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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Reportable

Case No: JR352/21

 

In the matter between:

 

LUCRETIA LUNGI NELISIWE MAETA                                 Applicant

 

and

 

BIDVEST SERVICES (PTY) LTD                                         First Respondent

 

NASREEN JAJBHAY N.O.                                                    Second Respondent

 

TOKISO DISPUTE RESOLUTION                                       Third Respondent

 

Heard:         30 May 2024

Delivered:    4 June 2024

This judgment was handed down electronically by circulation to the parties’ legal representatives by email. The date for hand-down is deemed to be 4 June 2024.

 

JUDGMENT

 

MAKHURA, J

 

[1]  The applicant launched these proceedings in terms of section 145 of the Labour Relations Act[1] (LRA) to review and aside an arbitration award (award) issued by the second respondent (commissioner) under the auspices of Tokiso Dispute Resolution (Tokiso). The award was issued following an inquiry by an arbitrator conducted in terms of section 188A of the LRA. The application is opposed by Bidvest Services (Pty) Ltd (Bidvest), the first respondent in these proceedings.

 

[2]  The applicant was employed by Bidvest as a Chief Human Resources Officer. On 4 November 2020, Bidvest took a decision to suspend the applicant. A letter to that effect was issued and served on the applicant. The reason for suspension was that Bidvest had “become aware that [she] may have committed acts of serious misconduct”. Further, she was informed that the allegations are serious in nature and that if the investigation warrants a disciplinary hearing, the disciplinary sanction may include dismissal. She was then required to return all company equipment including computers, laptops, records and documents. The suspension was with immediate effect.

 

[3]  At 12h05 on Friday, 4 December 2020, the applicant was issued with a charge sheet and notified by email to attend an inquiry before an arbitrator at 9h00 on 10 December 2020. The notification was sent to the applicant’s personal email address and she confirmed having sight of the email after 14h30 on the same day. She forwarded the notice to her attorney at 15h32.

 

[4]  The applicant was charged with two allegations of gross dishonesty. Firstly, it was alleged that in August 2020, she procured 4 laptop bags but Bidvest only received three bags and not the fourth one, which was branded in the name of the applicant’s cousin. Secondly, the applicant was alleged to have “appointed” the company Peem Media and Entertainment (Peem Media) as part of a Supplier Development Agreement and that this “appointment” was conditional on Peem Media paying a portion of their proceeds to her. This latter allegation was also considered to constitute corruption.

 

[5]  In addition, the applicant faced the third charge. Bidvest alleged that the applicant failed to report a conflict of interest in that prior to entering into the agreement with Peem Media, she failed to disclose that she and her family had previous dealings with the owner of Peem Media, Priscilla Malinga.

 

[6]  At 9h09 on Monday, 7 December 2020, Bidvest sent an email to the applicant with an amended charge sheet. Bidvest added a charge of gross negligence as an alternative to charge 2. In terms of this added charge, it was alleged that the applicant failed to take the necessary care and attention to ensure that the relevant safeguards were in place prior to the signing of the Peem Media agreement.

 

[7]  On 8 December 2020, the applicant’s attorneys addressed a letter to Bidvest. The letter made allegations of unfair labour practices committed by Bidvest against the applicant and attached a referral of the unfair labour practice dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The applicant argued that Bidvest should not proceed with the hearing on 10 December 2020 pending the determination of the unfair labour practice dispute referred to the CCMA. In addition, the letter requested further particulars, including video footage allegedly showing the applicant receiving money from the owner of Peem Media, polygraph test results, disciplinary policy, delegation of authority document, Temporary Employees Relief Scheme WhatsApp Group conversations, Supply Chain Policy and Gift Policy, statements of the owner of Peem Media and Supplier Development Agreement with Peem Media. The applicant complained about the amended charge sheet and that she was not afforded adequate time to prepare in respect of the amended charge.

