REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO: C 698/00
In the matter between:
TRUDY BETTY RABIE Applicant
and
P VAN STADEN First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION (CCMA) Second Respondent
PROVINCIAL ADMINISTRATION, WESTERN CAPE
(HEALTH DEPARTMENT) Third Respondent
JUDGMENT
NTSEBEZA, AJ:
INTRODUCTION
[1] The Applicant, Ms Rabie (“Rabie”), through her lawyers, filed an
application in September 2000 in which she applied for the following
order:
“1. An order correcting or setting aside First Respondent’s arbitration
award in terms of section 145 of the Labour Relations Act of 1995;
2. An order for costs in terms of Section 158 (1)(a)(vii) of the Labour
Relations Act of 1995, only in the event of this application being
opposed;
3. An order for further or alternative relief.”
[2] The First Respondent, whose award Rabie seeks to have corrected or set
aside, is Mr van Staden. He was appointed under the auspices of the
Commission for Conciliation, Mediation and Arbitration, the Second
Respondent (“the CCMA”) to arbitrate a dispute that had arisen between
Rabie and her employer, the Department of Health in the Western Cape,
the Third Respondent (“the employer”).
[3] The dispute had been referred to the CCMA by Rabie pursuant to a
disciplinary hearing held by her employer, the Third Respondent, as a
result whereof, she had been dismissed. Van Staden, in his official
capacity, arbitrated the matter and upheld the employer’s decision to
dismiss Rabie. It is that award that Rabie purports to challenge by her
application filed in September 2000.
[4] Argument started on 24 February 2003, on which day I heard only Mr
Fisher, Rabie’s legal representative. The matter was postponed to the
14th April 2003, when Mr Fisher continued with his argument. Mr Van der
Schyff, for the Department, presented his arguments on that day as well,
with Mr Fisher replying in a fair amount of detail. I reserved judgment. I
now hand it down.
BACKGROUND FACTS
[5] Most facts are common cause. Rabie was in the employ of the Third
Respondent, having commenced as a student nurse in 1976 and ending
up as senior professional nurse at Somerset Hospital at the time of her
dismissal. These facts, and others I will deal with hereinbelow, appear
from Rabie’s founding papers and in the employer’s answering affidavit,
deposed to by one David Labuschagne, an Assistant Labour Relations
Director in the office of the employer in Cape Town.
[6] Incidentally, from my perusal of the application by Rabie, I have found
that despite the contentious character of the responses by the employer
in Labuschagne’s affidavit, there is no replying affidavit in the file. I do not
know if any was filed, but on the index (drawn obviously by Rabie’s
lawyers), there is no provision for a replying affidavit. I therefore proceed
on the basis that none was filed.
[7] I mention this because it has implications. Where, as appeared in
argument, some dispute of fact was an issue between the parties, the law
as commended by Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd 1984 (3) 623 (A) will apply. This is one case where my decision,
on any disputed factual issue will be guided by my acceptance of all
averments made by the Applicant, not disputed by the Respondent,
together with those facts made by the Respondent.
[8] On the above approach, the facts are that on 21 January 1998, Rabie
refused to speak to a member of the public, one Strydom. She ultimately
put the telephone down whilst Strydom was still speaking to her. Strydom
laid a formal complaint against Rabie and her conduct constituted the first
charge against her in terms of which the employer charged her for
improper and unbecoming conduct.
[9] About a fortnight from this episode, Rabie had an altercation with her
senior, Mrs Henkeman, who had lawfully instructed her to return a
patient’s file. She became argumentative with Mrs Henkeman. Rabie’s
conduct towards Henkeman, according to Mr Labuschagne’s uncontested
evidence on affidavit, “ degenerated during the course of the day on 4
February 1998 to the extent that [she] unceremoniously entered
Henkeman’s office, and, in the presence of colleagues, displayed gross
insolence towards Henkeman”.
[10] Labuschagne’s sworn affidavit goes on to state that Rabie’s
“unacceptable conduct towards Henkeman continued on 4 February 1998
when she followed Henkeman and publicly verbally challenged the latter
in an insolent manner at the place of their employ”.
