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Absa Brokers (Pty) Limited v Moshoana NO and Others (JA45/03) [2005] ZALAC 3 (26 May 2005)
.RTF of original document
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
CASE NO: JA 45/03
In the matter between:
ABSA BROKERS (PTY) LIMITED
Appellant
and
G N MOSHOANA N.O.
First Respondent
THE COMMISSION FOR CONCILATION,
MEDIATION AND ARBITRATION
Second Respondent
J P VAN STADEN
Third Respondent
Before: ZONDO JP, PILLAY AJA, NKABINDE AJA
JUDGMENT
Nkabinde AJA
Introduction
[1]
This is an appeal against a judgment of Jammy AJ sitting in the Labour Court in which he dismissed
with costs a review application brought by the appellant in terms of s 145 of the Labour Relations Act No. 66 of 1995 (“the
Act”), for the review and setting aside of an arbitration award issued by the first respondent under the auspices of the second
respondent. The first respondent is a commissioner of the Commission for Conciliation, Mediation and Arbitration (“the CCMA”).
The third respondent (“the employee”) is a former employee of the appellant. The arbitration proceedings related to a
dispute between the appellant and the employee about the fairness of the employee’s dismissal from the appellant’s employ.
Before I deal with the merits of the appeal, it is necessary to set out the facts relating to this matter.
Background and common cause facts
[2]
The appellant is a registered insurance brokerage company and a member of the Life Officers Association
(“the LOA”). The first respondent is a commissioner of the CCMA who conducted the arbitration proceedings. The LOA rules
(embodied in the Code of conduct of association) seek to safeguard the interests of insurance policy holders and to protect the good
name of the life insurance industry.
[3]
The employee commenced employment with the appellant on 1 April 1993 as an insurance broker. His
duties included the selling of life insurance policies to, and advising, the appellant’s clients with regard to their financial
matters.
[4]
On 21 May 1999 the employee was consulted by one Mr John Isaac Khoza (“the client”).
No one else except the two attended the consultation. The client’s financial situation was, at the time, desperate. The consultation
was mainly about the client’s interest in applying for a life assurance policy. As at that time, the client had an endowment
policy with Sage Life which had commenced on 16 February 1995 (“the old policy”). The client had registered a bond with
ABSA to the value of R63 073.00. He was in arrears with the payment of installments on the bond. The employee assessed the client’s
financial situation and gave him advice. Different options were explained to the client with a view to addressing his desperate financial
situation. One such option was to replace the Sage Life policy with one ordinary endowment policy which had a life cover benefit.
[5]
During the consultation the employee sold to the client an insurance policy which was registered
under policy number 64215262 (“the new policy”). He completed the application forms for life assurance (“the proposal
form”) on behalf of the client.
[6]
Clause 14 of the proposal form reads as follows:
“14 PROTECTION OF EXISTING ASSURANCES
Important note: Replacement of any insurances is generally to the
disadvantage of the owner because it involves duplication of
initial costs charged to the policy.
Is this proposal to replace the
whole or any of your existing insurance
with any insurer (whether replacement is to occur immediately or to replace an insurance
discontinued within the past six months or within
the next six months)? YES / NO
If ‘yes’ the introducer must discuss and complete the Replacement Policy
Advice Record and attach it to this proposal form.” (underlining supplied)
In this case the reference to “the introducer” in the last sentence of
clause 14 would have been a reference to the employee.
[7]
It will be noted from the contents of clause 14 that there is a question that must be answered with
“yes” or “no”. The question is whether the proposal form being completed is for the replacement of any of
the client’s existing insurance policies with the insurer. It will also be seen that, if the answer is “yes”, which
will be the case if the proposal is for the replacement of an existing policy, the “introducer” is required to ‘discuss
and complete the Replacement Policy Advice Record and attach it to the proposal form.’. If the answer to the question in clause
14 were in the negative, it would not be necessary to discuss and complete the Replacement Policy Advice Record (“the RPAR”) nor
was it necessary to attach it to the proposal form.
[8]
For reasons that will appear later in this judgment, it is necessary to also quote clause 16 of
the proposal form. Clause 16 was required to be signed by the “introducer” who made the declaration at the end of the process of the completion of the proposal form. It reads thus:
“I certify that I have explained the meaning of question 14 to the owner. I am aware of the possible detrimental consequences of replacing
a life policy. I have informed the owner of the declaration I am signing and am fully conversant with the ‘S’-referencing
system embodied in the LOA Code on the S Refence System and I accept the consequences thereof.
