IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)

						                    	Case no: JR 3034/05
                                                                                                 
In the matter between:

MUNNIK BASSON DAGAMA	                                        Applicant

and

 MOTLATJO RALEFATANE N.O.                               First Respondent

THE COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION                        Second Respondent

HENRIETA SORAYA DU PREEZ                             Third Respondent

JUDGMENT

MOSHOANA AJ

Introduction

[1]	This is a review application brought in terms of section 145 of the Labour Relations Act to review and set aside an arbitration award handed down by the first respondent on 29 September 2005.

	Background facts

[2]	In January 2000, the applicant employed the third respondent as a debt collector. During or about May 2005, the third respondent was called before a disciplinary hearing to face allegations of use of abusive language and aggressive behaviour within the call centre. It appears that three witnesses were called to sustain the charge (Liezel George, Cyntia Moloko and Cora). It further appears that the chairperson of the disciplinary hearing, (one Wayne Hambly) was satisfied with the evidence presented before him that the third respondent was guilty. The third respondent was dismissed on account of misconduct (use of abusive language and aggressive behaviour within the call centre).

[3]	The third respondent was aggrieved by the dismissal and referred same to be determined by the second respondent (CCMA). The second respondent appointed the first respondent (the commissioner) to arbitrate the dispute about the fairness of the dismissal.

[4]	At the arbitration proceedings, the applicant in an attempt to justify the dismissal called two witnesses (namely Andre Du Toit and Wayne Hambly). 

[5]	Both this witnesses did not testify at the disciplinary inquiry. Mr Wayne Hambly was the chairperson of the inquiry. Mr Du Toit is the Group HR manager of the applicant.

[6]	After hearing evidence, the first respondent issued an award, wherein she found that the dismissal was substantively unfair and ordered the applicant to pay compensation of 10 months to the third respondent.

[7]	Aggrieved by the award, the applicant launched an application for review.

	Grounds of review

[8]	The applicant raised concern that the first respondent failed to take into account the fact that the third respondent pleaded guilty. The applicant also stated that the minutes of the hearing were before the first respondent and she ought to have found that the third respondent used abusive language despite the failure to call Liezel George to give evidence.

[9]	The second complaint is about failure to take into account two previous warnings issued against the third respondent. In the applicant’s view such documents had probative value.

[10]	The third complaint is about the emphasis placed by the first respondent on the absence of Liezel George to testify. In the applicants view she ought to have taken into account the surrounding facts and circumstances like, the applicant having pleaded guilty and the previous incidences of warnings.

[11]    The first respondent was further critised for placing too much focus on the fact that she had only the third respondent’s version about the allegations of using abusive language.	 

[12]	In general, the applicant made a bald allegation that the first respondent, misdirected herself, committed gross irregularity in the proceedings, failed to apply her mind to the facts presented and exceeded her powers.

[13]	In the supplementary affidavit, other than confirming by reference to the record its views of the matter, the applicant did not raise further new grounds.

	The award

[14]	The first respondent concluded in her award that, the evidence relating to what occurred on that day is only that of the third respondent. The applicant called Andre Du Toit to testify and he presented hearsay evidence.

[15]	This conclusion is consistent with the evidence before her. At the arbitration hearing, the said Du Toit said the following:
	“The abusive language, was it mentioned what I said in the call centre- I will call the chairman as witness. I will call chairman as witness”.

[16]	When the chairman was called, he testified at the arbitration as follows:
	“All three witnesses said that Soraya swore. All three of them said that the office came to a standstill. All three of them said that this happened previously as well when Soraya had sworn as well”.

[17]	The first respondent further concluded that there was no evidence that suggested that the three witnesses testified as to what transpired during the exchange of words between the applicant and Liezel and none of the three witnesses were called to testify at the arbitration hearing.

[18]	This conclusion is consistent with the material before her. Fact that the three witnesses which included the complainant did not testify is common cause.

[19]	The first respondent also concluded that the arbitration hearing is not a review of the disciplinary hearing but a hearing de novo.

[20]	The first respondent went on to conclude that from the record of the hearing appears the fact that the chairperson took into account alleged previous unacceptable behaviour, evidence of which was not before her.

[21]	 She further concluded that there was no evidence before her that shows that the third respondent was rude towards Liezel. The witnesses before her at the arbitration could not tell her the exact words that were uttered by the third respondent to Liezel.
[22]	 These conclusions are consistent with the evidence before her at arbitration.

	Grounds of review considered

[23]	The issue of pleading guilty to the charges at the disciplinary hearing was disputed by the third respondent at the arbitration hearing.

[24]	Hambly when asked by the first respondent, he testified as follows:
	“Did she plead guilty in the hearing?- Yes, she did.
	Guilty of what?- Guilty of using abusive language in the office and her outbursts”.

[25]	In cross-examination he testified as follows:
	“Okay. Did she tell you what language I used at the time- Yes she did.
	What? Can you just mention to the…?- She said that she put to you, you must give me my fucking money”.

[26]	The portions in the record relied on to prove that she pleaded guilty at the disciplinary hearing deal with her admission of having said “do not piss on my battery” and according to her that is not vulgar. This in the Court’s interpretation does not suggest pleading guilty at the disciplinary hearing.

[27]	If indeed the third respondent pleaded guilty at the disciplinary hearing this statement would not make sense:
	“I am therefore satisfied based on all evidence presented to me by yourself and the initator that the use of abusive language and your aggressive behaviour within the call centre is of concern and I find you guilty”.
This statement emanate from the report of Wayne Hambly which was before the arbitrator.

[28]	It is therefore clear that the third respondent never pleaded guilty. If it was so, one would have expected that the three witnesses called at the disciplinary hearing not to testify in an attempt to prove the charge. Therefore failure to take into account a fact that did not take place is not reviewable. Accordingly the first ground must fail.

[29]	Failure to take into account of previous warnings is not reviewable. She ought not have taken that into account. All she was concerned with was whether the third respondent is guilty of the misconduct that she was dismissed on account of. This in any event would be inadmissible evidence (character evidence) before she could make a finding of guilty. The fact that she did not make a finding of guilty entitled her not to take those into account.

[30]	Placing emphasis on the fact that Liezel George was not there is correct, particularly because she is the complainant. She is the one who had been abused and insulted.

[31]	In order to sustain the allegation of misconduct, the applicant ought to have presented her evidence before the first respondent.

[32]	Ironically, the applicant deemed it fit and appropriate to rely on her evidence to enable Wayne Hambly to return the finding of guilty as he did.

[33]	Accordingly this ground must also fail.

[34]	The fact that there was no contradictory version, is important for the determination of any dispute. On the issue of what actually occurred on the day the first respondent had the version of the third respondent. That is a factor that she had to emphasise in her award to support her conclusion. The fact that she did so is not reviewable. Accordingly this ground should fail too.

[35]	The first respondent did not misdirected herself, she committed no gross irregularity, she did not fail to apply the law to the facts and she did not exceed her powers.

	Order

[36]	In the result I make the following order:

	1. The review application is dismissed with costs.

_______________________    
 G N MOSHOANA
 Acting Judge of the Labour Court

Date of Hearing:                        26 September 2007
Date of Judgement:                    04 October 2007 

APPEARANCES:

For the Applicant:  	Adv Ernest Hutchinson
Instructed by                              Fluxmans Incorporated
					
For the Respondent:         	Adv Soko
Instructed by                              Shingange Attorneys