IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO : C1214/2001
In the matter between:
DAIRYBELLE (PTY) LTD Applicant
And
NGCOLA HEMPE N.O. First Respondent
COMMISSION FOR CONCILIATION, MEDIATION Second Respondent
AND ARBITRATION (EASTERN CAPE)
FOOD AND ALLIED WORKERS’ UNION Third Respondent
on behalf of 10 members
JUDGMENT
WAGLAY J:
[1] The Applicant seeks to have reviewed and set aside an arbitration award handed
down by the first respondent, under the auspices of the second respondent, in
which he found the dismissals of the members of the third respondent (hereinafter
“the employees”) were substantively unfair. First respondent ordered that the
employees be reinstated with back pay.
[2] The employees, who were employed as store workers in the Applicant’s cheese
factory, were dismissed pursuant to a disciplinary hearing in which they were
charged with various acts of misconduct allegedly occurring on 16, 19 and 29 May
2000. The specific offences with which the employees were charged were as
follows:
(i) they left their work stations without authorization of their superior;
(ii) they left the Applicant’s premises before the completion of their normal working
hours;
(iii) they neglected to report that their work was complete ;
(iv) they blatantly refused to comply with a lawful and reasonable instruction of their
superior; and
(v) they acted in a cheeky manner both verbally and through their attitudes towards
their superior.
[3] The outcome of the disciplinary hearing was that the employees were found guilty
of all charges of misconduct. The chairperson at the disciplinary hearing, one De
Vos who also represented the applicant at the CCMA arbitration, concluded that
the appropriate sanction was dismissal, although the employees were offered, and
refused, the choice of accepting an “Alternative to Dismissal” (ATD). Nothing
came of the subsequent appeal and they were accordingly dismissed by the
applicant.
[4] The employees referred their dispute to the second respondent, the CCMA,
alleging that their dismissals had been unfair. After conciliation failed to resolve
the dispute, the matter was referred to arbitration. At the arbitration the applicant
led the evidence of the following witnesses:
(i) Hilton Cross (“Cross”), the stores control officer;
(ii) Attie Els (“Els”), a company supervisor; and
(iii) Johannes De Vos (“De Vos”), the Applicants’ factory manager.
[5] The third respondent’s only witness was Bojile Aubrey Ndlela (“Ndlela”) one of
the dismissed employees.
[6] De Vos’s evidence was limited to reading a statement prepared by him into the
record, regarding the conduct of the disciplinary proceedings against the
employees. He, as stated earlier, had chaired that hearing. Cross and Els were the
main witnesses for the applicant. They were the employees direct supervisors and
gave evidence in respect of the misconduct with which the employees were
charged.
[7] As has been recorded above, the allegations of misconduct arose from three
separate occasions, the relevant details of which, as appear from the testimony of
Cross and Els are:
(i) On 16 May 2000, the employees:
• left work early (at 14h00, when the usual knocking off time was 15h30) without
first reporting to their supervisor;
• left work without permission of their supervisor;
• failed to obey their supervisor’s lawful instruction to return to work at 14h10
(after a twenty minute smoke break) to “throw out” eight vats of cheese;
• acted in a cheeky and disobedient manner when ordered to return to work.
(ii) On 19 May 2000, the employees:
• left work (at the usual time) without reporting to, or obtaining permission from,
their supervisors, when their scheduled tasks were not yet completed;
• acted in a cheeky manner when confronted regarding their incomplete work.
(iii) On 29 May 2000, the employees left work at 15h30 without reporting to, or
obtaining permission from, their supervisor, when their scheduled tasks were not
yet completed.
[8] Ndlela’s testimony confirms that it was customary for the employees to report to
their supervisors before leaving work for the day, however Ndlela’s evidence is in
direct conflict with that of Cross and Els in the following material aspects:
Ndlela testified that:
(i) RE: 16 May 2000
• the employees did report to their supervisors before they went home;
• by the time the instruction was communicated to the employees to empty the eight
vats of cheese, all but two employees had already left for home;
• he was neither cheeky nor disrespectful to his superiors.
(ii) RE: 19 May 2000
• at the end of the working day, the employees reported to Els, who closed the shop
and switched off the scale that they used;
• the employees reported to Els that they were going home before leaving;
• none of the employees were cheeky or disrespectful to their supervisors.
