COMEEWU obo Dawule and Others v Metal and Engineering Industries Bargaining Council and Others (JR738/22) [2024] ZALCJHB 302 (7 August 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 738/22

In the matter between:

COMEEWU obo THABO DAWULE AND TWO OTHERS Applicant and METAL AND ENGINEERING INDUSTRIES BARGAINING COUNCIL First Respondent COMMISSIONER TANYA ROBERTS-KRUGER N.O Second Respondent MARTHINUSSEN AND COUTTS Third Respondent

Heard: 28 June 2024

Delivered: 07 August 2024

JUDGMENT

MADDERN, AJ

Introduction

[1] This is a review application in terms of section 145 of the Labour Relations Act[1] (LRA) for an order reviewing and setting aside the arbitration award dated 15 December 2021 (award) issued by the Second Respondent, the Commissioner, in terms of which, the Second Respondent dismissed Mr Sunnyboy Cetiyane from the matter due to his absence and in terms of which the dismissals of Mr Thabo Dawule and Mr Simon Sibotsa were found to be procedurally and substantively fair and, as a consequence, their referrals to the First Respondent dismissed.

[2] The Third Respondent opposes the application for review as filed by the three Applicants.

[3] The Applicants have applied for the condonation of the late filing of the review application. There was a one-week delay in the filing of the application for review and the Third Respondent has, sensibly, not opposed the application and condonation is granted.

[4] It is apparent that the grounds on which a review of the Second Respondent’s award is sought in the case of Mr Cetiyane are entirely different from these grounds in respect of which a review is sought of an award in relation to Messrs Dawule and Sibotsa. Mr Cetiyane was dismissed from the matter prior to the introduction of evidence by the Third Respondent and the Applicants. As a consequence, it is appropriate to deal with the two distinctly different grounds of review, separately, first, those grounds of review in relation to Mr Cetiyane and then those in relation to Messrs Dawule and Sibotsa.

Background facts in relation to Mr Cetiyane

[5] Mr Cetiyane was employed as a fitter by the Third Respondent, and he was dismissed on 17 May 2021 after a finding was reached at a disciplinary hearing in terms of which Mr Cetiyane was found “[to] have been involved in the unauthorised removal and/or possession of scrap/production copper prior to 21 April 2021”.

[6] Mr Cetiyane is one of the three Applicants dismissed who referred a dispute in terms of which it was contended that they had been unfairly dismissed by the Third Respondent.

[7] The arbitration then proceeded on 20 September, 12 November and 13 December 2021.

[8] Mr Cetiyane was represented by Mr Joseph Morallana, a union official of the Construction, Mining, Energy, and Energy Union (COMEEWU).

[9] On the second day of the arbitration, the Second Respondent issued a ruling in which the Second Respondent confirmed:

‘Due to the absence of Mr Cetiyane without any valid reason, he is dismissed from the matter. The matter will therefore proceed with Mr Thabo Dawule and Mr Simon Sibotsa as the Applicants.’

[10] From the award, it is apparent that the Second Respondent dealt with the absence of Mr Cetiyane as a preliminary issue. The Second Respondent records in the award:

‘Mr Cetiyane did not attend any of the 3 (three) days as per the notices of set down. On the second day it was mentioned that he was involved in an accident, however no proof was submitted to confirm the same.’

[11] The Second Respondent’s award does not make any other reference to Mr Cetiyane after the dismissal of Mr Cetiyane from the proceedings. It is evident that the arbitration then proceeded in relation to Messrs Dawule and Sibotsa only.

Grounds of review in relation to Mr Cetiyane

[12] Whilst various grounds of review are expressed in relation to the three Applicants without distinguishing between them, in relation to Mr Cetiyane it is contended, inter alia, that as Mr Cetiyane was at all times represented during the course of the arbitration proceedings, the Second Respondent was not possessed of the power to “dismiss a represented Applicant from his case”.