 

[8]  Bidvest responded to the request for further particulars at 13h19 on 9 December 2020. The letter focused primarily on the suspension or unfair labour practice dispute arguments raised by the applicant. Bidvest disputed the applicant’s contention that she was not afforded adequate time. It placed on record that the policy requires that an employee be afforded a minimum of 48 hours between the issuing of the charge sheet and the commencement of the hearing. The letter stated that the result of the polygraph test “will be shared” and attached some of the requested documents.

 

[9]  The inquiry was scheduled to commence at 9h00 on 10 December 2020. The applicant and her attorney arrived approximately two hours late and after they were telephoned because they appeared to have adopted the attitude, wrongly so, that the inquiry was not proceeding or should not be proceeding.

 

[10]  At the commencement of the proceedings, the commissioner confirmed receipt of the bundle of documents from Bidvest and that the applicant was in possession of the same bundle. At that moment, the applicant’s attorney placed on record that they were only provided with Bidvest’s bundle of documents upon their arrival at the venue and that they have not perused and/or consulted on the bundle. The commissioner afforded the applicant to address her in this regard. The applicant accordingly applied for a postponement of the hearing.

 

[11]  The request for postponement was based on two grounds. First, that the inquiry should not proceed pending determination of the applicant’s unfair labour practice dispute referred to the CCMA. This point was raised based on the applicant’s and her attorneys’ misapprehension and misguided view that the inquiry could not proceed pending the determination of that dispute. That point is bad in law and ought not to detain me any further.

 

[12]  The second ground for postponement was the inadequate time afforded to the applicant insofar as Bidvest added another charge on 7 December 2020, the inadequate time to peruse the documents provided on 9 December 2020 and significantly, the fact that they were only provided with Bidvest’s bundle of documents at the start of the hearing. Furthermore, the video footage requested by the applicant on 8 December 2020 was not shared.

 

[13]  In response, Bidvest stressed the need to proceed with the inquiry on the day because it was costing it “a lot of money to run this process”. With regard to the request for further information, Bidvest contended that “the vast majority of the documents in this bundle” were documents it did not intend to use at arbitration but were included to give the applicant more information. Bidvest confirmed that documents such as the statement of the owner of Peem Media, WhatsApp Group messages, Supplier Development Agreement, polygraph test results and policies which were requested by the applicant were made available. Bidvest had not sent the video footage because it was not intending to rely on it but its representative mentioned that he was happy to share it even though he “had never had sight of such a video”.

 

[14]  In reply, the applicant’s representative clarified that the response to the applicant’s request for further particulars was only received on the afternoon of 9 December 2020 and that Bidvest did not discover all the information requested. Further, the applicant clarified that she received part of the documents that she requested on 9 December 2020 and that she only received the Bidvest’s bundle of documents on the day of the hearing.

 

[15]  The commissioner, in an ex tempore ruling, decided that the inquiry should proceed. The reasons that informed the decision to dismiss the application for postponement and proceed with the inquiry appear from the record of proceedings and the commissioner’s award.

 

[16]  In her ex tempore ruling, the commissioner decided the matter based only on the first ground which the applicant sought postponement pending the determination of the unfair labour practice dispute by the CCMA. This is evident from the following extract of the record:

‘There were therefore no compelling reasons before me to demonstrate that a section 188 process is automatically stayed pending the finalisation of a process before the CCMA. This application is essentially an application for a postponement or a discontinuation of the process, that being said, I considered the effect of prejudice on both parties and I found that in this respect, that since the employee was indeed notified of the particular process and the charges were clear, the notice was timeous, it was reasonable.

When we look at prejudice to both parties, I found that the balance of convenience in fact weighed in favour of the employer, I was therefore not convinced that there were any compelling reasons why the matter should not proceed before me today, it is on that basis that I make the following ruling.