This conduct led to two more charges, namely, insubordination insofar
as Rabie argued with Henkeman before returning the patient’s file (the
second charge) and a further charge of disgraceful conduct – bursting
into Henkeman’s office while she was in a meeting, banging on the
door while addressing Henkeman, and publicly adopting a challenging
attitude.
[11] Rabie was informed of the charges against her. Three dates were initially
allocated for the hearing, namely 5 February 1999, 15 April 1999 and 12
May 1999. On 4 February 1999, Rabie objected to the short notice of the
enquiry. She advised that she would not be able to attend since she
needed time to arrange for legal representation. She advised that her
attorney would get in touch with the employer to arrange a mutually
convenient date. She/he never did. The enquiry was postponed to 15 April
1999.
[12] This time around, and again a day before the scheduled enquiry, Rabie
advised she would not be able to attend on the following day due to ill
health – high blood pressure. The enquiry was postponed to 12 May 1999,
inter alia, because Rabie tendered a medical certificate.
[13] Once again, a day before the scheduled date, and on 11 May 1999, Rabie
submitted a medical certificate for the period approximating the duration
of the inquiry. Once again the certificate stated that she would be unable
to attend due to ill health. All endeavours to call her at the flat by one Ms
Louw, who was to place the evidence before the inquiry, came to nought.
There was no response from her flat. The inquiry was scheduled to
proceed in the same block as where she resided.
[14] The presiding officer at the inquiry, after weighing all the facts at his
disposal, including the coincidence of Rabie’s medical certificates with the
dates of the inquiry hearings, decided to proceed in Rabie’s absence. Of
five (5) original charges that had been preferred against Rabie, only three
(3) were proceeded with, on all three (3) of which Rabie was found guilty
as charged.
[15] Thereafter, after hearing evidence in mitigation and aggravation; the
presiding officer recommended a dismissal to the Director General in the
employer’s Administration Department who effected the dismissal
sanction. Rabie, it appears, refused to note an appeal. She referred the
matter to the CCMA for arbitration on the only basis that her dismissal was
substantively unfair. The arbitration commenced on 9 March 2000, before
Van Staden, and ended on 13 June 2000. Rabie was represented by Mr
David at the arbitration, after her bid to be represented by Mr Fisher
failed, having been turned down by Stander.
[16] Stander, it appears, took the attitude that the matter before him would be
dealt with de novo, and, in consequence, the employer called seven (7)
witnesses, each of whom was cross-examined by the Applicant’s
representative. Most of the evidence was direct evidence, except the
evidence of Mr Olivier, the presiding officer at the disciplinary inquiry, who
testified in detail about Strydom’s evidence, the impression he made as a
witness and why he found as he did. It must be borne in mind that this
hearsay evidence, about which later, related only to one of the charges.
Insofar as the other two charges were concerned, Van Staden had the
benefit of Henkeman’s evidence, and that of Rabie herself.
[17] Van Staden, having heard all evidence, took time to consider his award
which he handed down on 10 August 2000 in thirty (30) pages of a
detailed analysis of the background to the case that came before him, the
evidence that was led, the arguments that were advanced, the legal
principles he considered were applicable, a consideration of the law of
evidence with regard to hearsay evidence and a consideration of case law
he considered was applicable. His conclusion was that Rabie was fairly
dismissed and was not entitled to any relief. His award, which Rabie wants
me to review and set aside, was that her dismissal on 1 August 1999 was
not unfair.
RELIEF SOUGHT
[18] I have recently, in the case of Moodley v Illovo Gledhow and Others
2004 (1) BLLR 150 (LC) para. 4 had to recall the provisions of s 145 of the
Labour Relations Act 66 of 1995 (“LRA”) which read as follows:-
“145 Review of arbitration awards
(1) Any party to a dispute who alleges a defect in any
arbitration proceedings under the auspices of the
Commission may apply to the Labour Court for an order
setting aside the arbitration award –
(a) within six weeks of the date that the award was
served on the applicant, unless the alleged defect
involves corruption; or
(b) if the alleged defect involves corruption, within six
weeks of the date that the applicant discovers the
corruption.
(1A) The Labour Court may on good cause shown
condone the late filing of an application in terms
of subsection (1).
(2) A defect referred to in subsection (1) means –
(a) that the Commissioner –
(i) committed misconduct in relation to the duties of
the Commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct of
the arbitration proceedings; or
(iii) exceeded the Commissioner’s powers; or
(b) that an award has been improperly obtained.
