NOT REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN CASE NO. JR 531/01
In the matter between :
RAINBOW DRIVERS & CREWS (PTY) LTD Applicant
and
THE COMMISSION OF CONCILIATION
MEDIATION AND ARBITRATION First Respondent
PROFESSOR MZUNGULU MTHOMBENI
Second Respondent
QWAKA VELILE ORCHARD Third
Respondent
_________________________________________________________
JUDGMENT
PILLEMER, AJ:
[1] The Applicant dismissed the Third Respondent from its
employment. He challenged that dismissal as being unfair
utilising the procedures available to him in the Labour
Relations Act, 1995. The matter proceeded as an
arbitration under the auspices of the First Respondent. The
Second Respondent, a Commissioner employed by Second
Respondent was appointed arbitrator. He heard the
evidence of two witnesses, one called by the Applicant and
the Third Respondent testified in support of his case.
[2] The transcript of the record of the hearing
contains numerous portions where what was said was indistinct and
the transcriber captures this by the use of the word “indistinct” in
brackets. There are also times when the transcriber cannot hear what
is being said because two people are speaking at the same time and a
note is made on the transcript to record this difficulty.
In spite of these problems with the transcript it
nonetheless presents a reasonably full picture of what occurred at the
arbitration and of the evidence that was given at the hearing.
[3] The managing director of the Applicant, a Mr
Nkosi, conducted the case on behalf of the Applicant. He did not do a
particularly good job. He was inept and failed to lead evidence central
to his case. In fact he was probably the most important witness for the
Respondent, if evidence was to be lead to contradict the version of the
Third Respondent, yet he elected not to testify. The witness he did call
did not take the matter particularly far and did not deal at all with the
allegations of procedural unfairness. It was an aspect that ought to
have been dealt with fully because the Third Respondent contended
that the disciplinary process was a sham. He testified that a person
who was described as a partner of Mr Nkosi, a Mr Skinner, had only
nominally presided. In fact according to him Mr Nkosi took control of
the proceedings and in effect dismissed him. He was the witness,
prosecutor and judge notwithstanding Mr Skinner’s presence. Without
any evidence to gainsay this version, which on the performance of
Nkosi at the arbitration was not improbable, the arbitrator could make
no other finding on the evidence before him than that the dismissal
was unfair. He also decided that the deterioration in the employment
relationship was such that it was inappropriate to order reinstatement
and awarded compensation.
[4] Although there are challenges to the reasoning of
the arbitrator on the basis that some of the factual conclusions to
which he came cannot properly be deduced from evidence on the
record, I am of the opinion that this feature is of little moment. I take
that view because the record, as I indicated, is not 100% complete with
the result that there may well have been evidence in the portions that
were indistinct to justify the factual findings in respect of which the
complaint has been made. These complaints were not set out in the
founding papers and were simply argued on the basis of the record.
More importantly however I am satisfied that on the evidence that was
given the finding to which the arbitrator came was the correct one and,
in those circumstances, even if legitimate criticisms of his reasoning or
factual findings can be made they are of no relevance in the final
outcome. On the evidence before him he came to the correct legal
conclusion, so even if his reasoning is faulty, the award ought not to be
set aside on that ground alone.
[5] In the main argument advanced by the Applicant’s counsel
he relied upon the constitutional right to fair labour
practices and upon section 138 of the Labour Relations Act
which provides that the commissioner may conduct the
arbitration in a manner that the commissioner considers
appropriate in order to determine the dispute fairly and
quickly and must deal with the substantial merits of the
dispute with the minimum of legal formalities. It was
argued that the commissioner was too preoccupied with
dealing with the matter quickly with the result that this
impacted upon his duty to do so fairly. There are two
passages in the transcript which reveal that the
commissioner was at times impatient with Mr Nkosi’s
questioning and pointed out to him that he had another
arbitration later in the day and would like to complete the
present one expeditiously. In my opinion those comments
are of little moment and do not amount to a reviewable
irregularity. What was pressed in argument was that in his
zeal to ensure that the matter moved quickly the arbitrator
fell short of his duty to advise unrepresented parties of the
consequence of the failure to lead evidence on matters
where there was direct evidence which they may be able
to contradict. This it was argued rendered the proceedings
unfair and constituted misconduct in the conduct of the
proceedings making the award reviewable.