Consequently the application for the discontinuation of the Inquiry by Arbitrator before me is hereby refused, the matter will proceed as scheduled. In so far as the employee has raised that [she] is unprepared in the matter, I have dealt with that in terms of the notice, which I found sufficient to enable the employee and its representative an adequate opportunity to discuss this matter.’ [Emphasis added]

 

[17]  Having dismissed the request for postponement as appears above, the commissioner continued that:

‘The employee’s representative has confirmed that the employee indeed was at [his] offices this morning consulting about a matter, it is unclear then as to why the employee believes that she is unprepared for the meeting, when it is her version that the ULP in any event is rooted on the same facts as the charges levelled against her in the particular matter.

I am however considerate in a sense where these matters must be dealt with in terms of fairness and in the interest of justice and for that reason I will be inclined to allow the employee an opportunity to consult with her representative should an application for legal representative (sic) be granted or not, to consult with her representative for purposes of cross-examining the employer’s witnesses.’

 

[18]  In her written ruling, the commissioner said that she considered that the applicant was suspended on 4 November 2020 and that the notice to attend the inquiry was issued at least 48 hours before the commencement of the inquiry. She found that it is trite that 48 hours’ notice to attend a disciplinary inquiry is acceptable and sufficiently reasonable, that the documents requested were “furnished prior to the set down date”, that the applicant’s representative “was unable to address the sitting on which documentation had not been forthcoming” and concluded that the applicant’s lack of preparedness was self-created.

 

[19]  Further, the commissioner found that the applicant’s unpreparedness was evinced by her failure to attend the hearing on time and in the process “subverted” her role as an arbitrator. She found that the applicant and her legal representative, who are both legally trained, were professionally discourteous and that they sought to undermine her and the process. She found further that she was misled that Tokiso was informed of the point in limine timeously.

 

[20]  With regard to prejudice, the commissioner found that:

‘Since it is a well known principle that a postponement is not a right accorded to parties, rather an indulgence, the writer found it necessary to consider the prejudice to both parties in rendering a determination.

Having assessed the prejudice to both parties, I found that without compelling reasons to discontinue or postpone the process to a later date, the balance of convenience weighed in favour of the Employer and consequently, the refusal of the application.’

 

[21]  The applicant advanced ten grounds why the award should be reviewed and set aside. Mr Moyo, who appeared for the applicant during the hearing, correctly admitted that the review application is against the commissioner’s decision to refuse postponement. Properly conceived, the applicant’s primary complaint is that the commissioner’s decision to refuse the postponement of the matter is reviewable and liable to be set aside on the basis that she committed material errors of fact and law, misconceived the nature of the enquiry, exceeded her powers as a commissioner, misdirected herself, failed to apply her mind and issued an unreasonable award.

 

[22]  Arbitration awards may be reviewed and set aside if they fail the reasonableness test set out in Sidumo and another v Rustenburg Platinum Mines Ltd and others^[2]. The test is whether the decision reached by the commissioner is one that a reasonable decision-maker could not reach.[3] This test is equally applicable to a review of a postponement ruling.

 

[23]  Mr Beckenstrater, appearing for Bidvest, relied on the Labour Appeal Court judgment in Carephone (Pty) Ltd v Marcus NO and others (Carephone)[4]. In Carephone, the LAC held that:

‘There are at least three reasons why the approach to applications for postponements in arbitration proceedings under the auspices of the Commission under the LRA is not necessarily on a par with that in courts of law. The first is that arbitration proceedings must be structured to deal with a dispute fairly and quickly (s 138(1)). Secondly, it must be done with 'the minimum of legal formalities' (s 138(1)). And thirdly, the possibility of making costs orders to counter prejudice in good faith postponement applications is severely restricted (s 138(10)).’[5]

 

[24]  Two months before the judgment in Carephone was handed down, this Court in Keerom Casa Hotel v Heinrichs,^[6] per Landman J, reviewed and set aside a commissioner’s ruling to refuse postponement. The Court held as follows:

