Filter & Hose Solutions a Division of Hudaco Trading (Pty) Ltd) v Commission for Conciliation, Mediation and Arbitration and Others (JR182/22) [2024] ZALCJHB 452 (18 November 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR182/2022

In the matter between:

FILTER & HOSE SOLUTIONS (A DIVISION OF HUDACO TRADING (PTY)LTD Applicant and COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION First Respondent COMMISSIONER BONGINKOSI ZULU Second Respondent SIMPHIWE MASOMBUKA Third Respondent

Heard: 04 July 2024

Date Delivered: 18 November 2024

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them via email. The date for hand-down is deemed to be 18 November 2024.

JUDGMENT

BALOYI, AJ

Introduction

[1] This is an application in terms of which the applicant seeks an order to review and set aside the arbitration award made by the second respondent (the Commissioner) acting under auspices of the first respondent, the Commission for Conciliation, Mediation and Arbitration (the CCMA), under case number GAEK4286-21.

[2] The Commissioner found that the dismissal of the third respondent was substantively unfair and ordered the applicant to pay compensation to the applicant in the sum of R 74 160.00

[3] The application is opposed by the third respondent. The third respondent seeks condonation for the late filing of the answering affidavit.

Condonation for the late filing of the answering affidavit

[4] The third respondent seeks condonation for the late filing of the answering affidavit.

[5] The factors applicable when considering applications for condonation are well-known as elucidated in Melane v Santam Co Ltd[1] as follows;

“In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus, a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent’s interest in finality must not be overlooked. I would add that discursiveness should be discouraged in canvassing the prospects of success in the affidavits. I think that all the foregoing clearly emerge from decisions of this Court, and therefore I need not add to the ever-growing burden of annotations by citing the cases.”

[6] In Brummer v Gorfil Brothers Investments (Pty) Ltd and Others[2], it was held that it was appropriate that an application for condonation be considered and granted if that is in the interests of justice and refused if it is not. The interests of justice must be determined by reference to all relevant factors including the nature of the relief sought, the extent and cause of the delay, the nature and cause of any other defect in respect of which condonation is sought, the effect on the administration of justice, prejudice, and the reasonableness of the applicant’s explanation for the delay or defect. To that end, it is accepted that the interest of justice is not a self-standing factor to be considered.

[7] The delay in filing the answering affidavit is excessive and third respondent has not set out a reasonable explanation for the delay other than that he did not know that he had such a short notice to file the opposing affidavit. Furthermore, the third respondent allege that he does not have the legal experience and he does not know the correct process. In my view, these are not reasonable reasons or explanation considering the fact that the review application was timeously served on him and which he acknowledged receipt. Furthermore, he was at some point being assisted by the pro bono office.

[8] Where the delay is excessive and no reasonable or acceptable explanation has been given, that would be the end of the matter. However, the applicant seeks to review and set aside an award in favour of the third respondent. The question is whether it would be in the interest of justice to deny him an opportunity to defend an award in his favour. To deny, the third respondent such an opportunity cannot be fair and in the interest of justice. I have considered the applicant’s submissions on the aspect of prejudice. The applicant contends that the respondent’s laxity has caused unjustifiable financial burden and has unreasonably

delayed the finalisation of the review application. There is substance in this contention. However, this court being the court of equity, I am not inclined to make any costs order against the third respondent. In the interest of justice and to bring this matter to finality, the third ‘respondent’s non-compliance with the rules is condoned.

The facts

[9] The third respondent was employed by the applicant on 15 January 2015 as a Boilermaker until his dismissal on the 10 May 2021. The facts indicate that the applicant leased the property where it operates its business from Mr Jarrod Katzin (Jarrod). When Jarrod vacated the property, he left behind some machinery which the applicant claims it was mandated to look after as the lessee of the property.

[10] One of the machineries left behind by Jarrod and which led to the dismissal of the third respondent is a welder transformer that the applicant alleges that the third respondent and his colleagues stripped and sold its parts at a scrap yard without the applicant’s permission.

[11] The third respondent and his two colleagues were charged with one count of gross misconduct of misappropriation of company property. The charge read as follows:

Gross misconduct - Misappropriation of company property

a. In that on 17th March 2021, you acted in common purpose with Kimbi Beni and Sam Matjie to remove a welder transformer from the company premises without authorization to do same.

[12] At the internal disciplinary hearing, the third respondent pleaded guilty to the charge and was found guilty as such and was dismissed.