Signature of Introducer ----------------
Special remarks--------------------”
The employee signed the above declaration and put the date of 21 May 1999. The effect of the employee signing the declaration in clause
16 was that by his signature thereto he was certifying that, among other things, he had explained the meaning of clause 14 to the
client. It would seem that the policy proposal was then processed in the normal way. However, on 24 May 1999, which was only three
days from the 21st when the proposal form was completed, the client surrendered the old policy.
[9]
On 20 September 1999 the client addressed a letter of complaint to the appellant. The letter read
as follows:
“REF POLICY NO 64215262 J.I KHOSA
In 1995 [I] took out a policy to cover my bond of R63 000.00 with
Allied Bank. The payment was on my bond.
In June 1999 a certain Mr Van Staden made contact with me and
said we must stop the old policy of R180.52 and take out a new
policy. He said that my installment to (sic) my house will be the same
as it was namelyR1453.00. He also said that the old policy money will
be paid onto my house and that the new policy will pay my house in 8 years.
Now to my surprise my house is still R1453 and the new policy is R398 per month, and [I] cannot afford this as my salary is only R3393
per month.
I think Mr van Staden did not tell me the truth and [I] want to cancel my policy and get the R398 back.”
The disciplinary inquiry
[10]
Pursuant to the client’s complaint, the appellant preferred a disciplinary charge against the employee
and notified him to attend a disciplinary inquiry. The charge, which was in Afrikaans, read thus :
“Daar word beweer dat u wanvoorstelling en/of ‘n valse verklaring afgelê het deurdat u op die aansoekvorm om versekering
van Sage Lewens vir die kli?nt John Isaac Khoza, die vraag oor vervangende versekering by puntnommer 14 van die aansoekvorm, negatief
beantwoord het, terwyl dit positief beantwoord moes word.
Bogemelde optrede het ‘n direkte finansiële voordeel vir u ingehou en bogemelde optrede is strydig met die vervangingskode
van die Vereniging van Lewensversekeraars van Suid-Afrika (LOA) en is ‘n verbreking van klousule 20.3.7 van u makelaarsdiensooreenkoms,
welke oortreding in ‘n ernstige lig beskou word in terme van ABSA Makelaars se Dissiplinêre Kode met spesifieke verwysing
na paragraaf 1.1 en 1.2 van die lys van wangedrag soos vervat in die kode en sou u skuldig bevind word op bogenoemde klagte, kan
dit tot u summiere ontslag lei.”
In an affidavit in subsequent court proceedings the appellant provided the following as the English translation of the charge that
was put to the employee, namely:
“misconduct relating to the making of a misrepresentation and/or false statement in that the employee completed an application form
for life insurance in which he stated that John Isaac Khosa was not applying for replacement life insurance under circumstances in
which Khosa was applying for replacement life insurance and thereby obtained a financial benefit in contravention of the LOA rules
as read with clause 20.3.7 of the employee’s contract of employment.”
The relevant LOA rule is set out in clause 3.2.1(b) of the Code. It provides thus:
“(b)
If the transaction is a replacement, the intermediary must inform and counsel the client appropriately
and must complete the RPAR (Annexure 3) in consultation with the client. Member officers may decide whether they wish to have this
signed.”
Clause 20.3.7 of the employee’s contract of employment reads as follows:
“20.3.7 Vervanging van bestaande aansoeke of polisse soos in die
Vervangingsooreenkoms omskryf, waar die Werknemer bewus
dat n vervanging plaasvind, die vervanging ongetwyfeld nie in
belang van die kli?nt was nie en nie in die aansoekvorm vermeld
nie,”.
[11]
The appellant was represented by Mr Johannes Joost van Heerden (“Van Heerden”) in the disciplinary
inquiry. Van Heerden was the appellant’s compliance consultant. The employee represented himself. Van Heerden led evidence
in the inquiry. The appellant did not call the client to testify. It relied, essentially, on the evidence of Mr. Simon van der Merwe
(“Van der Merwe”), the audit manager of Sage Life. Much of his testimony was common cause. In essence, Van der Merwe
testified with regard to the contents of the proposal form which Sage Life received after the consultation between the employee and
the client.
[12]
Van der Merwe testified about the manner in which Sage Life handled matters arising out of clause 14
relating to the replacement of an insurance policy. He testified that the old policy was surrendered on 24 May 1999 and that Sage
Life did not receive the RPAR. At first, Van der Merwe testified that he could not say who had initiated the surrender application.