[13] The award makes no mention of the legal basis on which the Second Respondent proceeded to dismiss Mr Cetiyane from the proceedings and a perusal of the record reflects that the absence of Mr Cetiyane from the proceedings was dealt with in a cursory fashion, as follows:

‘Mr Gabanakgosi: Yes, Madam Commissioner. The first point I would like to establish at this moment in time, there are three Applicants, but only two Applicants are present in this matter today. Now, one would prefer to have a clearer picture as to whether the First Applicant is withdrawing from the case and is not what is status of third party can go forward?

Commissioner: Thank you …

Mr Phiri: Thanks Commissioner, it’s Sunnyboy.

Commissioner: Yes, Mr Phiri. Sunnyboy, we were told that he got [into] a car accident.

Commissioner: Ja.

Mr Phiri: I don’t know whether it’s the day before yesterday, but it’s before yesterday. So, the actual day, we are not sure and when they tried to call him, his phone is off, so, meaning that when we said that we can’t submit any official document and say this is the case, but we have heard that Sunnyboy is hospitalized.

Commissioner: Okay, so you don’t have any proof?

Mr Phiri: I don’t have any proof, as yet.

Commissioner: And you couldn’t get hold of him to confirm?

Mr Phiri: Yes

Commissioner: Okay, so in his absence we would have to dismiss the case on his behalf, and he would then have to bring a rescission application.

Mr Phiri: I am not sure, Miss Commissioner. We will do what is required in terms of your role.

Commissioner: Sure.

Mr Phiri: What we are saying is he got a car accident, and he was hospitalized.

Commissioner: Hundred percent, but in absence of proof, I would have to take a decision to dismiss the matter on his behalf.

Mr Phiri: If that is done, then we will reinstate him and once he is out then we will have documents.

Mr Phiri: As long as they sign a statement it will be fine.

Commissioner: Hundred percent. Anything else from the employer’s side…’

[14] The essential question is thus what the Second Respondent’s powers were given the absence of Mr Cetiyane in circumstances where, although he was not in attendance, he remained represented by the union official, Mr Morallana.

[15] Rule 30 of the Rules for the Commission, Conciliation, Mediation and Arbitration[2], which rules have been adopted by the Second Respondent[3] provides as follows:

‘30. What happens if a party fails to attend arbitration proceedings before the commission:

(1) if a party to the dispute fails to attend or be represented at any arbitration proceedings before the commission, and that party –

(a) had referred the dispute to the commission, a commissioner may dismiss the matter by issuing a written ruling; or

(b) …’

[16] The crux of the issue for determination is whether the Second Respondent was empowered to dismiss Mr Cetiyane from the arbitration proceedings in circumstances where he was not present but was nevertheless represented.

[17] It is trite that in such circumstances the appropriate review test is one of correctness.[4]

[18] There is no doubt that the Second Respondent committed an error of law in dismissing Mr Cetiyane from the arbitration in circumstances where he was represented. It is quite clear that the Second Respondent made the decision solely on the basis of the absence of Mr Cetiyane himself and gave no thought to the fact that he was, in truth and in fact, represented. There existed no legal basis on which the Second Respondent was empowered to dismiss Mr Cetiyane in the circumstances before the Second Respondent as the arbitrator.

[19] In Local Transportation Board and Another v Durban City Council and Another[5] (Local Transportation), the then appellant division referred with approval to the headnote in Goldfields Investment Ltd. and Another v City Council of Johannesburg and Another[6] which stated that:

‘A mistake of law per se is not an irregularity but its consequences amount to a gross irregularity where a judicial officer, although perfectly well-intentioned and bona fide does not direct his mind to the issue before him and so prevents the aggrieved from having his case fully and fairly determined.’

[20] In casu, Mr Cetiyane has been deprived of an opportunity to have his dispute as to the fairness of his dismissal fully and fairly determined. Indeed, Mr Cetiyane’s dispute as to the fairness of his dismissal was not heard at all. The evidence as traversed by the Second Respondent was in relation to the evidence tendered by the parties in relation to Messrs Dawule and Sibotsa only.