[13] The third respondent referred a dispute of unfair dismissal to the CCMA and the matter came before the second respondent. The third respondent for the first time at the CCMA denied the charge against him.

[14] Before the Commissioner, the applicant called two witnesses, Geoffrey Keel and Bathabile Mashigo.

[15] Geoffrey Keel (Keel) testified that he is the floor manager and the third respondent reports to him. He testified that there was a Pipe Bender that was missing and he confronted everyone including the third respondent about its whereabouts. The third respondent and his colleagues denied knowledge of its whereabouts. He decided to look at the video footage and noticed something suspicious. It was at the time Keel was looking at the footage that he noticed that the third respondent and his two colleagues loading the welder machine in the company car. The car tracker showed that they took the welder machine to a scrapyard.

[16] The third respondent and his two colleagues were suspended. Keel denied that the third respondent before the disciplinary hearing or during the hearing informed him that the welder machine was given to him and his colleagues by Ndlovu (Ndlovu was employed by Jarrod). He testified that they did not ask for permission from management to remove the machine and as such the respondent contravened a rule.

[17] In cross-examination Keel admitted that the third respondent informed him that the tooling that he was looking for had disappeared.[3] It was put to Keel that he (Keel) requested the third respondent to provide ‘solid evidence’ that the welder machine was given to third respondent by Ndlovu. Keel testified that the third respondent pleaded guilty and as such there was no evidence led at the hearing and that he was giving the third respondent advice on how to present evidence at the hearing since it was his first disciplinary hearing.[4]

[18] Keel admitted that there was furniture that the landlord left behind and it was sold to their employees and that Ndlovu was also given stuff by the landlord but does not know what he did with it.[5]

[19] Keel admitted that he saw a footage where the third respondent and his colleagues were loading chairs and stainless-steel scrap that was given to them.[6]

[20] The applicant’s second witness was Bathabile Mashigo (Mashigo). Bathabile confirmed that the applicant was leasing the property from Jarrod. That the letter that was brought by the third respondent purportedly written by Jarrod was brought after the disciplinary hearing was completed. She testified that Ndlovu is unknown to the applicant.

[21] In cross-examination, Mashigo confirmed that the third respondent and his colleagues did not mention at the hearing that the welder machine was given to them by Ndlovu. Mashigo could not confirm or deny that goods and other furniture were taken by their employees that were left behind by Jarrod.[7]

[22] The third respondent testified that he reported to Keel about the missing tool. After reporting, Keel, the third respondent and his colleagues viewed the CCTV footage to establish who took the tooling. It was during the viewing of the CCTV footage that the applicant learned that the third respondent and his colleagues had taken the welding transformer. He testified that the CCTV footage further showed employees of the applicant taking stuff (furniture and other machinery) that the landlord had given away.[8]

[23] The third respondent testified that he spoke to Keel about them being given the welding transformer by Ndlovu just before the disciplinary hearing and Keel indicated that he wants something (document) from Jarrod to confirm that it was given to them since Ndlovu was just a mere employee.[9] He testified that Jarrod was not available at the time of disciplinary hearing and only received the letter after the hearing was concluded.

[24] In cross-examination, the third respondent testified that he pleaded guilty because he was the person identified in the footage but his intention was not to steal but taking what was given to him. The welder machine was not working at the time they took it to the scrap yard, they were told it would be very costly to repair it because the parts are expensive as it a very old machine.

[25] The third respondent denied that they removed the machine after hours, according to him they removed the machine just before 17:00. He testified that he informed Keel during the suspension that the welder machine was given to him and his colleagues by Ndhlovu. That Jarrod was not around Gauteng at the time of the disciplinary hearing and that is why he could not produce the document.

[26] The third respondent called one witness to support his case. Beni Kimbi testified that the welder machine was given to them by Ndhlovu. He confirmed that Jarrod was the author of the letter that was presented to the applicant after the disciplinary hearing. He further confirmed that they stripped the machine because it was expensive to have it fixed because it was very old.

The Commissioner’s award and grounds of review

[27] The applicant’s case on review as advanced in its heads of argument, and in oral argument before me is firstly, that the Commissioner mischaracterised the dispute that was presented before him. It is contended by the applicant that the issue that the Commissioner had to decided was whether the removal of company property with or without authorisation constitute a dismissible

offence.

