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Krishna Pillay t/a Smokers Discount World v Govender NO and Others (D480/98) [1998] ZALC 146 (1 November 1998)

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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT DURBAN

CASE NO. D480/98

In the matter between:

KRISHNA PILLAY t/a SMOKERS FIRST APPLICANT

DISCOUNT WORLD

and

COMMISSIONER S. M. GOVENDER FIRST RESPONDENT

COMMISSION FOR CONCILIATION, SECOND RESPONDENT

MEDIATION AND ARBITRATION

SIVALINGUM MOODLEY THIRD RESPONDENT

_______________________________________________________________

JUDGMENT

_______________________________________________________________

MASERUMULE AJ

[1] The applicant has brought this application in terms of section 158(1)(g) of the Labour Relations Act, 66 of 1995.(the “Act”) The application is for the review of an arbitration award.

[2] It is now trite that arbitration awards are to be reviewed in terms of section 145 of the Act. In view of the confusion that reigned in this Court until the issue was clarified by the Labour Appeal Court in CAREPHONE (PTY) LTD v MARCUS NO; JA 52/98 (unreported), I will nonetheless consider the application as if it had been brought in terms of section 145 of the Act.

[3] The first respondent arbitrated a dispute involving the alleged unfair dismissal of the third respondent by the applicant. The first respondent found the dismissal to have been unfair and ordered the applicant to compensate him in an amount of R9000,00.

[4] The award is attacked on the basis that the first respondent committed a gross irregularity, or misconducted himself or exceeded his powers.

[5] The real attack, however, as argued before me by Mr Naidoo, who appeared on behalf of the applicant, was that the first respondent committed a gross irregularity by requiring the applicant to explain his late arrival at the arbitration hearing before the third respondent had finished giving evidence. What occurred is set out hereunder :

[6] The arbitration hearing was set down for hearing on 30 April 1998 at 9h30. When the applicant’s representative failed to arrive, the first respondent telephoned the applicant’s premises and spoke to a female, apparently Mr Pillay’s wife. Mr Pillay is the proprietor of the applicant. She informed the Commissioner that she had been telephoned by Mr Pillay who was under the impression that the hearing was to commence at 12h00 and who had in the meantime, gone shopping. The Commissioner informed her that if Mr Pillay did not arrive at the hearing by 10h00, the hearing would proceed by way of default.

[7] The arbitration commenced in the applicant’s absence as he was not there at 10h00. Mr Pillay eventually arrived at 10h30 while the third respondent was giving evidence. The Commissioner stopped the proceedings and requested Mr Pillay to explain, under oath, why he was late . The explanation given by Mr Pillay was that his car had a puncture en route to the arbitration which contradicted what his wife had told the Commissioner. The Commissioner nonetheless accepted his apology and he was allowed to join the proceedings. The third respondent then resumed with his evidence and was cross-examined by Mr Pillay. Mr Pillay also gave evidence.

[8] On 14 May 1997, the Commissioner handed down his award. In his award he castigated Mr Pillay for his late arrival and the criticised the explanation tendered, having regard to the facts set out above. He also found that Mr Pillay was not a credible witness in so far as the merits of the dispute were concerned, rejected his evidence and accepted that of the third respondent.

[9] Mr Naidoo submitted that it was a gross irregularity for the Commissioner

to interrupt the third respondent’s evidence and require Mr Pillay to explain

his late coming. His contention is that the Commissioner formed a negative view about Mr Pillay ‘s credibility before he gave evidence on the merits and that this vitiates the entire proceedings.

[10] I do not agree with Mr Naidoo’s submissions that the Commissioner

committed a reviewable gross irregularity in the conduct of the proceedings. The proceedings had commenced by way of default and the applicant was required to provide an acceptable explanation before he could be allowed to take part therein. The Commissioner did not express his views about Mr Pillay’s credibility until 14 May when he handed down the award. It may well have been an unusual step to take as the Commissioner could have waited until the third respondent had finished with his evidence before requiring Mr Pillay to explain his late arrival. Unusual, yes, but not a gross irregularity which vitiates the proceedings.

[11] In terms of section 138 of the Act, a Commissioner must conduct the arbitration proceedings in a manner that he or she considers appropriate. This provision was interpreted by Mlambo J in PPAWU AND ANOTHER v COMMISSIONER : CCMA (PORT ELIZABETH) [1998] 5 BLLR 499(LC) as to mean that arbitration proceedings need not be conducted in a strictly formalistic manner and should not be “taxed withstrict formalities as apply to courts of law.” (at 500J and 501C)

12] A gross irregularity in arbitration proceedings must be of such a nature that it results in an aggrieved party not having his or her case fully and fairly determined, before this court can interfere on review, see MOLOI v EUIJEN AND ANOTHER [1997] 8 BLLR 1022 (LC) at 1026 E-J

[13] I am not persuaded that the Commissioner’s conduct, in requiring Mr Pillay to explain his late coming before the third respondent had completed his testimony, resulted in the applicant’s case not being fully and fairly determined. Even if it could be argued that it was an unusual procedure and therefore an irregularity, I am still not persuaded that it was gross and thus warrants an interference with the award.

[14] The applicant’s contention that his credibility was decided before he gave evidence on the merits cannot be sustained. An analysis of the evidence as summarised by the Commissioner does not support the applicant’s contentions. In addition, even in this court, the applicant, through its representative, made submissions which were contrary to the averments made under oath by Mr Pillay in his founding affidavit. For example, Mr Naidoo submitted that the first respondent was wrong to find that the third respondent had been dismissed as this was not the case. Yet Mr Pillay states unequivocally in his affidavit that he had rightfully dismissed the third respondent and was not required to hold a formal disciplinary hearing beforehand. Mr Pillay had been criticised by the Commissioner for saying in evidence that he had only suspended the third respondent. Such criticisms was indeed, well founded.

[15] As regards the allegation of misconduct by the first respondent, this is premised on what occurred when Mr Pillay arrived at the hearing. The first respondent did not commit an act of misconduct. He adopted a procedure which not everybody will agree with, but this does not amount to “misconduct” within the meaning of section 145.

[16] The first respondent’s finding that the third respondent was unfairly dismissed is not open to criticism. On the evidence placed before him, he reached a conclusion that was rational and justifiable.

[17] The following order is made :

a) The applicant’s application is dismissed;

b) There is no order as to costs.

__________________________

MASERUMULE AJ