[21] Consequently, insofar as Mr Cetiyane is concerned, the Second Respondent’s award falls to be reviewed and set aside.

Background facts in relation to Messrs Dawule and Sibotsa

[22] Mr Dawule was employed by the Third Respondent in 2017 and was employed as a stripper. Mr Sibotsa was employed on the 4 February 2015 and was employed as a driver. For the sake of convenience, Messrs Dawule and Sibotsa are hereinafter referred to as “the employees” when reference is made to them collectively.

[23] The employees were required to answer charges that “you have been involved in the unauthorized removal and/or possession of scrap/production copper prior to 21 April 2021”.

[24] On 12 May 2021, the employees received notices to attend a disciplinary hearing, which hearings then took place on 17 May 2021. The notices to attend the disciplinary hearing were issued and a third party witness, Mr Dennis Sephaphati signed as a witness. Mr Sephaphati was a NUMSA shop steward at the time and NUMSA was the only recognised union.

[25] The Third Respondent makes use of a document known as a “representative submission form”, which document sets out the selection of the person to represent the employees and deals with the issue of an interpreter. The employees selected Mr Sephaphati to represent them and did not indicate on the submission form that any witnesses or interpreters would be required.

[26] The employees, after confirming that they understood the charges at the disciplinary hearing pleaded not guilty, after which the evidence of Mr Hendrik Neveling, the General Manager was introduced.

[27] The Third Respondent’s disciplinary enquiry document records the evidence of Mr Neveling as follows:

‘Mr Hendrik Neveling …, General Manager with 16 (sixteen) months of service. On 21/04/21 copper was found in the sandblasting section. Mr Manoto confessed and implicated other employees. The Company wondered how copper this size could leave the premises. Security personnel and 3 (three) others were polygraphed, questioned specific to the copper removal. Mr Sibotsa’s responses indicated deception and of all the drivers Mr Sibotsa is the one who indicated deception.’

[28] The disciplinary enquiry document in relation to Mr Dawule recorded Mr Neveling’s evidence as follows:

‘Mr Hendrik Neveling, General Manager with 16 (sixteen) months of service. On 21/04/2021 the copper was found in Mr Manoto’s section. On investigation Mr Manoto was booked for a polygraph test and on the day of the polygraph test Mr Manoto confessed his involvement and he implicated Mr Mhlanga and Mr Dawule as the kingpins. Mr Dawule was booked for a polygraph test and his results indicated deception in response to the polygraph test which gives the Company reason to believe that he is involved in orchestrating the removal of the copper.’

[29] At the disciplinary hearing, it was apparent that Mr Neveling also presented the outcome of the polygraph tests in relation to both employees.

[30] The employees were dismissed with immediate effect and referred a dispute to the First Respondent.

[31] The Third Respondent introduced the evidence of Mr James Gabanakgosi, an official employed by SEEFSA and the chairperson in the disciplinary hearing; Mr Hendrik Neveling; and Ms Silke Kaiser, the polygraphist who had conducted a forensic voice stress test in relation to the employees.

[32] It was the Third Respondent’s version that, in relation to procedural fairness, the employees had received due notice of the hearing and the charges against them and were afforded the opportunity of representation and the services of an interpreter and the employees had selected Mr Sephaphati, a union official, to represent them, and further that the employees had not indicated that an interpreter was required.

[33] In relation to substantive fairness, in summary, the version of the Third Respondent was that the employees were guilty of the misconduct complained of. In the case of Mr Dawule, he had been specifically implicated by Mr Isaac Manoto and in the case of Mr Sibotsa, he was the only person amongst the two security officers and the two drivers employed by the Third Respondent whose polygraph test had showed deception.