(3) The Labour Court may stay the enforcement of the
award pending its decision.
(4) If the award is set aside the Labour Court may –
(a) detain the dispute in the manner it considers
appropriate; or
(b) make any order it considers appropriate about the
procedures to be followed to determine the dispute.”
[19] I find that it is important to restate the position here as well, particularly
because that is the section relied upon by Rabie for her review application
and, yet, with great respect, the articulation of the basis of review by
Rabie’s lawyers is very imprecisely and widely stated. It is confused and
confusing. It has become necessary once again for me to state the legal
principles for a s 145 review application.
[20] On the basis of heads of argument submitted on behalf of Rabie
(apparently drawn by one S J Kleynhans), it was argued that I must, as far
as possible, seek to uphold the purpose and the values that underlie the
system of dispute resolution established by the LRA. “ When it is
necessary,” so go the heads of argument, “ to adopt a critical view of the
commissioner’s performance, it is because that would be justifiable both
in the interests of the CCMA as an institution, and of the broader public
who utilise its services. The parties to dispute resolution under the
auspices of the CCMA are parties to what amounts to a system of
‘compulsory arbitration’”.
[21] The Heads further state that in exercising my review powers I am required
to uphold constitutional imperatives for compulsory arbitration, namely,
that the process must be fair and equitable; the Arbitrator must be
impartial and unbiased, the proceedings must be lawful and procedurally
fair; the reasons for the award must be given publicly and in writing; the
award must be justifiable in terms of those reasons; “ and the award must
be consistent with the fundamental right to fair labour practices ”, it was
argued.
[22] Although there was reference to the usual authorities, presumably in
support of these generalised statements, I found extreme difficulty in
relating, for example, these arguments to the issue for my consideration.
For example, having chosen to arbitrate the dispute on the basis that the
issue was whether the dismissal had been substantively fair or not, I do
not see how far these Heads are advancing that premise when they
ramble about proceedings having to be “lawful and procedurally fair”.
[23] Further, and particularly in view of the fact that Rabie seeks a review in
terms of s 145 of the LRA, I found it difficult to appreciate how these
arguments – and a lot of them that came afterwards – addressed
succinctly, the basis for a s 145 review, namely that I can only review an
arbitrator’s (commissioner’s) finding if he/she:
Misconducted him/herself in relation to his/her duties as
commissioner/arbitrator;
Committed a gross irregularity in the conduct of the arbitration
proceedings;
Exceeded the commissioner’s powers; or
That the award had been improperly obtained.
[24] In my view, it is this articulation in precise terms that I did not seem to get
from Mr Fisher’s castigation of Van Staden’s conduct. For example, he
argued that Van Staden misconducted himself grossly irregularly or
improperly by not investigating the matter afresh in order to ensure the
procedural and substantive correctness of the dismissal. He seems to fault
Van Staden by not having heard all the testimonies, including that of
Olivier, Strydom, a Ms Bennett and other direct witnesses whom he lists,
with regard to the insubordination charge.
[25] Mr Fisher also charged that Van Staden acted unjustifiably and
unreasonably by dismissing Rabie by reason of a previous final written
warning for insubordination. His argument was that the final warning
dated back to 1995. Rabie had a long service with the employer of about
twenty-three (23) years. In the course of his argument, which was initially
directed at denying at all that a finding of guilt was appropriate for any of
the three (3) charges, and which also addressed the sentence of dismissal
as having been harsh, Mr Fisher, expressed himself as follows:-
“The sanction, unlike what the Commissioner found is not justified. It
cannot be justified. How can a sanction of dismissal be justified in the
circumstances of these actions, these supposed acts of misconduct?
Ms Rabie is not being dishonest. Ms Rabie, at most, is said to have
been rude. No words M’Lord of any nature, and people can be very
rude. She didn’t swear at her, she didn’t use the “f”- word. She didn’t
make personal remarks. She said come out, come out, your wings
have been clipped. That’s the worst. She said to Ms Henkeman also, on
their version, you slammed the phone in my ear, you were childish,
please write it down. She said to Mr Strydom, who we’ve heard by the
way of hearsay evidence, why don’t you write to Parliament.
