JR946/01-mc
Sneller Verbatim/mc
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR946/01
2001-10-22
In the matter between
Applicant
and
1st Respondent
2nd Respondent
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J U D G M E N T
__________________________________________________________
LANDMAN J: Süd Chemie (Pty) Limited, dismissed its HR manager Mr Quitshana in
April 2000 after a disciplinary tribunal found him guilty of insubordination. An
internal appeal was unsuccessful. The parties thereafter agreed to refer the
dispute to private arbitration in terms of the Arbitration Act 42 of 1965.
Mr W T Mothuloe was appointed the arbitrator. The arbitrator delivered a
lengthy award and found that the dismissal of the employee was procedurally
unfair and that this was the end of the inquiry. He therefore found it unnecessary
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to find whether the dismissal was substantively unfair. He awarded the employee
compensation in the amount equivalent to 10 times his monthly salary.
Süd Chemie has launched an application in terms of section 33 of the
Arbitration Act to set aside the award. Although the commissioner did not make a
finding on the substantive fairness of dismissal, he was clearly of the opinion that
the offence of insubordination had been committed and that it was a serious
infraction. He also thought, although it was not necessary for him to decide this,
that the sanction was too severe.
The arbitration award sets out the employee's complaint about the
procedural unfairness of his dismissal.
The notice of appeal to the internal appeal tribunal sets out in some detail
the complaints of the employee relating to the hearing before the disciplinary
tribunal. The employee based his appeal on the following:
"I respectfully submit that the hearing was procedurally unfair in that the party
prosecuting the case, Mr L C Dalton, was also the only witness against me.
The chairperson erred in dismissing me on the evidence which was lodged on
hearsay presented by Mr Dalton with no attempt to call the witnesses involved, to
enable me to cross-examine them.
I further respectfully submit that the chairman in the way in which he conducted
this matter from the outset, clearly indicated that he was biased in favour of the
company and that the outcome of the hearing was a foregone conclusion."
The employee was also dissatisfied with the fairness of the appeal hearing.
He set this out in a document entitled "Reply to written summary by chairman of
appeal hearing". He said:
"It is not, with respect, the chairman of the appeal hearing's duty to correct the
deficiencies in leading further evidence to clarify issues which should have been
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addressed at the disciplinary hearing.
I respectfully submit that to do so would be a gross irregularity and would confirm
my suspicions that my dismissal is a foregone conclusion and that this appeal is
merely designed to give the impression that my dismissal was procedurally
substantive and fair."
and:
"I note with interest that the chairman of the appeal hearing has failed to address
any of the points raised in my notice of appeal under the question of substantive
fairness and, insofar as an offence may have been committed, the fairness of the
sanction imposed. Instead the chairman of the appeal hearing has now raised an
alleged previous written warning which does not exist and in respect of which no
evidence whatsoever was led in the disciplinary hearing. The written warning to
which reference is made is no more than an office memo which was never
intended to be a written warning as alleged."
The arbitrator deals with the question of the procedural unfairness of the
dismissal and he says in his award that Mr Dalton, the principal witness, engaged
the assistance of Mr Louis Clarke, to preside over the disciplinary hearing. Two
charges were preferred against the employee. Both of them were about the same
facts. He notes that Mr Dalton said that he had made out a charge-sheet. But the
arbitrator says that the disciplinary chairperson, Mr Clarke, testified that Mr Dalton
came to see him, or called him to his office, discussed the matter and that he, Mr
Clarke, assisted Mr Dalton to formulate the charges as well as to arrange
administrative matters relating to the disciplinary hearing.
The arbitrator also notes that the chairperson of the hearing, dismissed the
objection of the employee who was complaining about the duplication of charges,
but thereafter Mr Dalton relented and abandoned to one charge. The arbitrator
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then notes the complaint which is set out in the employee's documents, that Mr
Dalton was the prosecutor and a single witness.
The award traverses, in more detail, the question of the charge-sheet. When
the arbitrator was investigating and evaluating the evidence of Mr Dalton and Mr
Clark, he set out certain admissions which merely reinforce what I have said
above.