[34] In relation to the background facts which had prompted the polygraph test of the Third Respondent’s employees, the Third Respondent’s evidence was that copper was found hidden behind the rubber mats in the sandblasting department. The copper comprised of flex connectors and a copper busbar which had gone missing and had a value of roughly R10,000.00. An investigation led to a determination of the involvement of Isaac Manoto, who it was alleged was involved and eventually confessed.

[35] Ms Kaiser confirmed that she had conducted the initial polygraph test in relation to Mr Isaac Manoto and he then confessed and confirmed the involvement of others, specifically the employees.

[36] Both employees were subjected to polygraph testing by Ms Kaiser and deception was indicated. The three questions of the polygraph test were posed as follows: i) “have you ever been involved in the theft of copper from this place so that you can get money?”; ii) “have you ever received money because copper was stolen from this place?”; iii) “do you know for sure who has been stealing copper from this place for money?”. Both employees indicated “no” to each.

[37] In relation to procedural fairness, it was contended that they had not selected Mr Sephaphati as a representative. The notice of disciplinary hearing was also not properly explained and that, as a consequence, the employees did not know what charge they were required to meet.

[38] In relation to substantive fairness, the employees contended that they knew nothing about the copper found in the sandblasting

department.

Grounds of review in relation to Messrs Dawule and Sibotsa

[39] For the employees, it is contended that the Second Respondent’s award is reviewable on the basis of a gross irregularity or misconduct having been committed by the Second Respondent.

[40] It is apparent that in relation to the employees, it is the Second Respondent’s treatment of the evidence of Mr Manoto, whose evidence the Applicants argue was hearsay, which lies at the heart of the review. This is so as the employees contend that should the hearsay evidence of Mr Manoto be excluded (as they contend it should have been), then there was insufficient evidence before the Second Respondent upon which a finding could be made that the employees were guilty of the misconduct complained of.

[41] Whilst the employees rely on other grounds of review, it is sensible to deal with the crux of the employees' submissions first as this may be dispositive of the entire application, rendering it unnecessary to deal with the other grounds of review.

[42] From the Second Respondent’s award, it is evident that the Second Respondent noted the following in relation to Mr Manoto:

42.1 In the case of the Third Respondent’s first witness, Mr James Gabanakgosi: “… the name of a fellow employee, Mr Manoto came up on a few occasions, but that was all, he was not called as a witness”.

42.2 In relation to the Third Respondent’s second witness, Hendrik Neveling: “Isaac Manoto was involved and eventually confessed…. Manoto stated that he was assisted by the Applicant, Mr Dawule, and another employee named Albert. The interview with Manoto implicated other employees, all leads had to be investigated...”

42.3 In relation to the Third Respondent’s third witness, Silke Kaiser: “She tested Isaac Manoto and he indicated that everybody in the workshop was involved”.

And:

‘She stated that as a person was talking she typed her notes as she spoke, she could not know that there was an Albert and Thabo who worked for the Respondent, it was impossible for her to have any prior knowledge of what Mr Manoto told her during the discussion. She did not believe that Mr Manoto did not know how the parcels were taken out of the premises, this was during the pre-test phase.’

42.4 In relation to the evidence by Mr Dawule: “…He stated that he only knew about the copper when Mr Neveling found it in the blasting area and because Mr Manoto alleged that he, the witness, was involved, he wanted Mr Manoto to testify during the hearing”. Further: “He agreed that copper was stripped in the sandblasting department and this his role was to strip motors. He conceded that Mr Manoto, which worked in the sandblasting department, had the assistance from someone in the stripping department.”

42.5 In relation to the Second Respondent’s analysis of evidence and arguments: “… Mr Dawule was further implicated by Mr Manoto in that he claimed that Mr Dawule and one other were the master minds behind the copper theft syndicate”. Further, it was the Applicant’s case that because Mr Manoto was not called as a witness, his confession was to be treated as hearsay evidence. The copper found in the sandblasting room could not be directly linked to either of the Applicants.

