IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN) CASE NO: C700/02
In the matter between:
NATIONAL UNION OF SECURITY
OFFICERS AND GUARDS First
Applicant
VALENTINO VICTOR MUTHIEN and 10 Second
Applicant
THE MINISTER OF HEALTH AND
SOCIAL SERVICES (WESTERN CAPE) First
Respondent
WPRINSN.O. (Cited in her
capacity as Commissioner for the
Public & Health & Welfare Bargaining 15 Council)
Second Respondent
THE MINISTER OF PUBLIC SERVICE
AND ADMINISTRATION Third
Responent
JUDGMENT
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25
REVELAS,J:
1. This is an application for the review of an arbitration award in which the first
respondent, a commissioner for the Public Health & Welfare Bargaining Council ("the
Council"), held that the dismissal of the applicant by the first respondent was
substantively and procedurally fair.
2. The applicant seeks to set aside the award in terms of section 158(1)(g) of
the Labour Relations Act 66 of 1995 ("the Act"). The award is dated 27
November 2001.
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JUDGMENT
3. The applicant was notified of the dismissal on 10 May 2000. The dismissal was for
alleged misconduct and that was that he allegedly misrepresented facts when he initially
applied for the position he thereafter held with the first respondent. He made this
application in September 1994. 5 It is common cause that he declared in his application
for employment on 14 September 1994 that he was still employed by his former
employer, the WCRSC, and that his reason for wanting to leave its employment was for
job security.
10 4. The charge levelled against him was based on alleged misrepresentation, in
that the applicant did not disclose on the same application form in 1994, that he
had in fact been dismissed for misconduct on 17 January 1994.
15 5. The explanation advanced by the applicant for the aforesaid way in which he
described events and reasons for his departure from his former employer was that
he actually had referred a dispute to the erstwhile Industrial Court in which he
sought to compel the WRSC to convene an appeal hearing. The matter was
eventually settled on 1 December 1994.
20 Such action by him, he believed on the advice of his lawyers, had the effect of
suspending the operation of the dismissal and that he could perceive himself as
being a person employed by the former employer.
6. The arbitrator made much of the fact that the applicant's argument as 25 to the
aforesaid meant that he as at the time he was appointed by the first respondent, and
prior to the matter being settled with his former employer on 1 December 1994, he was
employed by two employers. On this basis the arbitrator rejected his explanation and
also found that he was not a credible
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witness.
7. The applicant also argued that as at the commencement of his employment with the
first respondent, the applicant had informed certain 5 employees of the first respondent
about the situation surrounding his dispute with his erstwhile employer and at all relevant
times the first respondent was aware thereof that the applicant and his former employer
were in dispute and had a matter in the Industrial Court which affected his departure. In
other words, it was argued that the first respondent knew all along that the reason 10
for his departure from the first respondent was not solely for purposes of job security.
8. The arbitrator regarded this evidence as irrelevant and declined to make a
finding thereon. On the evidence before her there were two versions,
15 since the first respondent had placed this explanation in dispute; in other words, its
case was that it did not know. The basis upon which the second respondent failed
to make a credibility finding in this regard was that, as she reasoned, an employer
could not condone such dishonest misconduct on any basis, particularly where
such an employer is in the public sector. It
20 appears that she would have had certain policy considerations in her mind.
9. It is common cause that during 1998, certain criminal charges relating to alleged
sexual abuse were investigated, with the applicant as a suspect. He was suspended
during 1998. The allegations began in April 1998. 25 Thereafter, in 1999, the
investigation into the alleged offence currently under scrutiny before me was
commenced. Several months lapsed before the matter was finalised. The applicant
attacked the above findings in the arbitration on certain grounds, to which I will deal with
hereinafter, and alleged
21104/11:59 /....
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JUDGMENT
a further ground of review in that the applicant contended that the second respondent
engaged in substantial questioning of the applicant during his evidence. In this regard I
was referred to the transcript record pages 505531. It was contended that the
commissioner's questioning of the applicant ran 5 through 26 pages whereas his actual
evidence was only 31 pages and that meant that there was a certain justified perception
of bias on the part of the applicant and on this ground alone the award should be set
aside and the matter should be remitted to the Council for determination by another
arbitrator. 10
10. The first respondent rebutted this argument by submitting that the first time
the question of this perceived bias, or rough questioning by the commissioner was
raised, was at the argument of this matter. It was never raised at the arbitration
hearing, no application for a recusal of the
15 commissioner was brought and it does not appear from the founding papers. The
first respondent accepted that the commissioner may have had a robust and
inquisitorial style, but argued that nonetheless she treated the parties even
handedly. Her questioning amounted to no more than clarifying of the issues.
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11. Before I return to the grounds of review, it is necessary to just shortly summarise
what the arbitrator in effect found as the reasons for her award. In her award the
commissioner concluded that the applicant's dismissal had been substantively fair and in
reaching this conclusion she reasoned firstly 25 that it was not possible for an employer
to condone the misconduct in question and accordingly her enquiry was only limited to
the question of whether the applicant acted dishonestly in completing the application
form. She also found that he was not a credible witness and therefore, as I have
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described hereinbefore, she rejected his explanations. Due to his dishonesty she
found that the sanction of dismissal was justified.