Then the arbitrator finds:
"Dalton himself now says that when the applicant breached the instruction that he
had specially given to him, the trust relationship broke. Consequently I asked
myself this question: Was the applicant brought to the disciplinary hearing and
charged with this one charge of insubordination merely to create the window
dressing to convict him of that charge and the rest that proceeded the hearing."
The arbitrator sets out certain practice which caused him to hold this opinion
and continues:
"Admittedly there is no evidence placed before me to answer this question
unequivocally in the positive. However, there are suggestions in the evidence
before me that the question is pregnant with substance. For example the poor
relations between the threesome and the foregoing factors in themselves."
The arbitrator considered and rejected the employee's complaint that
because Mr Dalton was the sole witness, prosecutor and representative of the
company, that this gave rise to an unfair hearing. He did this although he was not
entirely comfortable with Süd Chemie's failure to have arranged for a modest, yet
acceptable disciplinary procedure, presumably to be conducted by an outside
person. The arbitrator noted that the employee's attorney had not taken the point
that cross-examination was not allowed but the arbitrator found that this
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contributed to an unfair hearing.
The arbitrator also found the hearing to have been irregular because the
chairperson guided Mr Dalton in the formulation of the charges and with the
administrative details pertaining to the disciplinary inquiry. This led the arbitrator
to find that the dismissal had been procedurally unfair. The arbitrator adopted the
sanction for procedural unfairness as contemplated in the Labour Relations Act 66
of 1995 and awarded the employee compensation.
The parties chose the arbitrator and there is nothing irregular in regard to
his finding that the disciplinary hearing was unfair, even though he appears to
have been satisfied that the misconduct had been committed. That of course
does not preclude him from finding that the hearing was procedurally unfair.
On the face of it there are no grounds to interfere with this finding.
However, Süd Chemie alleges that the arbitrator committed misconduct in the
arbitration proceedings as he was biased against the company.
It is correct that the arbitrator descended into the arena. He also took at
least one point which the employee had not taken with regard to the procedural
fairness of the dismissal. He expressed himself clearly that in his view the
dismissal was part of a fixed resolve of the company to rid itself of the employee;
and, to some extent it, may be inferred that he regarded the disciplinary hearing
to have been something of a sham. Süd Chemie says that the arbitrator had
decided in advance that the employer had not been accorded the respect which
an employer of his seniority deserved. This was a relative consideration. Whether
the arbitrator made too much of it is not a matter for this court to decide. The
arbitrator was following a line of inquiry as the evidence unfolded. It was relevant
to his final decision and was not improper for him to follow this line.
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The arbitrator's description of Ms Cadwell as "impressionable and
feebleminded" may have been harsh. Not having heard the evidence I am not
able to say that it was actuated by ill motives. Certainly the relationship of
godfather, goddaughter between Mr Dalton and Ms Cadwell aroused some
suspicion in the mind of the arbitrator. Once again I cannot say that it was
improper or irregular for him to have borne it in mind. It was important for the
arbitrator to examine the reasons for the dismissal, including the motivation of the
company.
It does seem that the arbitrator was sharp-tongued coming towards
Ms Cadwell and Mr Dalton. In Mr Dalton's case it may have something to do with
the tone of his voice when he answered questions put to him by the arbitrator.
There is a hint that this may be so on the record.
Once again I did not hear the evidence and I cannot say that there was
anything improper. I do not wish to be understood to say that I am in agreement
with the arbitrator in the way he reasoned and expressed himself in his award. In
certain circumstances this may be an indication of bias but on reading the award
and the record I do not get this impression.
Süd Chemie's attorney who represented it at the arbitration proceedings did
not object to the arbitrator's conduct in any way. The arbitrator's award, his
reasoning and his remarks in the award is the main complaint company's
allegation of bias. I am unable to come to the conclusion that the arbitrator was
biased.
Süd Chemie also relies on two other grounds to attack the award, but they
do not go to procedural unfairness and therefore it is unnecessary to go into them.
The result is that the finding of procedural unfairness and that the award of
compensation is such that it cannot be disturbed.
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In the premises therefore, the application cannot succeed and it is
dismissed.
______________________
A A Landman
Judge of the Labour Court of South Africa
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