‘The commissioner refused the postponement. In so doing he stated that the CCMA would only grant a postponement in exceptional circumstances. I assume that he decided, on this test, that the circumstances of the case before him were unexceptional. I do not think that this is the proper test. In saying so I am acutely conscious of the need for the CCMA to avoid willy nilly postponements which blighted the previous system. However the true test is whether justice and fairness requires a postponement. The commissioner was obliged to ask whether a postponement would prejudice the CCMA or the employee and, if so, whether this could be alleviated in some appropriate manner. In the case of an alleged unfair dismissal it could be accommodated to an extent as the compensation which might be awarded would increase proportionately in the case of a procedural defect. The delay in this case would probably have been minimal.’[7] [Emphasis added]

 

[25]  Regarding the third reason articulated in Carephone above, this Court, per Van Niekerk AJ (as he then was) in Fundi Projects & Distributors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others[8] observed and remarked that Carephone was decided at the time the CCMA had limited powers to make a costs order and before the amendments to the Labour Relations Act introduced in 2002 which “enabled commissioners to give full effect to the principles stated above, and in doing so, to address the policy concerns articulated in Carephone both in respect of the parties to a dispute and the public generally”[9].

 

[26]  The Court’s remarks above were followed by Myburgh AJ in Wade Walker (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (Wade Walker).[10] There, the Court, reviewing and setting aside a commissioner’s ruling refusing to grant an application for postponement, held that:[11]

‘The general principles applicable to applications for postponements are trite law and need not be repeated here, save to say that considerations of prejudice will ordinarily constitute the “dominant component” in the evaluation of an application for a postponement. The commissioner should weigh the prejudice which will be caused to the respondent in such an application if the postponement is granted against the prejudice which will be caused to the applicant if it is not. And in assessing prejudice, the commissioner should consider whether any prejudice caused by the postponement can fairly be compensated by an order of costs or any other ancillary mechanisms.’

 

[27]  Based on the above judgments of this Court, the principle in Carephone should be considered with due consideration to the powers of the commissioners under section 138(10) of the LRA and with the primary focus on the interest of fairness and justice, and prejudice to the parties.

 

[28]  From the commissioner’s ex tempore ruling, she ruled that the hearing must continue immediately after dismissing the first ground of postponement, before considering the second ground of postponement which was that the applicant was not prepared because she was only provided with the requested documents the afternoon before the hearing and that she only received Bidvest’s bundle of documents on the date of the hearing. Immediately after ruling that the matter must proceed, the commissioner then proceeded to consider the applicant’s submission regarding her unpreparedness and found that the applicant was timeously notified of the hearing. Furthermore, she used the fact that the applicant was consulting with her attorney against her and found that she was prepared because the unfair labour practice dispute she was allegedly consulting about arose from the same cause of action. In her written award, she found that the applicant was provided with all the documents and was notified timeously of the hearing and concluded that her lack of preparation was self-created.

 

[29]  The commissioner then proceeded to state that she would provide the applicant an opportunity to consult her legal representative before cross-examining the company’s witnesses. She said that she would allow this in the interest of justice and fairness. She failed to consider the interest of justice and fairness when considering whether to postpone the matter or not but considered these elements to be relevant after she had decided to proceed with the hearing.

 

[30]  The above findings constitute material misdirection, misconception of the enquiry and gross irregularities. They are unsustainable and untenable. The application was based on two grounds. She failed to deal with the ground relating to the common cause facts that the applicant received the documents she requested the afternoon before the hearing, that Bidvest only provided its bundle of documents for the first time at the hearing and that the requested video footage which allegedly depicts the applicant receiving money from a third party was not provided to the applicant. Whether the applicant was consulting with her attorney on the morning of the hearing cannot be a determinative factor that she was therefore prepared for the hearing, when she explained she only received documents less than 24 hours ago and that she only saw Bidvest’s bundle on the day of the hearing.

 

[31]  The commissioner did not conduct an enquiry into prejudice. All she did was to mention the word prejudice. In her ex tempore ruling, she said that the balance of convenience “weighed in favour of the employer” and that there were no compelling reasons to postpone the matter. This finding is also reiterated in her award. She had not engaged in this enquiry at all. Had she done so, she would have come to the inevitable conclusion that the interest of justice and fairness and the manifest and irreparable prejudice wrought on the applicant dictated the granting of the postponement application. Accordingly, the commissioner misconceived the enquiry and committed a gross irregularity which led to her reaching a decision that is unreasonable and irrational.

