Ekurhuleni Metropolitan Municipality v SALGBC and Others (JR1811/14) [2016] ZALCJHB 513; [2017] 4 BLLR 399 (LC); (2017) 38 ILJ 1820 (LC) (15 December 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no JR 1811/14

In the matter between:

EKURHULENI METROPOLITAN MUNICIPALITY Applicant

and

SALGBC

First Respondent

MNS DAWSON N.O Second

Respondent

SAMWU OBO MOSES NYAMBENI

Third Respondent

Heard: 25 August 2016

Delivered: 15 December 2016

VAN NIEKERK J

[1] This is an application in which the applicant seeks to review and set aside an arbitration award issued by the second respondent, to whom I shall refer as ‘the arbitrator’. In his award, the arbitrator held that the third respondent (the employee) had been unfairly dismissed and ordered his reinstatement.

[2] The proceedings under review commenced on 13 May 2014. On that date, the arbitrator recused himself. He did so, it would seem, on the basis that he had presided at the conciliation meeting and a concern that he had knowledge of the facts of the case that may have compromised him as an arbitrator. The parties were advised that the matter would proceed before another commissioner. This notwithstanding, the arbitrator later decided to rescind that decision and reinstate himself as arbitrator. The record discloses

that the arbitrator had taken the matter up ‘with my bosses” and that the matter had again been set down for hearing before him. The matter proceeded on 27 June 2014 when the applicant in the present proceedings moved an application for recusal. The application was based on the submission that the arbitrator, by virtue of his prior engagement in the case, had prejudged the matter, a submission that was sustained by the arbitrator’s prior decision that he should recuse himself. The application was refused. The arbitrator indicated that he would give a ‘full ruling when the time arises’. No full ruling is apparent from the record, nor is there any full reasoning for the ruling contained in the award.

[3] In his award, the arbitrator acknowledges that he had advised the applicant that he intended to have another commissioner hear the matter and the proceedings were then adjourned. He simply states that ‘On closer examination of my decision I decided to rescind my decision to recuse myself’.

[4] The rescission of arbitration awards and rulings is regulated by s 144 of the LRA. That section prescribes the circumstances in which rulings may be rescinded, none of which were applicable in the present instance. It is not open to a commissioner, when none of the circumstances referred to in s144 (a) to (d), simply to rescind a ruling, particularly when the rescission appears to be a consequence of a discussion with those charged with the administration of arbitration hearings and where, as in the present instance, no cogent reason for the decision is apparent. It is not correct, as the third respondent submits, that the arbitrator had simply made an off the record statement as opposed to any formal ruling in relation to the issue of recusal. The terms of the award itself indicate that the arbitrator made what he refers to as a ‘decision’. Had he made an off the record remarkable statement, he would have said so and he would have not made a ruling in respect of the rescission. In my view, the arbitrator committed a gross irregularity by his decision mero motu to rescind his decision to recuse himself.

[5] Further, the applicant contends that the arbitrator committed a gross irregularity by in effect overturning a prior decision by a fellow arbitrator to grant condonation for the disciplinary hearing to be held later than three months from the date on which the employer became aware of the alleged misconduct. The applicant avers that in the disciplinary hearing, the presiding officer afforded the applicant an opportunity to seek condonation in terms of s 6.3 of the SALGA disciplinary code and procedure, and that condonation was thereafter granted by another member of the bargaining council’s panel of arbitrators.

[6] In his award, the arbitrator found that the applicant had failed to comply with paragraph 6.3, which requires an employer to proceed with a hearing not later than three months from the date on which the employer became aware of the alleged misconduct. The arbitrator records, on page 11 of the award, and in relation to the point taken at the disciplinary hearing that the applicant had failed to comply with paragraph 6.3, the following:

It is not clear from the evidence whether the presiding officer ruled on the point in limine, which he should have, but instead he gave the respondent an opportunity to apply for condonation. The presiding officer at that

disciplinary enquiry did not have the jurisdiction to perform that step as they was not prescript that empowered him to give the

respondent an opportunity to remove the matter from before him without ruling on the issue raised by the applicant’s representative and before him at that time (sic)…

Having founded paragraph 6.3 is peremptory and that non-compliance the worse is fatal the matter should have ended at that stage and the condonation application and the finding therein is of no legal consequence and I am not going to address it.

[7] The award in which condonation was granted for the failure to convene a disciplinary hearing within the time limit contemplated by paragraph 6.3 was never reviewed and set aside. It was thus binding on the arbitrator, who had no basis on which to disregard it, let alone overturn it. In my view, for this reason alone, the arbitrator’s award stands to be reviewed and set aside.

[8] Finally, in relation to the manner in which the arbitration proceedings were conducted, the applicant submits that the arbitrator

failed to conduct the proceedings in a fair manner and that he intervened in the proceedings to such an extent so as to deny the

parties a fair hearing.

[9] The Labour Relations Act (LRA) sought to introduce a dispute resolution system that would resolve labour disputes expeditiously,

informally and inexpensively. Section 138 (1) of the Act promotes this purpose and in relation to the conduct of arbitration

hearings under the auspices of the first respondent (the CCMA) provides the following:

The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute

fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.

[10] The injunction to conduct the proceedings with the minimum of legal formality may justify a decision by a commissioner to conduct

proceedings with less regard for the formality that ordinarily characterises a trial in this court or any other civil court, but it is not an invitation or a license to disregard the parties’ right to a fair hearing. The broad principle that emerges from the case law is that commissioners (and judges) ought to exercise caution when they intervene in the proceedings over which they preside.

