CEPPWAWU obo Jinxi and Others v CCMA and Others (PR237/17) [2020] ZALCPE 5 (7 February 2020)

THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH

Not Reportable

case no: PR 237/17

In the matter between:

CEPPWAWU obo JINXI W & 2 OTHERS Applicant

and

CCMA First

Respondent

KOORTS M N. O Second

Respondent

AFRICA TIMBERS Third

Respondent

Heard: 05 February 2020

Delivered: 07 February 2020

Summary: An opposed review application – award falls within the bounds of reasonableness. Held (1): The application is dismissed. Held (2): No order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] This is an application seeking to review and set aside an award issued by the second respondent under the auspices of the first respondent. The application is duly opposed by the third respondent.

Background facts

[2] Three employees, employed as store man/security guard, yard supervisor and forklift driver/yard assistant respectively were dismissed for misconduct related to theft of the employer’s goods. The incident that led to the dismissal of the trio happened on 17 July 2017, at which time a bakkie loaded timber and left. On the employer’s version the bakkie loaded extra timber which was not paid for. The trio’s version as presented by Mr Jingxi, the right amount of timber was loaded and such corresponded with the invoice he inspected.

[3] Following that, the trio were dismissed. Aggrieved by their dismissal, a dispute was referred to the CCMA. The second respondent was appointed to resolve the dispute through arbitration. Having received evidence, the second respondent concluded that the dismissal of the trio was fair. Aggrieved thereby, the present application was launched

Grounds of Review

[4] The applicant’s founding affidavit suggests that the second respondent committed latent irregularities by failing to entertain an application to re-open the arbitration process that had concluded and the award was pending. Further, it was contended that by accepting circumstantial evidence the second respondent was in the wrong. Resultantly, the award issued by the second respondent

is one that a reasonable commissioner may not issue. In supplication of the grounds, it was alleged that by permitting the third

respondent’s witness to read his evidence, the second respondent committed an irregularity. The second respondent was wrong

in finding that the evidence of the witness was corroborated by the video footage in the circumstances where the witness did not deliver an independent testimony. The second respondent’s approach to the evaluation of the evidence was not permissible. The second respondent gave a grossly irregular advice to the trio. The commissioner employed a “reasonable employer test” which is no longer part of our law. The second respondent allegedly failed to apply mind.

Evaluation

[5] There is no merit in any of the applicant’s grounds of review. Much as section 138 of the LRA affords a commissioner powers to conduct an arbitration in the manner he or she deems appropriate, once arbitration is concluded, what should follow within 14 days is an award. There is no provision in the LRA to apply for the re-opening of the process after conclusion. Accordingly, a commissioner is not empowered to re-open a concluded arbitration process. Circumstantial evidence is admissible evidence in arbitration proceedings. When it was led there is no indication of any objection to its leading. At arbitration, witnesses may present evidence in any manner the commissioner deem appropriate. If a witness reads his or her evidence from a prepared statement, unless objected to, there is nothing wrong. Video footage evidence is always admissible as long as it is relevant and authentic[1]. Nothing in the transcript reveals that the relevance and authenticity of the footage was challenged.

[6] In the circumstances where the evidence of a witness is supported by evidence from a video footage, the witness’s evidence is corroborated. The evidence Geddes is independent even if corroborated by the video footage. The transcript does not reveal any irregular advice by the second respondent. Mr Zako on his own version is an experienced trade union official with years of service with the applicant. Being such a person, it is difficult to accept that he received an irregular advice and acted upon it. The applicant placed heavy reliance on the judgment of the LAC in Nkomati Joint Venture v CCMA and others[2]. I take a view that the case is distinguishable. In that case, the employer failed to lead evidence on the basis that the employee had admitted guilt. A dangerous precedent would be set if awards are reviewed on the basis of ex post facto advices, as it is the case in this matter. Zako, brought an application to re-open the case on the advice by his colleagues. Thus, I do not believe that the second respondent misconceived the nature of the enquiry. Gross irregularity entails preventing a party

to have a fair hearing. Both parties – employer and employee – have a right to a fair hearing. To my mind, the findings in Nkomati were unique to its facts and is not of general application with regard to the principle of helping hand.

