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IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

 

Not Reportable

CASE NO: PR181/22

 

In the matter between:

 

ADVANCE AIR SOLUTION (PTY) LTD	Applicant
And
NCUME, A N.O (As Commissioner)	First Respondent
THE COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION	Second Respondent
LUSIPHI, MAKHETHA BEN	Third Respondent

 

Heard: 30 May 2024

Delivered:    This judgment was handed down electronically by circulation to the Applicant’s and Third Respondent’s Legal Representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing - down is deemed to be 15h45 on 06 August 2024.

 

JUDGMENT

 

LALLIE, J

 

[1]  The third respondent was employed by the applicant which supplies and maintains air conditioning and ventilation solutions and products. In September 2021, the applicant received a complaint from a client that copper had been stolen from its premises while its employees were working. The applicant investigated the complaint. The investigation fingered 3 of the applicant’s employees namely, the third respondent, Mr Gqozo (Gqozo) and Mr Booi (Booi). Booi and Gqozo confessed that they stole the copper and sold it at a scrap metal dealer. They implicated the third respondent and alleged that he facilitated the removal of the copper wire and received a portion of its purchase price. Booi and Gqozo were dismissed for their participation in the misconduct.

 

[2]  The third respondent denied any involvement in the theft of the copper. He was, however, subjected to a disciplinary enquiry in which Gqozo and Booi testified against him. The disciplinary enquiry culminated in the third respondent’s dismissal. The third respondent challenged the fairness of the dismissal at the Commission for Conciliation, Mediation and Arbitration (the CCMA) which appointed the first respondent to arbitrate it. In an arbitration award dated 14 July 2022, the third respondent who will be referred to as the commissioner in this judgment, found the third respondent’s dismissal substantively and procedurally unfair. He ordered the applicant to pay the third respondent compensation in the amount of R73 200,00 which is equivalent to his 6 months’ remuneration. In this application the applicant seeks an order reviewing and setting the arbitration award aside. The application is opposed by the third respondent.

 

[3]  The applicant launched this application a day late and filed an application for condonation of the delay. The condonation application is unopposed. I am satisfied that the applicant has shown good cause to have the lateness condoned. The reason for my view is that the delay is negligible, a reasonable explanation was provided for it and it did not prejudice the respondents and the administration of justice.

 

[4]  The applicant sought to rely on a number of grounds for review. The ground that encapsulated them all is that the commissioner failed to comply with the provisions of the Labour Relations Act[1] (the LRA) pertaining to conducting fair and proper arbitration proceedings. The essence of the third respondent’s opposition is that the applicant failed to present a factual and legal basis for review. He submitted that the decision issued by the commissioner is correct and the award is not reviewable.

 

[5]  The applicant led evidence of Messrs Du Randt and Nagy who received the compliant about the theft of copper form the client and Mr Scheepers who chaired the disciplinary  enquiries of all the 3 employees implicated in the theft. The commissioner noted that the parties before him were in agreement that the evidence led on behalf of the applicant implicating the third respondent was hearsay evidence. He found that the evidence fell outside the realm of section 3 of the Law of Evidence Amendment Act[2] and therefore inadmissible.

 

[6]  The commissioner considered Du Randt’s evidence that Booi had told him over the phone that Gqozo would not be attending the arbitration as the applicant’s witness because of a threat on his life. Du Randt played the recording of the phone call at the arbitration in an attempt to prove the reason for Booi and Gqozo’s inability to testify in the applicant’s favour. The commissioner found that in the absence of affidavits from Booi and Gqozo he had no credible evidence that the threat was either imminent or existed. He noted that as all the other evidence did not implicate the third respondent it would not be in the interest of justice to admit the hearsay evidence. He therefore found the third respondent’s dismissal substantively unfair.

 

[7]  The commissioner accepted that the applicant afforded the third respondent an opportunity to state a case. The third respondent, however, walked out of the disciplinary hearing because he was of the view that the chairperson would be biased as he had chaired the disciplinary enquiry of Booi and Gqozo. The commissioner accepted the third respondent’s version and found his dismissal procedurally unfair.

 

[8]  The applicant’s case is based, mainly, on the commissioner’s failure to conduct the arbitration fairly. Section 138(1) of the LRA requires commissioners to determine disputes fairly and to deal with the substantial merits of disputes. An arbitration award survives the scruting of the review court if it is reasonable. The reasonableness of an award is determined on the totality of the evidence that was presented at arbitration. In Fidelity Cash Management Services v CCMA and Others[3] the reasonableness test for review is expressed in the following words:

“Whether or not an arbitration award or finding of a CCMA commissioner is reasonable must be determined objectively with due regard to all the evidence that was before the commissioner and what the issues were that were before him or her”

 

[9]  The issue of the non-availability of Booi and Gqozo as the applicant’s witnesses was tabled at arbitration. It is common cause that Booi had been subpoenaed to give evidence at the arbitration on 14 April 2022. He disregarded the subpoena and failed to appear at the arbitration. As a result of his absence, commissioner Redcliffe issued a ruling on 21 April 2022 in which he directed Booi to appear at the CCMA and give evidence when the matter was rescheduled. He made a finding that Booi’s failure to appear at the CCMA would result in the institution of contempt proceedings against him as envisaged in section 142(11) of the LRA.