(iii) RE: 29 May 2000
• the employees had been instructed to wax five vats of cheese that day. However,
when they came to the fifth vat, they discovered that it was wet, and therefore it
was impossible to wax it. They accordingly called their supervisor, who suggested
that it be left for the following day.
• none of the employees were cheeky or disrespectful to their superiors.
• the employees did what was required of them on that day.
[9] Therefore while, it was common cause that the employees were obliged to report
to their supervisors before knocking off for the day, the real dispute before the
Commissioner (the first respondent) was whether or not the employees had
complied with the rules on the dates in question and whether or not their conduct
was “cheeky and disrespectful of their superiors”.
[10] Faced with two mutually destructive version of events, as put forward by the
applicant and the employees respectively, Commissioner was obliged to make a
credibility finding, and in doing so found that the evidence of Ndlela was to be
preferred over that of the applicant’s witnesses.
[11] The main thrust of the Applicant’s case is aimed at reviewing this credibility
finding of the first respondent.
[12] When it comes to testing the credibility finding in Van der Riet v Leisurenet t/a
Health and Racquet Club [1998] 5 BLLR 471 (LAC) at 474, the Labour Appeal
Court cited with approval the dictum in Amalgamated Beverages Industries (Pty)
Ltd v Jonker (1993) 14 ILJ 1232 (LAC) at 1209, which stated that:
“ The present appeal is one in the ordinary strict sense, i.e. a rehearing on the
merits, but limited to a consideration of the evidential material on which the
decision under appeal was given, and in which the only determination is whether
that decision was right or wrong. In that determination this Court is free, and
indeed, bound to embark on a fresh assessment of the merits based on the
evidential material before the court a quo , and to exercise its own discretion as to
what is fair and reasonable in the circumstances, at the same time having proper
regard to the findings of the court a quo as to the credibility of the witnesses who
testified before it. Food and General Workers Union & Others v Design Contract
Cleaners (Pty) Ltd (1996) 17 ILJ 1157 (LAC) at 1165 AD and the other cases
there cited.
It is therefore necessary for this Court to accord proper weight to the credibility
findings made by Roth AM, without overstating the effect of same.”
[13] Furthermore the principles enunciated in Rex v Dhlumayo 1948 (2) SA 677 (AD)
were adopted by the Labour Appeal Court in CWIU v Lennon Ltd [1994] BLLR
LAC in the following terms:
“…Those principles [set out in Dhlumayo] are based on propositions of logic and
common sense. While this court enjoys greater flexibility than an ordinary court of
appeal, even perhaps with regard to findings of fact and credibility, there must be
proper grounds for disregarding the advantage of the trial court in seeing and
hearing the witnesses and in being steeped in the atmosphere of the trial …”.
[14] The above matter relate to appeals in a review context however, the reviewing
court is even less likely to interfere with findings on credibility made by an
inferior body. Thus in the context of a review of a CCMA arbitration award it was
held, in the City of Johannesburg (Midrand Administration) v Bean NO & Others
[2002] 5 BLLR 416 (LC) at 421 CE, that:
“With regard to her [the commissioner’s] assessment of the probative value or
otherwise of the evidence presented to her and her evaluation of the credibility or
lack of it of certain witnesses who testified in the hearing, the challenge mounted
by the applicant would appear to be more the stuff of appeal than review. The first
respondent, as is always the case where issues of credibility arise, had the benefit
of direct visual and aural evaluation of the witnesses in question – the manner of
the presentation of their testimony, their demeanour in the witness chair, their
reaction to crossexamination, and so forth. Her evaluation of the substance of
their evidence was necessarily subjective and any differences of perception in that
regard do not constitute grounds for review.”
[15] The commissioner in the matter before me gave the following reasons for finding
that Ndlela’s evidence was preferable to that of the Applicant’s witnesses:
“… The evidence of Aubrey Ndlela on this matter was clear, coherent and more
probable in the circumstances. Hilton Cross and Attie Els, who despite being
clearly coached on what to say often did not answer questions as if fearing trick
questions. The employer representative Johannes de Vos in frustration had to
coach them and implore them to answer questions repeatedly. They were uncertain
and did not answer the questions asked…”
…
Attie Els and Hilton Cross were evasive and contradictory as witnesses. They
were coached with a prepared text of questions and answers. They individually
corroborated Aubrey Ndlela’s evidence. They are unreliable and their evidence
lacks credibility.
