IN THE LABOUR COURT OF SOUTH AFRICA
REPORTABLE
CASE NO D199/03
DATE HEARD 2004/02/09
DATE DELIVERED 2004/02/09
In the matter between:
COATES SA (PTY) LIMITED Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
H MOLOTSI N.O. Second Respondent
SACTWU (on behalf of MAGCABA) Third Respondent
JUDGMENT DELIVERED BY THE HONOURABLE MADAM JUSTICE PILLAY
ON 9 FEBRUARY 2004
MR B MacGREGOR
ON BEHALF OF 4TH RESPONDENT: MR D CRAMPTON
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
D199/03-NB/CD - 2 - JUDGMENT
JUDGMENT 9 FEBRUARY 2004
PILLAY J
[1] The record in this review is not available. I have a discretion as to
whether the dispute should be reheard at arbitration.
[2] The employee was dismissed for misappropriation of company
property and insubordination. On the misappropriation charge, the
evidence for the applicant at the arbitration was in the form of two
affidavits, which make out a strong prima facie case against the
employee. It is not evident from the award why the second respondent
Commissioner preferred the employee’s version and whether that
preference was justified by the material before him.
[3] The main focus of the award is on the assault allegedly perpetrated
on the employee by the investigators. The Commissioner found that the
employee’s refusal to co-operate with the investigators, which led to the
charge of insubordination, was not wilful and deliberate as he had a
legitimate excuse for not talking to them because they assaulted him.
[4] It is common cause that the investigators who allegedly assaulted
the employee were not called to testify. However, in order to determine
whether the employee‘s conduct was justified, the record is required to
make such an assessment. What form the assault took, when and by
whom it was perpetrated, what the employee's own conduct was,
whether it was proportionate to, reasonable or justified by the assault
can only be determined after considering the evidence at the arbitration.
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D199/03-NB/CD - 3 - JUDGMENT
[5] In the circumstances the Court finds that the review cannot be
determined without a record. Given the strong prima facie case against
the employee an injustice would result if the matter is not remitted for a
rehearing.
[6] The purpose of remitting the matter is not, however, to allow the
applicant a second bite at the arbitration cherry. Consequently,
Mr Crampton for the employee submitted that the Court should direct
that the applicant should not be allowed to call witnesses who were not
called at the previous arbitration.
[7] Arbitration is a dynamic process. Who the arbitrator is, how he or
she intervenes or does not intervene in the process, how this impacts on
the parties and the proceedings, whether it results in the calling or not
calling of witnesses cumulatively determine whether the hearing is fair.
In the absence of a record I cannot say that the Commissioner conducted
the arbitration fairly or not. If, for instance, the circumstances were such
that the Commissioner ought to have warned the parties that the failure
to cross-examine and to call witnesses would lead to adverse inferences
being drawn, omitting to do so could amount to a gross irregularity.
Likewise, if, for instance, the applicant only became aware that the
employee would raise the alleged assault as a defence after it had closed
its case, then the applicant should not be barred from calling evidence
regarding the alleged assault.
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D199/03-NB/CD - 4 - JUDGMENT
[8] For the same reason that arbitration is a dynamic process this Court
should not fetter the discretion of the Commissioner who rehears the
matter, by prescribing whom he or she should allow as witnesses. All
that is required is a fair hearing with a minimum of legal formalities
appropriate to a matter that has been remitted for rehearing.
[9] As regards interim relief pending the new award, there is no basis for
it as the award is set aside. The employee's loss of remuneration should
be factored into the fresh hearing.
[10]As this matter was vigorously opposed, I see no reason why costs
should not follow the result.
[11]In the circumstances the award is set aside, the matter remitted to
the CCMA to be reheard by a Commissioner other than the second
respondent, the employee to pay the costs.
__________
Pillay D, J
12/02/2004
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