After the letter of complaint had been read into the record, he testified that, based on the letter and the date on which the proposal
form was signed, the employee was the initiator of the surrender of the old policy.
[13]
Van der Merwe explained that the basic rules of LOA were that, when a proposal was sought or received in respect of a new assurance
policy, the intermediary and insurer were obliged to establish whether such a policy was a replacement policy or not. If it was,
the client had to be properly counselled on the consequences of a replacement so as to enable him to make a fully informed decision
regarding the replacement and the RPAR had to be completed. If it was not, the RPAR would not be required. Van der Merwe testified
further that the employee was paid a commission on the new policy in the sum of R4059.60 which amount would have been debited to
the account of the client. Van der Merwe explained the advantages and disadvantages of each policy and concluded that the new policy
was “commission driven”.
[14]
The employee also testified in the disciplinary inquiry. He denied the allegations made against him.
When the chairman of the disciplinary inquiry asked him to give his version of what had taken place, the employee refused to do so.
He responded thus:
“Ek dink nie ek moet op hierdie stadium dit doen nie. Ek dink ons moet ons bepaal by die klag, met alle respek. Die klag is dat ek
‘n valse verklaring gemaak het. Ek dink nie ek moet van ‘n ander ding aangekla as dat ek ‘n valse verklaring afgelê
het nie. Daardie punt betwis ek. Soos ek sê, dit is nie korrek nie. Ek wil nie enige ander kommentaar lewer daaroor nie.”
[15
Under cross-examination by Van Heerden, the employee admitted having assisted the client by completing
the proposal form. He testified that he answered the question in clause 14 in the negative on instructions of the client. He testified
further that he discussed replacement with the client. When asked whether he had been aware that replacement was going to take place,
the employee testified that ‘daar was ‘n vervanging ter sprake gewees. Ek kan nie sê date ek op daardie oomblik
bewus was van ‘n vervanging wat sou plaasvind nie, maar daar was ’n vervanging ter sprake gewees’. Van Heerden
put to him that ‘… U tree op as ‘n agent van ‘n lewensversekeraar. So alhoewel u voorsien het dat hierdie
‘n moontlike valse verklaring is, het u nog steeds op instruksie van die kliënt ‘n wanvoorstelling aan die versekeraar
gemaak deur dit nie te openbaar nie.’ The employee responded thus :
“Dit is korrek. Ek gaan nie toelaat dat u my in ‘n hoek druk om te sê ek was bewus of nie bewus daarvan nie. Hier is ‘n
aantyging teen my gemaak dat ek ‘n valse verklaring afgelê het en ek wil net herhaal vir u was ek non-nou gesê
het. Ek het ‘n vorm voltooi-dit is dee van my werk, die kliënt het die verklaring afgelê en geteken.”
[16]
The employee further admitted having signed the declaration in clause 16. However he testified that the
declaration in clause 16 ‘sê nie dat ek ‘n valse verklaring geteken het nie. Dit sê dat ek met die kli?nt
bespreek het en ek is bewus van ‘n S-verwysing. Dit beteken nog nie ek het ‘n valse verklaring afgelê nie.’
At that stage of the inquiry the Chairman inquired from Van Heerden ‘of daar enige ander soortgelyk sake is wat teen mnr van
Staden ondersoek word waarop hy bevestiging kry dat daar so ‘n ondersoek is wat nog nie afgehandel is nie.’ Van Heerden
indicated that the charge would not be amended. No further witnesses were called.
[17]
The chairman of the disciplinary inquiry found the employee not guilty in respect of the allegation of
making a false statement. However, he did find him guilty of the allegation of misrepresentation. He gave the following purported
reasons for this latter finding, that:
“a)
Dat u u posisie misbruik het deur ‘n nuwe polis vir die kliënt J I Khosa as vervanging
van ‘n bestaande polis, vir eie finansiële gewin. Die stap hou geen voordeel vir die kli?nt in nie, wat ook
aanleiding to sy skriftelike klagte van 20 September 1999 gegee het;
b)
Dat u die riglyne soos vervat in die vervangingskode van die Vereniging van Lewensversekeraars
van Suid-Afrika opsetlik verbreek het deur nee te antwoord op die vraag of dit ‘n vervangende polis is trewyl uself erken het
dat u bewus was dat dit wel ‘n vervangende polis was.”.