[7] Overall, the findings of the second respondent when compared with the evidence presented are those that a commissioner may reasonably arrive at. There is no disconnection between the evidence adduced and the conclusions arrived at by the second respondent. To a large degree, the findings of the second respondent are predicated on the video footage. Mr Zako is on record to say:

MR ZAKO Okay. That is fine. Okay. Look, I don’t have further questions because the crux of the matter is not, there is no dispute of the footage.

COMMISSIONER You say it was tampered with. It was the same.

MR ZAKO it was tampered before it leaves the yard.

[8] Regard being had to the answer of Zako, it does not appear that he was suggesting that the video footage was tampered with. At the beginning when the video footage was played, there is no indication that any mention was made that the video has been tampered with. Throughout the playing of the footage, Mr Zako actively confirmed some of the visuals shown on the footage. He indicated that he watched the footage before. However, counsel appearing for the applicants clarified the statements of Zako by stating that what was tampered with was not the video footage. Effectively, even if the employees were to deny any guilt, the visuals on the video footage could not be denied. Thus an advice –helping hand – for the other two employees to give evidence, they could not contradict the visuals of the admitted video footage. When it comes to sanction, much as a commissioner should not defer to the sanction of the employer, a commissioner is not at large to interfere with a fair sanction imposed by an employer. Proper

reading of the second respondent’s award reveals that he did not employ the rejected reasonable employer test. At paragraph 32 of the award, he made it absolutely clear that his is to assess whether the employer’s decision to dismiss was fair by considering all relevant circumstances in arriving at the decision to dismiss. He concluded that the evidence established that the employees were guilty of a serious misconduct, which involved an element of dishonesty.

[9] In Court, the applicant’s counsel pursued with vigour only two grounds; namely, the failure to accord a helping hand, which in his submission amounts to procedural unfairness. On this point, the applicant’s case remains unclear. I say so because on the one hand, it is alleged that an advice, not borne out by the transcript, was dispensed by the arbitrator, which led to the two employees not testifying. If the Court, for a moment, accepts that such an advice was dispensed with and accepted, then in the course of the arbitration proceedings, the arbitrator had no duty to extend a helping hand, since his advice was accepted. On the other hand, it is suggested, which suggestion, if it were to carry the intended weight, must discount the alleged advice,

that since versions were put, the arbitrator was duty bound to extend a helping hand by advising the employees to give evidence in support of those versions as compelled by the CCMA Guidelines. On this point, the difficulty is that regard being had to the advice dispensed with, as contended by the applicant itself, which advice was accepted, the arbitrator was well within his rights not to “contradict” the advice he gave.

[10] The second ground pursued with equal vigour was the failure, as it were, to entertain the application to re-open the concluded arbitration process. Earlier in this judgment I have already exposed the difficulty with the application to re-open the concluded arbitration. A further difficulty is that at the time of seeking a re-opening in order to cure the alleged procedural unfairness, an award was already rendered. This fact suggests that even if the arbitrator had an appetite to entertain the application so as to cure the procedural fairness – basis of the first ground, at that time, he was functus officio. I agree with Mr Orton, appearing for the third respondent that on application of the principle of functus officio, the arbitrator was barred to satisfy that urge. In retort, Mr Bosch, the applicant’s counsel, submitted that the functus officio situation would have been created by the arbitrator, because he issued an award in the face of a pending application. There is no merit in this submission.

[11] For all the above reasons, the application must fail.

[12] In the results I make the following order:

Order

1. The application is dismissed.

2. There is no order as to costs.

_______________________

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances

For the Applicant: Advocate C S Bosch

Instructed by: Cheadle

Thompson & Haysom, Cape Town.

For the third Respondent: Mr R J C Orton of Snyman Attorneys, Rosebank.

[1] See S v Mpumlo 1986 (3) SA 485 (E) and Mdlongwa v The State (99/10) [2010] ZASCA 82 (31 May 2010)

[2] [2019] 40 ILJ 819 (LAC)