12. I will now deal with the commissioner's approach to the question of the 5
alleged condonation of nondisclosure on the application form. It was not open, in my
view, for the commissioner to decide not to consider the points whether or not the
employer all along knew about the fact or had long since been aware of the
circumstances of the applicant's employment relationship with the WCRSC. In doing so,
she did not consider the evidence of both the
10 first respondent's witness as well as the evidence presented by the applicant on
these points. This is a serious oversight in my view, particularly since she eventually
found him guilty of dishonesty and rejected his version in its entirety. It is an irregularity
to limit the scope of an enquiry to the extent that certain evidence is excluded, and then
go on to make credibility findings on
15 them. The commissioner had a duty to consider whether or not the first respondent
had knowledge of the misrepresentation, right from the beginning, when he applied for
the job but failed to take any action against the applicant. This is very important because
it is very probable that the first respondent, or at least some of its employees to whom
the applicant had reported, had
20 indeed had knowledge thereof. It is difficult to hide a pending court case from one's
employer. Because there was this possibility that the employer was aware or even
probability that the applicant's version might be true on this aspect, it was inherently
irregular for the arbitrator not to deal therewith.
25 13. It might be so that an employer in the public sector should not condone this
type of conduct and that it is dishonest, but the enquiry does not lie with the
arbitrator alone. In my view it would be unfair if the employer was aware of a matter
for six years of a certain situation but then takes steps only when
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JUDGMENT
a new matter arises. In this regard I refer to the question of the alleged sexual
abuse.
14. It is also trite, as submitted by the applicant's counsel, that a dismissal 5 will
be substantively unfair if the employer fails to prove that the stated reason for the
dismissal was in fact the true reason for the dismissal. In this matter it was virtually
common cause that the question against the applicant's nondisclosure of his dismissal
was only investigated once the other matter surfaced. This will not always be a sign that
that was not the true reason, but 10 once again I must stress the commissioner failed
to consider these aspects by limiting the enquiry in the way she did.
15. This brings me to the other cause of complaint and that is the question of the
alleged gross procedural irregularity, namely the commissioner's
15 conduct during questioning of the witnesses. I will first deal with the complaint by the
first respondent that the first time, this particular aspect was raised was during argument
of the review application. In this regard I was referred to the matter of Malelane Toyota v
CCMA [199916 BLLR 555 (LC) at 558 (7) where MIambo, J referred to the fact that it is
trite in application proceedings that the
20 applicant's notice of motion and founding affidavit must contain all the allegations
upon which the applicant's cause of action is found. In this regard he referred to
Lipschitz & Swartz NN0 v Markowitz 1976(3) SA 772 (W). He then went further to say
"whilst this is so, this Court (the Labour Court) has held that in every case where there is
a challenge to an award it is enjoined to
25 consider if the award is appropriate and should not hesitate to set it aside should a
reviewable irregularity be evident (see Linda Deutsch v Pinto & Another [1997] 18
ILJ 1008 (LC)). MIambo held further:
"Therefore whilst it is correct that the present application is wanting in certain
21104/11:59 /....
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material respects, I am still dutybound to consider if the award is appropriate in
terms of section 138(9). I am further influenced in this approach by the fact that the
applicant's papers were drafted by lay people."
5 16. The facts before MIambo. J are not at all similar to the question which I have to
decide, but the principle is apparent, i.e. when considering whether an award was
fair, all the evidence (and that which is evident) before me should be considered in
the light of all the evidence that was presented. The record is clear. The
examination conducted by the commissioner is apparent
10 from the transcript. No party is prejudiced if the transcript examined to establish
whether or not those proceedings were fair or the manner in which the arbitrator
questioned. I do not wish to refer to each and every sentence uttered by the
arbitrator or each and every question she had asked the
applicant. Suffice to say, that in my view, she exceeded the bounds of her
15 enquiry and created an impression that she was biased in favour of the first
respondent. This is supported by the fact that I found that the manner in which she dealt
with certain witnesses to be deferential to them as a result of their political positions or
for any other reasons she may have had. Her generosity in respect of those witnesses
did not extend to the applicant and,
20 in my view, he was entitled to hold the view that she was biased.
17. Courts have warned on several occasions that trial judges or arbiters often,
and unfortunately quite unwarrantedly, intervene in proceedings while for instance the
defendant's counsel is crossexamining certain witnesses 25 and during the hearing of
argument (see Solomon v De Waal 1972(1) SA 575 (A) at 580E) For this reason alone
the award falls to be set aside.
18. It is argued on behalf of the applicant that I should substitute the
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arbitrator's finding that the dismissal was fair with an award which reads that the
"dismissal was procedurally and substantively unfair".
19. I do not believe that on the evidence before me I should make such a 5 finding.
That would mean that I would be subverting certain credibility findings that the arbitrator
had made before all the evidence is tested. The applicant's complaint is precisely that
the enquiry was limited and therefore it should be remitted back to the Council to be
arbitrated by a different commissioner to reasses all the evidence from the onset. 10
20. In the circumstances I make the following order:
1. The award of the second respondent dated 27 November 2001 is
hereby set aside. 15 2. The dismissal dispute is referred to the
Public & Health Bargaining
Council to be arbitrated by a different commissioner. 3.
The first respondent is to pay the applicant's costs.
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