According to the parties’ legal representatives before us the English translation of the above is -
“a)
That you abused your position by a new policy for the client JI Khoza as a replacement for
an existing policy, for own financial gain. The step is not to the benefit of the client, which gave rise to his written complaint
of 20 September 1999.
b)
That you intentionally transgressed the guidelines contained in the replacement code of the
Life Officers Association of South Africa by answering no to the question whether it is a replacement policy whereas you have admitted
that you were aware that it was a replacement policy.”
Regarding the sanction the chairperson decided that the employee be dismissed. The employee noted an internal appeal against the decision
of the chairman of the disciplinary inquiry. The chairman of the appeal hearing dismissed the appeal and confirmed the decision to
dismiss the employee.
Arbitration proceedings
[18]
A dispute then arose between the employee and the appellant about the fairness or otherwise of the dismissal.
The employee referred the dispute to the CCMA for, initially, conciliation and, eventually, arbitration. The issue for determination
in the arbitration was whether the dismissal was substantively fair or not. The procedural fairness of the dismissal was not in dispute.
During the arbitration the appellant was represented by an attorney, a Mr Ferreira. The employee appeared in person. The employee
presented certain documentation which included the minutes of the disciplinary enquiry, the minutes of the appeal hearing and the
LOA rules. By agreement between the parties the minutes were admitted as evidence. The other documents, including the LOA rules,
were admitted as what they purported to be. The commissioner spelled out the nature of the arbitration proceedings. He remarked that the arbitration
was a hearing de novo and that, if the dismissal was not in dispute, the appellant bore the onus to prove the fairness of the dismissal. This statement
was based on s 188(1) of the Act.
[19]
In the arbitration Mr Ferreira did not call the client to testify. Van Heerden testified on behalf of
the appellant. He testified mainly with reference to the transcript of the disciplinary inquiry against the employee so as ‘to
give a general overview of the proceedings…’ He testified further that, as a compliance consultant, he had to ensure
that the appellant adhered to new legislation and dealt with the appellant’s disciplinary matters. He further testified that,
in terms of clause 20.3.7 of his contract of employment with the appellant, the employee was bound by the LOA rules.
[20]
Van Heerden testified that the employee had contravened the LOA rules because he had misrepresented or
given false information to the client in that, whilst he knew that there existed an old policy, he failed–
(a)
to indicate on the proposal form to Sage Life that the new policy was replacing the old policy;
and
(b)
to explain the consequences of such replacement to the client.
[21]
During Van Heerden’s cross examination by the employee the latter put it to Van Heerden that he
(i.e. the employee) had answered the question in clause 14 in the negative ‘under the instruction of [the client]’ and
that the client was ‘unsure about the situation…’ Van Heerden’s response was –
“In general there are no indications of any of these discussions with the client and Mr Van Staden did not use the opportunity in the
disciplinary matter to put forward his argument that he has now chose (sic)...
. . .
… Well, my comment is it is very improbable…”
Of course, Van Heerden’s answer to such question was irrelevant because he had no personal knowledge of the discussion that
had taken place between the employee and the client.
[22]
In the arbitration the employee repeated the defence he had raised in the disciplinary inquiry that he
had not made any misrepresentation or false statement. According to him the arrears on the payment of the installments on the client’s
bond were occasioned by, among other things, by the fact that the client had been furnished with inaccurate information by ABSA concerning
the repayment of the bond and that there had been a duplication of insurance on his bond. He testified that no decision to replace
the existing policies had been taken during the consultation between himself and the client or soon thereafter. He also testified
that he had been unaware of the cancellation of the old policy until this fact was brought to his attention in the inquiry. He testified
further that, had the client heeded his advice, the arrears in his bond would have been reduced, the duplication on his bond insurance
would have been rectified and the monthly insurance costs on the bond could have remained the same.
[23]
The employee testified further that he had given the client the best advice that he could. According
to him, the fairness of the dismissal turned on the answer to the question in clause 14. He testified further that, if the client
had decided to cancel the old policy, the answer to the question in clause 14 would have been in the affirmative and the RPAR would
have been completed. He further testified that, although the various options had been discussed, the client had not been sure whether
he should continue with the existing policies or not. He testified that the client had been surprised that his bond was in arrears
because he had been paying for four years. The employee testified that the client could also not understand how two insurance policies
had been debited to his bond. The employee further testified that, after he had discussed the various options with the client, he
advised the client that the question in clause 14 had to be answered. He testified that the client was not sure at that stage whether
or not to go ahead with the suggestion of canceling the existing policies and replacing them with a new one. The employee informed
the commissioner that he told the client that the decision was his (i.e. the client’s) and that the question in clause 14 had
to be answered with either, ‘yes’ or ‘no’ but the client was not sure. The employee testified that finally
the client had told him to answer the question in the negative and had then said: ‘… because I do not know what I want
to do’ and that ‘[a]lthough we can apply for the cover I do not know whether I am going to cancel those policies’.