[43] From the aforegoing extracts, the Second Respondent’s acknowledged the Applicants submission that the confession by Manoto and consequently the implication of Dawule, in particular, constituted hearsay evidence. The Second Respondent after recording that “it was the [Applicants’] case that because Mr Manoto was not called as a witness his confession was to be treated as hearsay evidence”, makes no attempt in the award to deal with the issue. There is no indication from the award that a finding was made by the Second Respondent one way or the other in relation to the nature of the evidence of Manoto.

[44] In Exxaro Coal (Pty) Ltd vs Chipana and Others[7] (Exxaro), Coppin JA confirmed:

‘[20] Hearsay evidence is a common form of evidence encountered in disciplinary proceedings. In many cases, it might be the only evidence available to supplement other direct evidence in making out a case of misconduct or to sustain a defence to a charge of misconduct. It is therefore not unreasonable to expect Commissioners to be familiar with it and to be in a position to identify it readily. That the provisions of the section are not a novelty or mystery to Commissioners or Arbitrators, is evident from reported decisions.

…

[24] … Because of the similarities between civil proceedings and arbitration proceedings, the overwhelmingly, adversarial nature of arbitration proceedings under the LRA, and the overarching requirement that such proceedings be fair, those safeguards and precautions, duly adapted, apply equally to arbitration proceedings to ensure fairness and serve as an invaluable guide for Commissioners and arbitrators when confronted with hearsay evidence, and, particularly, when applying section 3 of the LEAA. Adapted they would include the following: (1) Section 3(1)(c) of the LEAA is not a licence for the wholesale admission of hearsay evidence in the proceedings; (2) in applying the section the Commissioner must be careful to ensure that fairness is not compromised; (3) a Commissioner is to be alert to the introduction of hearsay evidence and ought not to remain passive in that regard; (4) a party must as early as possible in the proceedings make known its intention to rely on hearsay evidence so that the

other party is able to reasonably appreciate the evidentiary ambit, or challenge, that he/she or it is facing. To ensure compliance, a Commissioner should at the outset require parties to indicate such an intention; (5) the Commissioner must explain to the parties the significance of the provisions of section 3 of the LEAA, or of the alternative, fair standard and procedure adopted by the Commissioner to consider the admission of the evidence; (6) the Commissioner must timeously rule on the admission of the hearsay evidence and the ruling on admissibility should not be made for the first time at the end of the arbitration, or in the closing argument, or in the award. The point at which a ruling on the admissibility of evidence is made is crucial to ensure fairness in a criminal trial. The same ought to be true for an arbitration conducted in an adversarial fashion because fairness to both parties is paramount.’

[45] From the Second Respondent’s treatment of the evidence of Manoto, it is quite evident that the Second Respondent failed to comply with the invaluable guide set out by the Labour Appeal Court in Exxaro.

[46] Fundamentally, the Second Respondent was required to make a ruling on the admissibility of the evidence tendered in relation to Mr Manoto. That was never done, either during the course of the arbitration proceedings when it should have or in the award.

[47] It follows then that the issue of Mr Manoto’s evidence as hearsay was not dealt with at all as it should have been in accordance with the Law of Evidence Amendment Act[8], on the totality of the evidence, before the Second Respondent.

[48] On the facts before the Second Respondent, it was evident that the Third Respondent sought to rely on the outcome of polygraph tests conducted in relation to the employees. In this regard, it is trite that polygraph test results on their own are merely an indication of deception and do not, without more, justify the fair dismissal of an employee.[9]

[49] It is apparent from the Second Respondent’s award that the Second Respondent was mindful of the absence of any direct evidence:

‘it is noted that both parties have indicated that there was no direct evidence pointing to the Applicants other than them showing deception during the test.’

[50] Whilst the Second Respondent then goes on to make reference to the test for evaluating circumstantial evidence, and in this regard makes reference to National Union of Mineworkers v Mogale Gold, a division of Mintails (SA) (Pty) Ltd[10], the Second Respondent does not set out precisely what circumstantial evidence the Second Respondent took into account in reaching the conclusion that:

‘when considering the evidence presented by both parties relating to the substance of the dismissals, I find that the Respondent successfully discharged the onus to prove the fairness of the dismissal. I find on a balance of probabilities that the dismissal of the Applicants were substantively fair.’