…
Aubrey Ndlela’s evidence was corroborated by Attie Els and Hilton Cross. He was
coherent witness. I accept his evidence in preference to that of Attie Els and
Hilton Cross.”
[16] The applicant argued that the commissioner’s conclusion on the credibility of the
applicant’s witnesses is reviewable as the various findings on which it is based are
“irregular and unjustifiable based upon an analysis of what actually transpired at
the arbitration proceedings”. The Applicant then goes on to analyze each of the
Commissioner’s stated reasons for his credibility finding in light of the prepared
transcript of the proceedings before the CCMA.
[17] The applicant conceded that its witnesses were coached in preparation for the
arbitration hearing and admitted that the evidence in chief of its witnesses was led
by way of prepared questions and answers. This element of the Commissioner’s
finding is thus justifiable on the basis of what transpired at the arbitration
proceedings.
[18] The applicant further suggested that the Commissioner’s failure to warn the
applicant’s representative, regarding the fact that the witnesses’ evidence was
being read would detract from the probative weight thereof, amounted to a gross
irregularity in itself. The applicant cited various authorities in support of its
contention that the Commissioner was under a duty to warn the representative of
the applicant because he was a lay person.
[19] The principle to be derived from the cases cited, as argued by Counsel for the
applicant, is that where in arbitration proceedings an unrepresented participant or
lay person presents a case, the commissioner has a strict obligation to ensure “fair
play” by assisting the party in question to understand the rules of evidence and
procedure which may have a bearing in the determination of the dispute.
[20] The Commissioner states in his award that he did in fact warn Cross of the
consequences of reading his evidence from a prepared text:
“The Employer’s first witness was Hilton Cross, the stores control officer. He read
his evidence from a prepared question and answer text. I informed him that if he
reads his response throughout the hearing I might not attach much weight to his
evidence. He then gave his oral evidence but making constant reference to the
prepared text in answering questions.”
[21] In his supplementary affidavit in terms of Rule 7A (8), the Applicant’s De Vos
denied that a warning was issued by the Commissioner to the effect that the use of
prepared notes by Cross and Els would affect the probative value of their
evidence.
[22] This is confirmed by the fact that it does not appear from the transcript of
proceedings that the Commissioner issued the warning prior to or during the
evidence of Cross and Els. Under the circumstances, it must be accepted that the
Commissioner failed to warn the applicant’s representative regarding the
diminished probative value he could attribute to Cross’s evidence should he read
from the prepared text. ( see Natal Shoes Components CC V Ndawonde (1998) 19
ILJ 1527 (LC) at 1529 DH)
[23] The applicant further attacked the remainder of the Commissioner’s findings
relating to credibility. In particular, the applicant argued that the remainder of the
reasons given by the Commissioner for his credibility finding are irrational and
unjustifiable.
[24] A reading of the record reveals that the Commissioner’s further reasons for the
credibility finding he made were well founded and rationally connected to the
facts before him. The transcript of the arbitration proceedings show that De Vos
repeatedly interjected throughout the crossexamination of the Applicant’s
witnesses. The record further indicates that De Vos did attempt to coach the
Applicant’s witnesses while they were under crossexamination. The Applicant’s
witnesses gave contradictory evidence regarding whether or not the employees
were allowed to go home early after their tasks for the day had been completed.
This aspect of Applicant’s evidence was crucial to its case. The Applicant’s
witnesses, Els in particular, were also argumentative and evasive under cross
examination. In contrast, the testimony of Ndlela was clear, coherent and
unmarred by the discrepancies that characterized the evidence of the Applicant’s
witnesses.
[25] Aside from the fact that the Commissioner’s reasons are justified on the basis of
the record, it must be accepted that the Commissioner was in the best position to
determine the credibility of the witnesses concerned. The commissioner would
have been aware of aspects of the evidence such as the demeanour of the
witnesses which will not appear from the record.
[26] Under the circumstances, the Commissioners further reasons for his credibility
finding are not susceptible to review. Accordingly the only irregularity in the
proceedings was the failure of the Commissioner to warn the Applicant that
diminished probative value would be attached to evidence based on a prepared
written text. Does this failure however constitute a reviewable irregularity within
the meaning of s145 of the Labour Relations Act?