What is being complained about here? M’Lord, are these people
serious? I must ask the question. Are they saying that Ms Rabie must
be …”
[26] I repeatedly asked from Mr Fisher whether it was my function, sitting as a
review judge, to substitute my own decision for that of Van Staden. The
best answer I got was that I am vested with these powers if the evidence
before me is “ competent enough for this court in any event to arrive at
findings as to what should have been the finding of the commissioner ”.
The more I asked the question, the more I realised that Mr Fisher either
has no basis that has any relevance to s 145 in attacking Van Staden’s
award, or he was giving me the best answer that he could.
[27] A correct statement of my function, sitting as a review judge, was made,
in my respectful view, by Mr Van der Schyff who, relying on a number of
cases in this Court and in the Labour Appeal Court, argued that s 145(2)
(a) grounds, having been expanded by case law, envisage a successful
review if an award lacks “ rationality” and “ justifiability” in relation to
evidence placed before a commissioner.
[See: Shoprite Checkers (Pty) Ltd v Ramdaio NO & Others [2000]
9 BLLR 1011 LAC at 1022 B and 1024 H.]
[28] Further, “misconduct” as in s 145(2)(a)(i) as a ground of review, not being
defined in the LRA, has been held by Courts to relate to some form of
mala fide conduct or conduct which is obviously wrong in the
circumstances.
[See: County Fair Foods (Pty) Ltd v CCMA & Others (1999) 20 ILJ
2609 at 2617 E.]
With regard to gross irregularity, for me to upset Van Staden’s award, I must
find that he misconducted himself so irregularly that it can clearly be said
there was no proper hearing.
[See: County Fair Foods (Pty) Ltd (supra); Maarten & Others v
Rubin NO & Others (2000) 21 ILJ 2656 (LC) at 2659 para. 4.]
[29] As I observed earlier, my sense is that Van Staden not only applied his
mind to the evidence led before him. He applied the above legal
principles. Firstly, he exercised his discretion judiciously – and referred to
legal opinion and case law – for example as to whether he should admit
the hearsay evidence of the presiding officer at the disciplinary inquiry
with regard to Strydom. Whilst he may not have commented on each and
every witness’s evidence – which is not a requirement – my reading of his
award, viewed against the record of proceedings before him, satisfies me
that his decision was based on the evidence before him.
[See: Cox v CCMA & Others (2001) 22 ILJ 137 at 144 (C); East Rand
Gold and Uranium Co Ltd v CCMA & Others (1999) 20 ILJ 2348
(LC).]
[30] Even if I think Van Staden is incorrect in his conclusions in the sense that I
would have come to a different conclusion had I been sitting as a
Commissioner, I cannot for that reason alone review his award when I am
satisfied – as I am – that he considered all the facts and applied relevant
legal principles.
[See: Pep Stores v Laka [1998] 9 BLLR 952 (LC); Cox v CCMA
(supra); Carephone (supra).]
[31] I cannot review and set aside Van Staden’s award, much less substitute it
with my own, simply because I may have a different view, if the
conclusion that Van Staden came to makes sense and is justifiable
because it can be explained sensibly in the light of the evidence before
him. Nor can I review and set aside his award on the basis contended for
by Rabie.
[32] It is not, in my view, misconduct (certainly not one on the basis of which I
can interfere with his award) that Van Staden did not investigate afresh
the evidence of Strydom for purposes of “ correcting” alleged “procedural
and substantive defects” in the disciplinary inquiry. Firstly, the review was
never on the basis that procedural fairness was an issue. Rabie’s referral
form to the CCMA clearly stated that the decision sought from the
commissioner was for him to “ rule that the dismissal of Ms Rabie was
substantively unfair and to reinstate her from date of her dismissal ”. In
the light of this self limitation of what her parameters of relief are to be,
Rabie’s endeavour to seek to persuade me to review Van Staden’s award
on the basis that it was also procedurally unfair is mischievous.
[33] In any event, Van Staden had made it clear to the parties that the hearing
before him was de novo. In the circumstances it was his prerogative, as
trier of fact, to receive whatever evidence, including hearsay evidence, if
he was satisfied that, exercising judiciously his discretion, he was entitled
to do so.