He testified that the client, after the completion of the proposal form, had signed a declaration to the effect that the answers
given in the proposal form were true and correct. The employee testified that he had signed the declaration under clause 16 ‘as
an introducer’ to confirm that he had explained the questions in the proposal form to the client’. As to the relief,
the employee sought compensation equivalent to 12 months’ remuneration. He testified that his remuneration had been R45 000.00
per month.
[24]
At the commencement of the cross-examination of the employee Mr. Ferreira asked the employee whether
he intended calling the client as his witness. When the employee answered in the negative, Mr. Ferreira put it to him that his ‘credibility
on the evidence he tendered is very important.’ The following discussion ensued when Mr. Ferreira suggested to the employee
that the new policy was intended to replace the old policy:
“Not hundred percent correct, Mr. Ferreira. Our discussion went along
the way in that direction. When coming to question 14, I have testified that the client was not sure, so at that stage we could not
make a decision. He could not make a decision and I could not make it for him. That is what I have said.
……
But the whole discussion concerning this, the replacement was involved. So, there has not, replacement has not happened at that stage.’
…
MR FERREIRA: Jy sê jy het punt 14 met die kliënt bespreek. ---Yes, I have said it.
‘Hoekom het jy dit met die kli?nt bespreek? Was jy bewus dat daar ‘n vervanging gaan plaasvind.’?
…
---Exactly. It is exactly, I do not have to rephrase that . . . I stated in Afrikaans daar was ‘n vervanging tersprake. Ek
kan nie sê dat ek op die oomblik bewus was van ‘n vervanging wat sou plaasvind nie maar daar was ‘n vervanging
ter sprake …
Yes, but you have testified there was a great possibility in that this policy must be replaced… --- But that is, exactly, Mr.
Ferreira. We are talking about possibilities now. We are not talking about facts (?)”
The employee testified further, under cross examination, that he was entitled to earn a
commission regardless of the answer to the question in clause 14. No further witnesses were thereafter called.
[25]
The commissioner found the dismissal substantively unfair. He ordered the appellant to compensate the
employee in an amount of R540 000.00 being an equivalent of twelve months’ remuneration at the rate of R45 000.00 per month.
The commissioner articulated his reasons for his finding thus:
“The issue in this case is centered on question 14… According to the [appellant], the [employee] was not supposed to
answer question 14 in the negative but was supposed to answer it in the positive. That being the view held by the [appellant] the
facts before me is that the question itself has been answered in any event in the negative. There is no dispute about that.
. . .
As pointed out earlier the evidence presented at the arbitration points out that the question was answered in the negative. That being
the answer, the proviso that the introducer must discuss and complete replacement advise record does not apply. At the end of [the
proposal form] there was a declaration by [the client] declaring that he has answered all the questions truly and correctly. At the
bottom of [the proposal form] the [employee] reported that and certified that he had explained the meaning of question 14 and confirmed
that he is aware of the possible detrimental consequences and confirmed that he is fully conversant with the LOA rules and accept
the consequences thereof.
… [T]he [appellant’s basis of the dismissal is that the [employee] at the time of proposing this insurance cover was aware that
[the client] was covered by another policy and accordingly the second policy should be a replacement policy. Unfortunately the only
evidence at my disposal to point out what the second policy was is document “K”. According to document “K”
the person to be assured declared that the subsequent policy was not a replacement policy. If I am to accept that the only evidence
reflecting the intentions of [the client] is document “K”, then it follows that it was not necessary for the applicant
to complete the so-called replacement record (i.e. annexure 3 to the LOA rules) or to comply with
the LOA rules.”.
Again I cannot ignore the evidence of the [employee] . . . that the policy allegedly to replace was only cancelled on the 24 May 1999.
This support (sic) the [employee’s] version that [the client] as at 21 May 1999 was not sure whether he was going to replace
or cancel the existing policy.
