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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Reportable

Case no: JR1201/2014

POPCRU GROUP OF COMPANIES                                                                          Applicant

And

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION                                                                 First Respondent

W KOEKMOER N.O                                                                                 Second Respondent

BUSISIWE DUMAS                                                                                      Third Respondent

Heard:           15 July 2016

Delivered:     18 October 2016

Summary:     Review of arbitration award that arbitrator had not complied with rule 25 (1) (c) of the Rules for the Conduct of Proceedings before the CCMA concerning legal representation, had refused to grant a postponement, erroneously found that the dismissal was procedurally and substantively unfair and the amount of compensation was irrational. Application dismissed because the applicant's representative did not object to legal representation and the arbitrator's decisions were not decisions which a reasonable decision-maker could not reach.

JUDGMENT

BAILEY, AJ

Introduction

[1] This is an application by the POPCRU Group of Companies (Pty) Ltd    (the Applicant) to have an arbitration award of the Second Respondent, Willem Koekemoer (the commissioner), who is a commissioner of the first respondent, the Commission for Conciliation Mediation and Arbitration (the CCMA), reviewed and set aside.

[2] The review arises out of the commissioner having found that the Applicant's dismissal of the Third Respondent, Busisiwe Dumas (Dumas) was procedurally and substantively unfair and having consequently ordered the Applicant to pay Dumas the equivalent of nine months remuneration of R399 000.06.

[3] On 7 June 2016 this court granted the Applicant condonation for the late filing of the Applicant's supplementary affidavit. A question also arose in the review application papers whether or not it was necessary for the Applicant's senior risk manager, Philip Tshwale, to show that he was duly authorised to depose to an affidavit on behalf of the Applicant in support of the Applicant's application for review. Ultimately, this question was not in issue at the hearing before me and it is therefore not necessary for me to deal with it in this judgement.

Grounds of review

[4] The Applicant raised a point in limine as a ground for review that the commissioner had not complied with rule 25 (1) (c) of the Rules for the Conduct of Proceedings before the CCMA (the rules).

[5] The Applicant's grounds for reviewing the arbitration award concerned:

a.    the commissioner's refusal to grant the Applicant's request for a postponement;

b.    the commissioner's finding that the Applicant's dismissal of Dumas was procedurally and substantively unfair; and

c.    the amount of compensation the commissioner awarded to Dumas.

[6] I now consider each in turn.

Point in limine

[7] Rule 25 of the rules deals with representation before the CCMA. More specifically, subrule 25 (1) (c) provides that if the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee's conduct or capacity, a party is not entitled to be represented by a legal practitioner in the proceedings unless:

a.    the commissioner and all the other parties consent;

b.    the commissioner concluded that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering:

i.    the nature of the questions of law raised by the dispute;

ii.    the complexity of the dispute;

iii.    the public interest; and

iv.    the comparative ability of the opposing parties or their representatives to deal with the dispute.

[8] The Applicant relied on the judgement of Scholtz v Maseko and Others[1] to support its submission that the commissioner was obliged to mero motu interrogate the issue of legal representation during arbitration proceedings, had not done so and consequently the playing fields between the parties were not level at the arbitration proceedings. The Scholtz case interpreted the since repealed section 140 (1) of the Labour Relations Act[2] and the Applicant submitted that the wording of that repealed section is embodied in subrule 25 (1) (c) of the rules.

[9] Notwithstanding the Applicant's reliance on the Scholtz case, I am satisfied that the Applicant's representative at the arbitration proceedings did not object to Dumas being represented at the arbitration and since there was no absence of consent, the commissioner, who is afforded considerable latitude in allowing legal representation, allowed the arbitration to proceed.

[10] Moreover, I am not as sanguine as the Applicant that its representative at the arbitration proceedings was as ignorant and poorly prepared as the applicant would have it. The record of the proceedings reveals that when Commissioner L Nowosenetz postponed the arbitration proceedings at the CCMA on 16 January 2014 and made a costs order against the Applicant, he in both his oral and subsequent written ruling referred to the Applicant being represented by an advocate which did not need application of rule 25 because the postponement was an in limine issue.  