 

[32]  Another factor relevant to an enquiry into prejudice is the period of suspension and whether the matter was previously postponed and the reasons thereof. It is common cause that the matter was sitting for the first time. The applicant was suspended on 4 November 2020, just over 5 weeks before the sitting. She had to return Bidvest’s equipment including the laptop and therefore had no access to the policies and other documents she may have required in preparation of the hearing. The applicant was notified of the date on Friday that the hearing would proceed the following week on Thursday. The charge sheet was amended, though the amendment was not material. Until 4 December 2020 when she was served with a charge sheet, the applicant was no position to prepare for the inquiry.

 

[33]  The nature of the allegations included gross dishonesty which carried a death sentence. She was not provided a bundle of documents that Bidvest was going to rely on until the start of the hearing. On Tuesday 8 December 2020, the applicant made a request for further particulars. The particulars requested in the letter are in my view relevant and material to the allegations. Bidvest provided some documents on the afternoon of 9 December 2020. It was known that the applicant was legally represented. She was therefore seeking advice from her legal representative. It is the applicant’s right to prepare for the hearing and/or consult her legal representative on the matter and the documents provided. Whether she would be granted legal representation is a different issue.

 

[34]  The quick, cheap and informal approach to the adjudication of labour disputes cannot and should not be attained at the expense of any party’s fundamental right to a fair hearing, which in the context of the labour disputes, finds expression in section 34 of the Constitution[12]. The refusal to postpone the hearing on the face of Bidvest's failure to timeously provide the applicant with the necessary and relevant information for her to conduct her defence infringed the applicant’s right to a fair hearing and a travesty of justice. The award falls to be reviewed and set aside.

 

[35]  The consequence that follows the reviewal and setting aside of the award is that the dismissal is unfair and the contract of employment is reinstated. The remedies set out in section 193 of the LRA are applicable.[13]

 

[36]  The applicant sought that the matter be remitted to Tokiso for a rehearing before another commissioner. Considering that these were section 188A proceedings, this Court cannot remit the matter without first reinstating her. Therefore, the question is whether the matter should be remitted to Tokiso for a de novo hearing. There are no factors that militate against reinstatement.[14] In any event, the matter should not have proceeded beyond the postponement application and therefore the proceedings after the commissioner refused a postponement are not only irrelevant but they are a nullity. Therefore, the matter must be remitted to Tokiso and the applicant be reinstated. Bidvest retains its right to discipline the applicant.

 

[37]  With regard to costs, section 162 of the LRA is applicable. In this Court, success on its own does not justify a costs order against an unsuccessful litigant. The successful litigant must show that the requirements of law and fairness warrant the granting of a costs order. There is no justification to deviate from the principle that costs do not follow the result.

 

[38]  In the premises, the following order is made:

 

Order

1.  The arbitration award issued by the second respondent under case number TCR014090 dated 16 December 2020 is reviewed and set aside.

2.  The dismissal of the applicant is substantively and procedurally unfair.

3.  The matter is referred back to the third respondent for a section 188A inquiry de novo before a commissioner other than the second respondent.

4.  Pending finalisation of the section 188A inquiry, the first respondent is ordered to:

4.1   Reinstate the applicant retrospectively from the date of her dismissal, on the same terms and conditions of employment that existed prior to her dismissal and without any loss of benefits.

4.2   Pay the applicant back-pay from the date of her dismissal to the date she reports for duty within 10 days of this judgment and order.

4.3   The applicant is ordered to report for duty on Monday, 10 June 2024.

5.  There is no order as to costs.

 

M. Makhura

Judge of the Labour Court of South Africa

 

Appearances:

For the Applicant:               Adv. N.A. Moyo

Instructed by:                     Padi Incorporated

For the First Respondent:  Mr. C. Beckenstrater of Moodie & Robertson Attorneys

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