision
in this regard was not rationally justifiable. He referred to a
number of contradictory elements in the evidence. In his
evidence in chief in the arbitration proceedings, Mr Pelletier said
that he had phoned his supervisor Frank Roux (referred to in the
Commissioner's award as Mr le Roux) and that he had told him
that he was leaving for the Labour Department. He continued:
"He [Roux] say Ok and then he ... (indistinct). So then
presume he told me Ok to go, that I can go... " (page 251 of
the record).
When asked by the Commissioner whether he had thought that
he had permission, Mr Pelletier said:
"Yes, he say Ok... Frank Roux." (page 252)
Mr Pelletier was cross-examined during the arbitration
proceedings by Mr McNamara on behalf of the employer. The
following was stated in this regard (at p 256):
"When you said ... you told Frank and you asked him to go
to labour, did you ask him or did you tell him? - I tell
him, `Frank, I am going to the Labour Department'.
So you did not ask him to go? - No, I said I am going so he
knows I am going. I let him know".
[22] Mr Roux did not testify before the Commissioner.
However the employer's witness, Mr Bosman handed to the
Commissioner two statements made at the time of the
disciplinary enquiry. The one, made by Mr Pelletier and signed
on the 26th January 1998, read:
"J Pelletier states that he phoned Frank Roux and
informed him that he was going to Manpower. I did not
ask permission to do so nor did Frank Roux give his
permission."
This was not put to Mr Pelletier during cross-examination before
the Commissioner, but it appears to be consistent with the
concession he made during cross-examination by Mr McNamara
referred to above.
The statement of Mr Roux read as follows:
"Joseph Pelletier phoned me and told me he was just
dropping everything off by the machine and he is going to
Manpower. I tried to talk to him about going to
Manpower and asked him if we could not sort out
ourselves. He said he didn't want to speak to me or R Till
(fleet director). He has enough of being shouted at in
Ladysmith, PE and JHB that he got treated worse than a
dog and that there is nothing to talk about and that he is
going to Manpower."
[23] During argument for the employer, Mr van Zyl
criticised the Commis-sioner for failing to deal with the evidence
relating to this issue and in particular the evidence in the form of
Mr Pelletier's statement specifically admitting that permission
had not been granted. He submitted further that the
Commissioner had ignored the statement altogether. In my view,
this criticism goes too far. The Commis-sioner's reference to this
aspect in her award does seem to me to be unfortunately cryptic.
However, there is in my view no basis to infer from the lack of a
specific reference to Mr Pelletier's written statement that she
ignored it altogether or failed to apply her mind properly to the
matter. What the Commissioner appears to have had in mind
was that regardless of the contradictory evidence in relation to
the issue, even if it is accepted that no permission was granted
(which appears in my view to have been an appropriate
conclusion), the permission should have been granted. In other
words, even if Mr Roux was not asked for and did not give
permission, the employer should have allowed him to go or at
least have tolerated his absence and not have dismissed him for
this reason. It is of interest in this regard to note that the
affidavit of Mr Zunckel, a member of the employer's
management who acted as the Chairperson of the disciplinary
enquiry, stated that:
"During the course of the disciplinary enquiry it was never
contended on behalf of the [employer] that [Mr Pelletier]
was not allowed to approach the Department of Labour or
the CCMA at all. Indeed, had [he] followed the proper
procedure consent, in all likelihood, would have been
granted to [him] to proceed to the Department of Labour
at a specific time and/or day."
[24] It is clear in my view that the Commissioner
considered that dismissal was excessive and therefore unjustified
in the circumstances where Mr Pelletier had failed to obtain
permission before absenting himself from work on the day in
question. If this were an appeal, there may well have been
considerable merit in an argument that the approach of the
Commissioner was wrong, that greater weight had to be attached
to the importance of management asserting its authority and
discipline to ensure that its employees did not leave without
obtaining permission, and particularly given the history of
previous such incidents, that dismissal was justified. In my view,
there would have been much to commend such an argument if
this were an appeal, but it is not. It is important to bear in mind
in review proceedings the reminder posed by Froneman DJP in
Carephone (Pty) Limited v Marcus N.O and Others (1998)
19 ILJ 1425 (LAC) at 1434 C - E, para 32 , that
notwithstanding the widening of the scope of judicial review
under the new Constitution, there remains a very clear distinction
between reviews and appeals. At 1435 B - C para 36, the
learned Deputy Judge President stated that a review judge must
remain "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 test was posed in
these terms:
"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? " (at 1435 E - F
para 37).
See also: County Fair Foods (Pty) Limited v Commission
for Conciliation, Mediation and Arbitration and Others
(1999) 20 ILJ 1701 (LAC) at 1706 D - 1707 B, paras 9 and
10; p 1712 G - I, paras 26 and 27 and p 1715 J to 1716 G,
paras 42 to 44;
Coetzee v Lebea N.O and Another (1999) 20 ILJ 129 (LC) at
133 D - F
[25] I am of the view that while the Commissioner's
approach in the present matter may well be subject to criticism in
various respects, there was no error of such a nature which no
reasonable Commissioner might have made. There is in my view
a rational basis for her conclusion that dismissal was unjustified.
I therefore conclude that there is no justification for setting aside
the award of the Commissioner.
[26] Accordingly I grant the following orders:
(a) In case number J3822/98: the application is
dismissed.
(b) In case number J3461/98: the arbitration award of
CCMA Commissioner Charoux dated 2 October 998 in CCMA case
number GA 25999 is made an order of Court; and
(c) the costs incurred in respect of both cases (J3822/98
and J3461/98) are to be paid by B & E Quarries (Pty) Limited.
P M KENNEDY
ACTING JUDGE OF THE LABOUR COURT
DATE OF HEARING: 19th August 1999
DATE OF JUDGMENT: 6th October 1999
Applicant represented by: Attorney C van Zyl of Van Zyl Inc, Port
Elizabeth
No appearance for First and Second Respondents.
Third Respondent represented by: Attorney M van Rensburg of
Marius van Rensburg Attorneys, Johannesburg