[6] The point in general terms is a good one. There
obviously is a duty upon commissioners to assist laymen in the
conduct of their arbitrations. The court has on a number of occasions
set aside awards where this has not occurred. The following examples
are illustrative. In Dimbaza Foundries Limited v CCMA and Others
(1999) 20 ILJ 1763(LC), it was held that a commissioner is obliged to
guide the process and to be alert to a layman representative’s lack of
legal training. The commissioner’s failure to postpone the matter mero
moto so as to enable the employer to produce the necessary
witnesses and his consequent findings on the limited evidence
presented to him was found to constitute a reviewable defect. In
Consolidated Wire Industries Proprietary Limited the CCMA and Others
[1999] 10 BLLR 1025 (LC), it was held that where laymen are involved
the commissioner must take charge of the proceedings when a version
is changed or a new one suddenly presented and cannot simply rely on
the parties to realise what is expected of them unaided. In Char
Technology Proprietary Limited v Nnisi and Others (2000) 7 BLLR778
(LC) a commissioner was found to be obliged to explain proceedings,
rules of evidence and the manner of dealing with documents to the
parties at the outset. In East Cape Agricultural Co-operative v Du
Plessis and Others (2000) 9 BLLR1027 (LC) it was held that a
commissioner cannot find against a party on a point not canvassed
during the hearing, that he is obliged to call for documentation when it
appears material, explain the procedure he intends to follow and
narrow and explain the issues at the outset of proceedings. In DB
Thermal Proprietary Limited v CCMA and Others (2000) 10 BLLR1163
(LC) it was held that the commissioner is obliged to advise lay clients
on the evidence that should be led. In Scholtz v Commissioner
Masekono and Others (2000) 21 ILJ1854 (LC) it was held that a
commissioner is obliged to inform parties about his discretion to allow
legal representation about the status of a written statement and about
the influence that he could draw from the failure to give oral
testimony.
[7] The Applicant relies upon misconduct by the commissioner
and it bears the onus of establishing that misconduct.
While the record may in an appropriate case be all that is
required because it speaks for itself, generally, the
averments should be made expressly and clearly in the
founding papers. In that way the commissioner is afforded
an opportunity of dealing with the criticism of his conduct
and is afforded a proper opportunity to set out factual
matters which may well be relevant. In this case for
instance if the complaints that were made in argument had
also been clearly set out in the affidavits the arbitrator
would have been able to explain what it is that he did if
anything, in advising the parties of the process and the
need to give evidence or that he satisfied himself that that
had access to such advice and assistance. It may well be
that there were matters which were canvassed before the
matter was formally recorded, which as I understand it,
often occurs before the matter proceeds formally and on
record. If the allegations of misconduct by the arbitrator
are not made in the founding affidavit then it is generally
not open to a party to rely on acts of misconduct which do
not emerge plainly from the record itself. In this case the
founding affidavit only makes the complaint in the
following terms:-
“Mr Skinner did not give evidence because I did
not realise that his evidence was necessary. It should have become
apparent to the Second Respondent that the evidence of this witness
was relevant. In order to support the Applicant’s defence it became
apparent to me during the proceedings that I required the attendance
of Mr Skinner. I applied for a postponement during the proceedings
but the Second Respondent refused this. I submit the Applicant was
severely prejudiced in its defence of the allegations because of the
failure of the Second Respondent to permit the Applicant to properly
present its case”.
There is nothing on the record which indicates
that a postponement was sought. It is most improbable on a reading of
the record as a whole, even taking into account that there are portions
that are indistinct that such an application was in fact made. So while it
is true that the record contains passages that are indistinct, the
complaint as set out in the founding affidavit contradicts the approach
adopted in argument. In argument it was submitted that the
commissioner had a duty to explain to the Applicant that it was
essential for the Applicant to call Mr Skinner as a witness and for Mr
Nkosi himself to testify. On the affidavit it is alleged that the
misconduct arose as a result of a so-called refusal to postpone the
matter in order to enable Mr Nkosi to call further witnesses. The
contradiction is obvious - if Nkosi had indeed applied for leave to call
further witnesses he would have appreciated that it was necessary to
do so and needed no explanation. I assume that the contention that a
postponement was refused was not persisted in during argument
because that is not supported by the record at all which, if anything,
suggests that Nkosi was unsure of whether or not he should call further
witnesses, but not that he was refused a postponement.
[8] An Applicant who alleges relatively serious misconduct
against a commissioner should do so expressly and clearly
so that the commissioner is in a position to deal with those
criticisms. In my view this was not done in the present
case. I am not satisfied that the Applicant has established
that the commissioner was guilty of an irregularity in the
conduct of the proceedings and, as I indicated above, the
conclusion to which he came on the evidence before him
was in my view the correct one.
[9] In those circumstances I take the view that the review
should fail. The application is dismissed with costs.
____________________
PILLEMER, AJ
Date of hearing: 23 January 2003
Date of Judgment: 31 January 2003.
For Applicant: Allardice and Partners.
For Respondent: Mashego Attorneys