Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR258/02
2003.03.19
In the matter between
CRYSTALLITE PLASTICS (PTY) LTD Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION 1st Respondent
2nd Respondent
CHEMICAL ENERGY PAPER PRINTING
WOOD AND ALLIED WORKERS UNION 3rd Respondent
4th Respondent
5th Respondent
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J U D G M E N T
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REVELAS, J:
1. The fourth and fifth respondents, former employees of
the applicant, were dismissed by the applicant
following a disciplinary inquiry held on 30 November
2000. That inquiry was chaired by the managing director
of the applicant, Mr M E Coetzee, who is also the
deponent to the founding affidavit in support of the
application in terms of section 145 of the Labour
Relations Act, 66 of 1995, as amended ("the Act"),
wherein the applicant seeks to set aside the award made
by the second respondent, (“the arbitrator”), in favour
of the fourth and fifth respondents. The arbitrator
found that the dismissals of both the fourth and fifth
were both substantively and procedurally unfairly.
2. At the disciplinary inquiry held on 30 November 2000
the fourth and fifth respondents faced charges against
them for allegedly having had, on various occasions,
"unlawfully removed goods belonging to the applicant from its
warehouse and offered these goods for sale to various
customers with the purpose of enriching themselves."
3. The fourth and fifth respondents (to whom I shall refer
to as " Nkosi" and "Mazibuko" respectively) were also
charged with having failed to deliver goods to
"designated customers and subsequently offered these goods
to potential buyers, also to enrich themselves."
4. When Nkosi and Mazibuko were dismissed, they referred
their dispute about the alleged unfair dismissal to the
first respondent, where the dispute was eventually
arbitrated by the arbitrator. The applicant was ordered
to reinstate the fourth and fifth respondents and to
pay them compensation equal to 12 months' remuneration
each.
1. 5. The disciplinary inquiry, which I referred to and
which was held on 30 November 2000 , was preceded by
another hearing, held on 3 November 2000 , where Nkosi
and Mazibuko were faced with the same charges. They
were also found guilty at that hearing, but that
finding was subsequently overturned at an appeal
hearing held on 23 November 2000 , which was presided
over by a Mr Dietrich of the applicant. He found that
there was no proper evidence to substantiate a finding
of guilty. The next day, 24 November 2000 , Nkosi and
Mazibuko were notified to attend the hearing referred
to, which was held on 30 November 2000, where further
evidence was led.
6. At this point it is noteworthy that the only evidence
which was before the chairman at the first hearing
(Coetzee) was an unsigned statement of one of the
customers who allegedly dealt with the fourth and fifth
respondents.
7. At the second hearing (30 November 2000), the evidence
presented was four affidavits, inter alia, by customers
of the applicant, which supported the claims or charges
levelled against the respondents. The third and fourth
respondents were not afforded the oppurtunity to cross
examine any of these witnesses, and I can at this stage
say, much was also conceded by counsel on behalf of the
applicant, that these proceedings were procedurally
unfair.
8. The question whether or not an employee may be
subjected to two hearings was an issue which came
before the Labour Appeal Court in BMW South Africa
(Pty) Ltd v van der Walt 2000 (2) BLLR at 121, where
Conradie JA held:
1. "Whether or not a second disciplinary inquiry may be
opened against an employee would, I consider, depend on
whether it is in all circumstances be fair to do so. I agree with
the dicta in Amalgamated Engineering Union of South Africa
and Others v Carlton Paper of SA (Pty) Ltd 1998 (9) ILJ 588 IC
at 596A-D, that it is unnecessary to ask oneself whether the
principles of autrefois acquit or res judicata ought to be
imported into Labour Law. They are public policy rules.
Advantage of finality in criminal and civil proceedings is
thought to outweigh the harm which is made in individual
cases being caused by the application of the rule. The labour
law of fairness, and fairness alone, is the yardstick. (See also
Botha v Gengold 1996 (4) BLLR 441 IC, and Maliwa v Free State
Consolidated Gold Mines Operations Ltd , President Steyn Mine
1989 (10) ILJ 934 IC). I should make two cautionary remarks: It
may be that the second disciplinary inquiry is ultra vires, the
employer's disciplinary code. (See Strydom v Busco Ltd 1997
(3) BLLR 343 CCMA at 350F-G). This might be a stumbling
block. Secondly, it would probably not be considered to be fair
to hold more than one disciplinary inquiry, save in rather
exceptional circumstances."
9. The arbitrator found that there were not any
exceptional circumstances in this matter, which
necessitated two hearings, I agree with him. The
applicants were notified that the purpose of the second
inquiry was to hear new evidence, and that the previous
findings of. Dietrich was arrived at on the basis that
the case would be reheard, should new evidence be
found.
1. 10. Of course the fourth and fifth respondents were
not notified of anything of the kind at the first
hearing. They were not aware of the precondition
attached to the appeal findings before the enquiry
started.
11. In accordance with the principles set out in the BMW
case, the dismissal was procedurally unfair.
12. It is trite, and that was supported by the Labour
Appeal Court, that an arbitration hearing is a hearing
de novo . At the arbitration hearing the evidence
presented before the second hearing was put before the
arbitrator. A Miss Beatrice Goetze, an employee of the
applicant, abc investigated the alleged offences and
gave evidence in detail about them; Mr Goetze, also
gave evidence about the routes and the duty times of
the fourth and fifth respondents, indicating where they
were on the days in question. A Mr McKenzie also gave
evidence.
1. 13. The arbitrator simply did not deal with this
evidence in his award. He decided the whole matter and
came to a conclusion based on what transpired at the
two disciplinary hearings. These hearings, I have
pointed out, were procedurally unfair but the question
of substantive fairness was never considered by the
arbitrator if one has regard to the conclusions that he
came to. It was as if such evidence was never before
him. The arbitrator did not apply his mind in this
regard. If a disciplinary inquiry was procedurally
unfair, because witnesses were not called, that defect
should be capable of being cured by an arbitration
hearing. The converse would be unfair to an employer
who, due to a mere technicality, would be forced to
continue a relationship with employees, it believes or
knows, to have committed fraud and theft.
14. In my view, it would be more than fair to set the award
aside and refer it back to the CCMA, where the matter
should be arbitrated before a different commissioner,
and the issue of substantive fairness, to be the only
issue to be considered.
15. In the circumstances I make the following order:
1. The dismissal of the fourth and fifth respondents was
procedurally unfair.
2. The award is set aside insofar as the question of
substantive fairness was not properly considered by the
second respondent.
3. The matter is referred back to the Commission for
Conciliation, Mediation and Arbitration, for the
question of substantive fairness only is to be heard by
a different commissioner.
4. Each party is to pay their own costs.
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E Revelas