. . .
…In this case there is no dispute that the [employee] was dismissed and accordingly the onus was on the [appellant] to prove that there
existed a fair reason for a dismissal.
In my view the [appellant] has failed to discharge its onus that the [employee] had contravened any work rule and or the [employee]
misrepresented facts as alleged and therefore contravened the LOA rules together with the contract of employment and the disciplinary
code and procedure.”
Review proceedings
[26]
Aggrieved by the commissioner’s award, the appellant launched an application in the Labour Court
for the review and setting aside of the award essentially on the grounds that the commissioner -
(a)
had failed to appreciate the full extent of the employee’s contravention of the LOA rules,
thereby rendering the award unjustifiable as contemplated in s 145 of the Act;
(b)
had misconstrued the evidence placed before him, the contention being that he should have concluded
that the employee had deliberately answered the question in clause 14 in the negative so as to obviate the need to explain the consequences
of a replacement policy to the client so as to earn a commission which he would otherwise not have been entitled to; and
(c)
had failed to exercise his discretion in terms of s 194(2) when deciding on the compensation to
be awarded to the employee.
Allegations were made in the review application, inter alia, that the
complaint by the client was that the employee had sold a replacement
life policy to him without explaining the consequences of such a
transaction to him as required by clause 3.2.1.(b) of the LOA rules.
[27]
The court a quo dismissed the application with costs. It concluded, with regard to the grounds in (a) and (b), above, that the appellant had not shown
any basis to justify interference with the award. With regard to the third ground it found no sustainable basis for the contention
that the award was excessive.
The appeal
[28]
On appeal Counsel for the appellant was specifically asked to specify exactly what the employee’s
conduct was for which he had been dismissed and on which the appellant relied to contend that the employee was fairly dismissed.
Counsel pointed out that such conduct was that the employee had made a false declaration in clause 16 of the proposal form in that
he certified therein that he had explained the meaning of the question in clause 14 to the client when he, in fact, had not done
so. He submitted further that the commissioner had misconstrued the evidence and that this had led to him issuing an award that was
unjustifiable and stood to be reviewed and set aside. Counsel for the appellant referred to some evidence presented by the employee
during the arbitration when the latter testified that he had discussed replacement with the client. Counsel submitted that there
was no way in which the client would have decided to submit the proposal form that he submitted if replacement had been discussed with him. He pointed out that the taking out of the new policy would not have addressed the client’s
precarious financial position but would have made it worse. It was on the basis of this logic that counsel submitted that the conclusion
must be drawn that the employee’s declaration that he had explained clause 14 to the client was probably false.
[29]
The attorney who appeared on behalf of the employee submitted that clause 16 in the proposal form never
formed part of the charge. He submitted that the case which the employee had to meet in the disciplinary inquiry, the arbitration
proceedings and the appellant’s case in the court a quo was that, by supplying “no” as the answer to the question in clause 14, the employee had made a representation that the
proposal was not to replace an existing policy when, in fact, it was. Mr. Kocks submitted that this was, according to the appellant,
the misrepresentation. In this regard Mr Kocks pointed to a number of areas in the record in support of this contention.
[30]
With regard to what the appellant’s case against the employee has been through the various stages,
a perusal of the record reveals the following:
(a)
the charge against the employee made no reference to the employee having made a false declaration;
(b)
in finding the employee guilty of the second part of the charge which he regarded as misrepresentation,
the chairman of the disciplinary inquiry advanced the reasons referred to in paragraph 17, above, as his reasons. There was, manifestly,
no reference at all to the employee having allegedly made a false declaration in clause 16;
(c)
during the arbitration proceedings the commissioner stated the appellant’s case, as he understood
it, thus: ‘Mr Van Staden according to [van Heerden ] the case for the [appellant] is not that you have fixed policies…The
case of the [appellant]…is that there was a question set out in the questionnaire … [w]hich question was answered in
the negative whereas the truth of the matter is, it is yes… That is the [appellant’s] case.’. The appellant’s
counsel did not say that this did not correctly reflect the appellant’s case;
(d)
in his award the commissioner remarked that ‘[t]he issue in this case is centered around question
14 of [the proposal form]’;
(e)
in the arbitration Van Heerden testified that at the disciplinary inquiry, he had questioned Van
der Merwe about clause 14;
(f)
during Van Heerden’s cross-examination the employee asked Van Heerden whether the cause of
the appellant’s unhappiness was about the answering of the