[11] In National Union of Security Officers and Guards v Minister of Health and Social Services (Western Cape) [2005] 4 BLLR 373 (LC) this court said the following regarding a commissioner’s conduct during the questioning of witnesses:

I do not wish to refer to each and every sentence uttered by the arbitrator or each and every question she had asked the applicant.

Suffice to say that, in my view, she exceeded the bounds of the enquiry and created an impression that she was biased in favour of the first respondent. This is supported by the fact that I found that the manner in which she dealt with certain witnesses to be deferential to them as a result of their political positions or for any other reason she may have had. Her generosity in respect of those witnesses did not extend to the applicant and, in my view, he was entitled to hold the view that she was biased

And further:

Courts have warned on several occasions the trial judges or arbitrators often, and unfortunately quite unwarrantedly, intervene in proceedings while, for instance the defendant’s counsel is cross-examining certain witnesses and during the hearing of argument. ..For this reason alone the award falls to be set aside.

[12] In Vodacom Service Provider Co (Pty) Ltd v Phala No & others (2007) 28 ILJ 1335 (LC), this court reviewed and set aside an arbitration award in circumstances where the court held that amongst

other things, that the commissioner concerned had questioned a party’s witnesses in a way that amounted to cross-examination

and thus overstepped the boundaries of fair procedure in the conduct of arbitration proceedings. The court went on to note that a commission has a discretion about how an arbitration should be conducted and that the commissioner may decide to adopt an adversarial or an inquisitorial approach but that irrespective of the approach adopted, the commissioner is required to conduct arbitration

proceedings in a fair, consistent and even-handed manner. At paragraph 15 of the judgment, the court said the following:

A commissioner cannot assist or be seen to assist, one party to the detriment of the other. A commissioner cannot put to witnesses his propositions, should not interrupt the witnesses answers, challenge the consistency of a witness with his own evidence, indicated that he doubted the witnesses credibility, or make submissions regarding the construction of evidence.

[13] The CCMA’s practice and procedure manual advises arbitrators generally to opt for an inquisitorial approach or an adversarial

approach in arbitration proceedings. The manual goes on to advise commissioners (at paragraph 12.3.5) that irrespective of the approach adopted, an arbitrator must conduct the arbitration impartially and not engage in conduct that might reasonably give rise to a party forming a perception of bias.

[14] The CCMA guidelines and misconduct arbitration (at paragraph 33) suggests that when the parties are primarily responsible for calling witnesses and presenting their evidence and cross-examining the witness of other parties an adversarial approach is to be recommended. An inquisitorial approach, on the other hand, he suggested if one or both parties is unrepresented, or where a

representative is not experienced. The guidelines warn that arbitrators adopting an inquisitorial approach must be careful to ensure that the parties are aware of and have the opportunity to exercise their rights under s 138 (2).

[15] The guidelines go on to suggest that when an arbitrator questions witnesses, whether in an inquisitorial or adversarial process, the arbitrator should explain to the parties the reason for seeking the information sought and must allow the parties to address questions to witnesses on any issues raised by the additional evidence. In short, when an arbitrator adopts an inquisitorial role in arbitration proceedings, the commissioner may not abandon the well-established rules of natural justice. On the contrary, it calls for greater vigilance on the part of the commissioner particularly since the interventionist role that he or she adopts might easily lead to a perception or apprehension of bias, especially on the part of a lay litigant (Mutual & Federal Ins Co v Commission for Conciliation, Mediation & Arbitration & others [1997] 12 BLLR 1610 (LC)).

[16] The guidelines are consistent with judgments of this court and in particular, the judgment in Vodacom Service Provider Co (Pty) Ltd v Phala & others (supra). That decision, it will be recalled, specifically contemplated that the objective of fair, consistent and even-handed proceedings

precluded commissioners from assisting the party to the detriment of the other, putting propositions to witnesses, interrupting witnesses answers, challenging the consistency of a witness, indicating doubt as to witnesses credibility or making submissions regarding the construction of evidence.

[17] In the present instance, in my view, and after a careful perusal of the record, the commissioner’s conduct was such that he overstepped the mark. It is difficult to convey the magnitude of the extent to which the commissioner actively engaged in the proceedings but read as a whole, the transcribed record reflects that the arbitrator failed to respect the roles of the parties’

respective representatives and assumed to herself the role of leading evidence and conducting cross-examination. The scope of the

arbitrator intervention, was clearly not confined to seeking clarity in respect of matters raised by the questions put to witnesses by the parties’ representatives. The parties’ representatives were, in effect, reduced to the role of spectators. The arbitrator’s conduct was in clear breach of the above principles.

[18] For the above reasons, in my view, the arbitrator’s award stands to be reviewed and set aside. Since the basis for the review is that the parties were denied a fair hearing, it is appropriate that the matter be remitted to the first respondent for rehearing before an arbitrator other than the second respondent.

I make the following order:

1. The arbitration award issued by the second respondent on 14 July 2014 under case number GPD 021410 is reviewed and set aside.

2. The matter is remitted to the first respondent for rehearing before an arbitrator other than the second respondent.

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT

REPRESENTATION

For the applicant: Mr C De Heus, Du Plessis De Heus and Van Wyk Attorneys.