[11] The application of rule 25 could not therefore have come as a surprise to the Applicant's representative when the arbitration was rescheduled for hearing at the CCMA on 22 April 2014 and the Applicant's point in limine must therefore fail.

The commissioner's refusal to grant the applicant's request for a postponement

[12] The Applicant contends that the commissioner acted unreasonably when he refused the Applicant's request to postpone the arbitration proceedings on 22 April 2016. The Applicant contends further that the commissioner should have first given the Applicant's representative the opportunity to contact the Applicant's witnesses to secure their attendance at the arbitration proceedings or to have postponed the proceedings and made an adverse costs order.

[13] I do not agree. It is well established in our law that postponements are not there for the taking. In my view, the Applicant correctly concedes in its supplementary affidavit that the commissioner was well within his rights to refuse the applicant a postponement arising out of what the Applicant describes as the "bona fide but mistaken belief" that the review of Commissioner Nowosenetz's order of costs stayed further arbitration proceedings concerning the dispute between the parties.

[14] The record itself is most revealing. It reveals that the Applicant's representative had not told the Applicant that its witnesses did not have to attend the arbitration proceedings. Rather, it had been the Applicant's decision and not the Applicant's representative's advice to instruct the Applicant's representative to raise the point in limine that the Applicant's witnesses would not be present because Commissioner Nowosenetz's order of costs arising out of the postponement on 16 January 2014 was being taken on review.

[15] The record further reveals that the commissioner considered the in limine application for a postponement to be a "shot in the dark" and refused to postpone the proceedings because there was no basis for a postponement.

[16] Accordingly, I am satisfied that the commissioner did not act unreasonably when he refused the application for the postponement and  proceeded to hear the dispute.

Procedural fairness

[17] Although the Applicant requested Dumas to make written representations and the Applicant's representative at the arbitration submitted that her representations were thoroughly considered, the commissioner was in my view correct to find that the Applicant had failed to follow a fair procedure when it dismissed Dumas. The Applicant was at the very least bound to hold an enquiry and give Dumas an opportunity to see and cross-examine her accusers before dismissing her. Moreover, the Applicant's representative at the arbitration did not suggest that there were good reasons for deviating from the general rule that a fair process at the very least requires holding an enquiry. Consequently, this ground of review must fail.

Substantive fairness

[18] In my view, the Applicant's conduct renders it the author of its own demise. The cavalier procedure it followed when dismissing Dumas was compounded by its failure to place itself in a position at the arbitration to discharge the onus borne by it that the dismissal was substantively fair.

[19] Ultimately, the commissioner was left with Dumas' version. The commissioner found that there was no reason to doubt the truthfulness of Dumas' evidence and her version was inherently probable, which led to his decision on a balance of probabilities that no fair reason existed for the dismissal. In short, I am satisfied that the commissioner evaluated the facts presented to him, took into account the applicant's representative's arguments concerning hearsay evidence and came to the reasonable conclusion on a balance of probabilities that Dumas' was substantively unfair. Consequently, this ground of review must fail.

Irrationality of the commissioner's award concerning the amount of compensation

[20] I am not persuaded that the amount of the commissioner's award for compensation was irrational. The commissioner was correct to take into account the gross procedural and substantive unfairness of Dumas' dismissal, her monthly salary, her attempts to obtain alternative employment and subsequent continued unemployment, as well as her late referral of the dispute to the CCMA and the length of her employment with the applicant. In my view, these considerations and the amount of the compensation render the commissioner's decision reasonable. Consequently, this ground of review must fail.

Costs

[21] I see no reason to depart from the general rule that the costs should follow the result.

Order

[22] The application for review is dismissed with costs.

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Bailey, AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant:                        Advocate M Musandiwa

Instructed by:                              Motsoeneng Bill Attorneys

For the Third Respondent:          Advocate K Selala        

Instructed by:                              Tsoku Mashishi Attorneys

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