[28] Secondly, the applicant contends that Commissioner attached undue weight on inadmissible hearsay evidence (the hearsay ground of review).

[29] In his finding, the Commissioner ruled that the crisp issue was whether the property that was removed belonged to the respondent (the applicant in the review application) and if the property did not belong to the respondent, would the applicant’s (third respondent) conduct constitute misconduct involving unauthorised removal of company property.

[30] In relation to the letter presented by the third respondent in which Jarrod allegedly confirms that he had given the welder machine to Ndlovu, the Commissioner ruled that the applicant’s (third respondent) defence was corroborated by the respondent’s landlord, Jarrod and the applicant has discharged his obligation of providing an explanation as he was faced with possible dismissal and nothing more was required from him.

Analysis of the applicant’s grounds of review

[31] There is no merit in the applicant’s contention that the Commissioner mischaracterised the dispute presented before him. At the centre of this dispute is the welder machine that does not belong to the applicant. It is common cause that it belongs to the landlord.

[32] In his defence, the third respondent contends that the welder machine was given to him. The third respondent informed Keel that the welder machine was given to him and his colleagues before the disciplinary hearing commenced. Keel did not dispute this assertion in the arbitration. In my view and having regard to the fact that employees of the applicant were seen on CCTV footage taking stuff (furniture and other machinery) that were left behind by the landlord, it was incumbent upon the applicant to investigate the assertion by the third respondent before the hearing commenced that the welder machine was given to them by Ndhlovu. That the respondent pleaded guilty to the charge is irrelevant because he explained why he pleaded guilty.

[33] In relation to the ground of review that the Commissioner attached undue weight on inadmissible hearsay evidence, I find that there is merit to this ground of review. The applicant did not challenge the authenticity of the letter purportedly written by the landlord. The applicant however challenged the content therein.[10]

[34] In my view, the applicant had placed in issue the content of the letter and the Commissioner should have dealt with the issue before the commencement of the arbitration or at best encourage the third respondent to call witnesses to support his contention.

[35] In Exxoro Coal (Pty) Ltd v Chipana and Others[11],the Labour Appeal Court held the following in relation hearsay evidence:

[31] While both sides may be criticised for not raising the issue of admissibility early in the proceedings, i.e. at least as or when the hearsay evidence was adduced, the criticism is tempered particularly because these are not court proceedings and the representatives of the parties are not necessarily legally trained. Notwithstanding, ultimately it was for the commissioner to ensure that the hearing was fair for both sides. A reasonable commissioner in the position of the arbitrator in this matter would not only have known what the law on the admission of hearsay was, if he sought to invoke the law (i.e., the formal rules for the admission of evidence), but would have been alert to the introduction of the hearsay evidence and would have addressed its admissibility promptly so as to ensure fairness and expediency.

(own emphasis)

[36] The Labour Appeal Court set out the appropriate approach to be adopted by Commissioners when confronted with the introduction of hearsay evidence, in the following terms:

‘(1) Section 3(1)(c) of the LEAA is not a license 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 or she 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 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.

[37] In my view, it became apparent at the beginning of the arbitration that the third respondent intended to rely on hearsay evidence. The Commissioner ought to have canvassed the issue with both parties.

[38] This is a matter that ought to be remitted to the CCMA for hearing de novo.

[39] In the premise the following order is made:

Order

1. The late filing of the third respondent’s answering affidavit to the applicant’s review application is condoned.

2. The arbitration award issued by the first respondent under the auspices of the first respondent under case number GAEK4286-21 is reviewed and set aside and the dispute is remitted to the second respondent to be arbitrated de novo before a commissioner other than the second respondent.

3. There is no order as to costs.

F.I Baloyi

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Instructed by: Ms Michelle Lage Donaldson Attorneys Inc For the third Respondent: In person

[1] 1962 (4) SA 531 at 532 B-E.

[2] 2000 (2) SA 837 (CC).

[3] Transcribed record page 32, line 10 -11

[4] Transcribed record, page 34, lines 24 -28, page 35, lines 5-10

[5] Transcribed record, page 36, line 17- 20

[6] Transcribed record, page 39, lines 19 -28, page 40, lines 5 -21

[7] Transcribed record, page 68, line 21 -23

[8] Transcribed record, page 78, line 5 – 27, page 79

[9] Transcribed record, page 80, line 5-8

[10] Transcribed record, page 100, line

[11] [2019] 10 BLLR 991(LAC)