[51] It is therefore, not evident from the Second Respondent’s award, whether the Second Respondent relied on the evidence in relation to the confession by Mr Manoto and, consequently, what was alleged to have been said to Ms Kaiser, which had implicated the employees.

[52] It is apparent that the Second Respondent failed to approach the issue of the hearsay evidence in the requisite manner, this, in the context where this evidence was presented by the Third Respondent to corroborate the polygraph test results.

[53] The abstract referred to above herein before in Local Transportation decision is equally apposite here.[11]

[54] In Matsekoleng v Shoprite Checkers (Pty) Ltd[12], the Labour Appeal Court found:

‘In my view, therefore, the failure by the Commissioner to apply his mind properly of the issue of admissibility of Mr Roberts’ affidavit constituted a material error of law and a gross irregularity on the part of the Commissioner which prejudiced the appellant in her right to a fair hearing.’

[55] By virtue of the aforegoing, the Second Respondent’s award falls to be reviewed and set aside on this review ground alone. There is no need to consider the further grounds of review nor the issue of the Second Respondent’s finding in relation to procedural fairness.

[56] In view of the finding that the Second Respondent’s award in relation to Mr Cetiyane is reviewable, coupled with the finding that the Second Respondent’s award is also reviewable in the case of Messrs Dawule and Sibotse, it is appropriate that the Second Respondent’s award be set aside and for the entire dispute to be remitted back to the First Respondent.

[57] In relation to costs, after carefully considering the requirements of law and fairness, no order is to be made as to costs.

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

Order

1. The arbitration award issued by the Second Respondent under case number: METS6105, dated 15 December 2021 is reviewed and set aside.

2. The dispute regarding procedural and substantive fairness of the Applicants, Mr Sunnyboy Cetiyane, Mr Thabo Dawule and Mr Simon Sibotsa is remitted back to the First Respondent for determination by a commissioner other than the Second Respondent.

3. There is no order as to costs.

R.T. Maddern

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv. Monyane Instructed by: Finger Attorneys For the Third Respondent: Ms H Schenesma Instructed by: Norman Hornby Incorporated

[1] Act 66 of 1995, as amended.

[2] Rules for the conduct of proceedings before the CCMA, Notice 776 of 2018 as published in GG42092 on 7 December 2018. See also Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration, Notice 194 of 2020 as published in GG 43038 on 21 February 2020.

[3] Clause 10 of the Metal and Engineering Industries Bargaining Council Dispute Resolution Agreement signed 30 May 2022.

[4] Fidelity Cash Management Service v CCMA & Others [2007] ZALAC 12; [2008] 3 BLLR 197 (LAC) para 101.

[5] [1965] 1 AII SA 569; 1965 (1) SA 586 (A) at 598A cited with approval in Matsekoleng v Shoprite Checkers (Pty) Ltd [2012] ZALAC 41; [2013] 2 BLLR 130 (LAC).

[6] 1938 TPD 551.

[7] [2019] ZALAC 52; [2019] 10 BLLR 991 (LAC) at paras 20 and 24.

[8] Act 45 of 1988.

[9] See: Food & Allied Workers Union on behalf of Kapesi & others v Premier Foods Ltd t/a Blue Ribbon Salt River [2010] ZALC 61; (2010) 31 ILJ 1654 (LC). See also DHL Supply Chain (Pty) Ltd v De Beer NO & others [2014] ZALAC 15; (2014) 35 ILJ 2379 (LAC).

[10] [2015] ZALAC 32; [2015] 1 BLLR 1016 (LAC).

[11] Land Transportation supra at 598A.

[12] [2013] 2 BLLR 130 (LAC) at para 43.