[27] The applicant contends that the Commissioner’s failure to warn the Applicant
regarding the nature of its witnesses testimony amounted to a gross irregularity.
Since not all irregularities are gross, the question of when an irregularity will
qualify as “gross” was considered in Toyota SA Motors (Pty) Ltd v Radebe (2000)
21 ILJ 340 (LAC). After concluding that the Commissioner in the matter under
review in that case had been wrong with respect to the issue of fair sanction, the
Court went on to consider whether a reviewable irregularity had taken place. It
said:
“… The question which remains, however, is whether the third respondent [the
Commissioner] misconceived the whole nature of the question of a fair sanction
and his duties in connection therewith to such a degree that interference on review
was warranted.”
[28] The Labour Appeal Court there considered whether, despite the irregularity the
parties had been afforded a fair trial. If the answer was in the affirmative, the
irregularity could not be said to be gross. The Court thus concluded that, although
it was impossible to give precise definition of the meaning “gross irregularity”.
“… The use of the word ‘gross’ indicates that the irregularity has to be so
egrerious that a court can conclude that the function of assessing a fair sanction
has been misconceived. It is always difficult to define the extent to which the
commissioner has to deviate from the normal sanction for such to constitute a
‘gross irregularity’… The fact that precise definition is not possible of the degree
of error before a gross irregularity is committed, does not mean that the court
should not interfere where it is convinced such a gross irregularity has taken place.
[29] Therefore before an irregularity can be considered “gross” it must be such as to
prevent a fair trial of the issues. In the present matter, the Commissioner did not
base his credibility finding solely on the fact that the evidence of the applicant’s
witnesses had been read from a prepared text (It is clear that he did take this into
account as a factor). However, even if this aspect of the Commissioner’s award is
ignored, there is no doubt that the same credibility finding would have been
reached on the basis of the other, independent reasons stated in the award, namely:
• Ndlela’s evidence was clear and coherent;
• The probabilities were in favour of Ndlela’s version of events;
• The applicant’s witnesses were evasive and contradictory;
• The applicant’s representative, De Vos, coached and cajoled the applicant’s
witnesses throughout their testimony.
[30] I am thus satisfied that the Commissioner would have made the credibility finding
he did regardless of his finding on the prepared text. In addition, applicant’s legal
representative was present, albeit as an observer, for at least the relevant part of
the proceedings. Although this point should not be emphasized, it is relevant
insofar as the applicant’s representative cannot be seen as a helpless lay person
entirely without access to legal advise during the arbitration hearing.
[31] It is further noteworthy that De Vos, who read his own affidavit into the record,
was warned by the Commissioner that diminished probative value would be
attached to evidence given in this manner. De Vos however responded by insisting
that because of the time frames involved, it was not possible to recall all the
relevant facts. He accordingly read his evidence into the record. This further lends
weight to the conclusion that the failure of the Commissioner to warn the
applicant earlier in the proceedings did not prevent a fair trial of the issues.
[32] In the premises for all the reasons set out above, the irregularity in question was
not “gross” within the meaning of section 145(2)(ii) of the LRA and as the
proceedings essentially turned on the credibility findings, it follows that the
Commissioner’s conclusion regarding the incidents on 16,19 and 29 May 2000, as
well as his finding on the unfairness of the dismissals are not open to interference
from this Court.
[33] With regard to costs I see no reason why costs should not follow the result. The
matter was opposed by the third respondent who travelled from Port Elizabeth to
attend Court. The arbitration award sought to be reviewed was handed down by
the CCMA in Port Elizabeth and all the parties to this suit are from Port Elizabeth.
This notwithstanding Applicant launched this application in Cape Town. Without
making any comment on the appropriateness of the matter being referred to Cape
Town I believe that it is equitable that third respondent’s costs include its
reasonable traveling and accommodation costs.
[34] In the result the Applicant having failed to make out a case for review, the
application is dismissed with costs, which costs shall include the reasonable
travelling and accommodation costs incurred by the third respondent in opposing
this matter.
____________________
Waglay J
For the Applicant: Adv M.W. Janisch instructed by Cliffe Dekker Inc.
For the Third Respondent: M. Poyo, Union representative
Date of Judgment: 15 November 2002.