 

[10] It was argued on behalf of the applicant that the commissioner committed a gross irregularity in not invoking the provisions of section 142(9) of the LRA and find Booi in contempt of the CCMA for his failure to appear at the CCMA in terms of commissioner Redlicffe’s ruling. It was argued that when Booi failed to appear at the arbitration on 28 June 2022, the commissioner should have found him in contempt of the CCMA and referred the finding and the record of the proceedings to the Labour Court in terms of section 142(9)(b) of the LRA. The Labour Court would have finalised the issue of Booi’s alleged contempt.

 

[11]  The commissioner provided no reasons for not invoking the provisions of section 142(9) of the LRA. The omission is material because the dispute before the commissioner was the fairness of the third respondent’s dismissal for misconduct. In determining whether the applicant’s conduct of dismissing the third respondent was fair, the commissioner had to be satisfied that the applicant had discharged the onus of proving the fairness of the dismissal. The applicant could discharge the onus of proof by leading admissible evidence through witnesses. When the issue of the unavailability of the applicant’s witnesses was raised the commissioner was obliged to consider the applicant’s attempts of securing the presence of those witnesses at arbitration. He also had to consider the ruling of commissioner Redcliffe and pursued the procedure laid down in section 142 of the LRA with the view of compelling the applicant’s witness to testify at arbitration.

 

[12]  The commissioner’s omission to pursue the procedure of compelling the applicant’s witness to appear at the CCMA which was set in motion by commissioner Redcliffe was irregular. It is trite that not every omission by an arbitrating commissioner constitutes valid grounds for review. In order to rely successfully on an a commissioner’s omission, an applicant for review must prove that the omission resulted in the commissioner reaching an unreasonable decision[4].

 

[13]  The applicant proved that the commissioner’s omission to make a finding in terms of section 142(9)(a) against Booi and to refer the matter to this court in terms of section 142(9)(b) had a distorting effect on his decision. It resulted in the commissioner proceeding with the arbitration knowing that the applicant’s material witnesses would not be present at arbitration to assist the applicant prove its case. It is the absence of the evidence that would have been led by the absent witnesses that led the commissioner to find the third respondent’s dismissal substantively unfair. The commissioner’s omission therefore is in violation of section 138(1) of the LRA and rendered the decision on the substantive fairness of the third respondent’s dismissal unreasonable.

 

[14]  The commissioner accepted the evidence that the third respondent was afforded an opportunity to state a case before the decision to dismiss him was taken. The third respondent elected not to state his version and left the disciplinary hearing because he believed that the chairperson would be biased as he had chaired the disciplinary enquiry of his fellow employees who had been involved in the incident which led to the disciplinary hearing. The commissioner found the third respondent’s dismissal procedurally unfair on the basis that the chairperson’s prior knowledge of the relevant evidence created a reasonable perception of bias.

 

[15]  The third respondent provided no legal basis in support of his contention that the commissioner’s decision on the procedural fairness of his dismissal is reasonable. Item 4 of schedule 8 to the LRA, the Code of Good Practice in respect of dismissal cases deals with fair procedure. It provides that an “employee should be allowed the opportunity to state a case in response to the allegations”. It is common cause that the applicant fulfilled the requirement. In determining the procedural fairness of the third respondent’s dismissal, the commissioner had to determine whether the applicant had afforded the third respondent an opportunity to state a case before his dismissal. Based on the evidence that the opportunity was given, the commissioner should, in the absence of valid evidence to the contrary, have found the dismissal procedurally fair. The third respondent’s belief that the chairperson would be biased on its own did not render his dismissal procedurally unfair. The third respondent cannot escape the consequences of his decision to walk out of the disciplinary enquiry. He was afforded the right to state his case but decided not to exercise it. The decision that the dismissal was procedurally unfair is disconnected form the evidence that was properly tendered at arbitration. It therefore falls outside the band of reasonableness.

 

[16]  The third respondent did not act unreasonably in opposing this application. A costs order against him may, in the circumstances, not be granted.

 

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

1.  The late filing of the review application is condoned.

2.  The arbitration award issued by the first respondent under case number ECPE5848-21 and dated 14 July 2022 is reviewed and set aside.

3.  The matter is remitted to the second respondent to be arbitrated de novo by a commissioner other than the first respondent.

4.  There is no order as to costs.

 

MZN Lallie

Judge of the Labour Court of South Africa

 

Appearances

For the Applicant:	Mr A. J Posthuma of Snyman Attorneys
For the Third Respondent:	Advocate Mashiyi
Instructed by	Michael Cherry Inc

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