[34] This was, a fortiori, the case because the accuracy of Olivier’s
recollection of Strydom’s evidence at the disciplinary inquiry was not
challenged by Rabie’s representative at the arbitration proceedings. Nor
was it necessary, in my view, that Van Staden, in the circumstances,
should have called the evidence of Strydom. Besides, if Rabie felt that
justice would have been better served if Strydom, Bennett, Meyer,
Paulser, Prins, Jacobs (all witnesses it was argued should have been
called), she was quite at liberty to have subpoenaed them. She never did.
For all these reasons, Mr Fischer failed to persuade me that Van Staden
misdirected himself in any of the senses contemplated by the provisions
of s 145 of the LRA.
[35] Insofar as Mr Fisher’s arguments on sanction are concerned, I respectfully
hold that Mr Fisher has totally misperceived what the test for review of a
sanction in terms of s 145 entails. As has been repeatedly held by this
Court and the one above it, I would only interfere with Van Staden’s
dismissal sanction if I found he had so grossly misconducted himself with
regard to what sanction he could properly impose that his sanction could
not stand because it was not justified by the evidence, and was totally
irrational in the light thereof.
[36] It is not for me to substitute a justifiable sanction imposed by an
arbitrator, acting carefully and reasonably, who heard first hand all the
evidence in mitigation and in aggravation, simply because I could have
imposed a lesser sentence. If I am satisfied that the trier of fact, in
imposing sentence, took into account the evidence before him and
relevant legal principles, cadit quaestio.
[37] By all accounts, the evidence before Van Staden, viewed objectively,
clearly shows that Rabie, in at least the events on 4 February 1998,
conducted herself in a manner that makes her fall foul of the charges with
which she was charged. A careful examination of the record demonstrates
that Van Staden was right in finding her guilty of insubordination and
misconduct. On whatever version, what comes our clearly is a Rabie who
is cantankerous and aggressive. She is argumentative and disputatious.
She will not let go. She grabs a file from a patient and defies an order
from her superior to hand the file back to the patient (one Bennett).
[38] Begrudgingly, she hands over the file, but thereafter storms to her
superior’s office – “flinging the door open” – whilst Mrs Henkeman is
having a meeting. She addresses her in an aggressive tone. Though in her
evidence she initially denies this, she does finally admit having uttered
the words attributed to her. That afternoon, she confronts Henkeman,
even though Henkeman tries to avoid her by getting into her office. Rabie,
not content with what she did in the course of the day, goes to bang on
Henkeman’s door and challenges her to “ come out ”. She taunts
Henkeman by saying she has now “clipped her wings”.
[39] This is evidence that Van Staden heard. To be sure, Rabie tried her best to
deny most of it – as appears from the record – but this is evidence
repeated by Labuschagne in his answering affidavit, which was not
challenged. Van Staden believed the version of the employer and he
found as he did. I can find nowhere in my assessment of the documents
before me that shows Van Staden to have acted irregularly in terms of the
LRA, particularly s 145 thereof. For all these reasons, Rabie’s application
cannot stand and I dismiss it accordingly.
[40] It remains for me to rule on a point in limine which Mr Van der Schyff
lamely raised in February and in April. Although he never persisted in
arguing it, he never abandoned the point. He had called for the
application to be dismissed on the basis that Rabie had failed to paginate
the Court file. She had also not prepared an index. He claimed that his
client, the employer, had consequently been prejudiced by this irregularity
insofar as it did not know which documents Rabie would rely upon, an
untenable situation which the Courts deplore. For this submission Mr Van
der Schyff referred me to Morgan Fashions SA (Pty) Ltd v CCMA &
Others [1999] 10 BLLR 1063 (LC).
[41] Mr Fischer’s response was that “ the index of pagination [sic!] ” was faxed
to a wrong address. That seemed to have put paid to the matter. Mr Van
der Schyff did not resuscitate it at the end of his argument on the merits
and that is where I also leave it.
[42] As for the rest, I dismiss the application with costs.
__________________________________________
D B NTSEBEZA
Acting Judge of the Labour Court of South Africa
Date of Hearing: 23 FEBRUARY 2003
Date of Judgment: ………………………………….
For the Applicant: ADV E FISHER
Instructed by: N ALLEN ATTORNEYS
For the Third Respondent: ADV J VAN DER SCHYFF
Instructed by: STATE ATTORNEY