Manyonya v Commission for Conciliation, Mediation and Arbitration and Others (C683/2018) [2020] ZALCCT 12 (7 May 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

Not Reportable

Case no: C683/2018

In the matter between:

NOSIKHUMBUZO MANYONYA Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION First Respondent

COMMISSIONER RICHARD HEATH Second Respondent

PRASA SOC T/A METRORAIL WESTERN CAPE Third Respondent

Date heard: 30 January 2020

Delivered: 7 May 2020 by email

JUDGMENT

RABKIN-NAICKER, J

[1] This is an opposed application to review an arbitration award under case number WECT 16830-17. The second respondent (the Commissioner) found that the dismissal of the Applicant was procedurally and substantively fair.

[2] The applicant was employed as an operations coordinator by the third respondent (PRASA), earning a monthly salary of R29 505.00 . On the 6 March 2017, she was involved in a motor car accident. She submitted a medical certificate for that day from a local government clinic. It was applicant’s evidence at arbitration that on the next day,

she went to see her general practitioner, Dr Nonkanyiso Maud August who provided her with a sick note. This sick note was handed in at her disciplinary hearing some months later. On the 9th March 2017, she returned to work.

[3] On 3 May 2017, the applicant pleaded guilty in a disciplinary hearing to the following: that the medical certificate she had filed (from a Government clinic) had been fraudulently altered by a third party. She was subsequently dismissed on the 28 September 2017.

[4] The applicant sets out the grounds for reviewing and setting aside the Award as follows:

4.1 the second respondent failed to take relevant evidence into account;

4.2 the second respondent was inconsistent in his application of the applicable rules;

4.3 the second respondent was biased and improperly analysed the evidence; and

4.4 the second respondent failed to properly apply his mind to the evidence before him.

[5] I first deal with the allegation of bias and improper conduct. It was submitted on behalf of the applicant that the Commissioner simply disregarded the evidence of Dr August. Dr August gave evidence that she did issue a sick note for the applicant after she visited her on 7 March 2017 at her De Noon practice. The sick note which was before the Commissioner was confirmed by her to be in her handwriting. She denied that she had backdated the sick note certificate and stated

that was not something she would do. The Commissioner then proceeded to question Dr August as follows:

“ COMMISSIONER: Okay, Can I ask you doctor, I’m going to be very straight with you because I sit her every single day and I hear a lot of these cases okay.-

--- Yes Commissioner.

Now I know from these cases that there is a syndicate in various areas in the city where doctors run apparent doctor practices to give our..(indistinct), to give out doctor’s notes for cash, there is no records kept, there’s nothing like that okay. So the suggestion made by Ms Nicholas is that there is no record of this transaction and that’s very odd in a doctor’s practice because a doctor’s practice is a business as she said, why do you not keep records, financial records of transactions? ---- We do keep records in fact we even have a book where we write everyone who has come in on that particular day and when the patient is medical aid or has paid cash..(intervention)

Just hold on. What does this book say, the names of all the patients right Yes

this has the name of the patients and also for…

And how they have paid? And how they have –paid . Yes. And the unfortunate

part in her case is that when she came to us I had just asked someone to come and help me with just the recordings and he was not someone who is professional so I would come in and do everything myself so in her case she was not in the book but it was written in her folder. At that time when they came I could not find her folder because I was looking for just a page where I had written it but when she came in it was November as I recorded here, when she came we actually told her that we can’t find her folder what is happening that’s when she told us that it’s under her family folder, it’s under her mother’s name.

Do you have a record in that folder that she visited that day? ---- Yes I do, I’ve got all other records.

Can you submit it to me? Can I see it Show me the page that says she visited that day. Thank you.

It’s the 7th March. So can you just take me through – I can’t understand your notes doctor. ---- All right. It says MVA meaning motor vehicle accident. Then with soft tissue injury. Then passenger in a private car on 06/03/2017 seen at day hospital yesterday meaning that I saw her on the 7th then the yesterday was the 6th.

But you wrote there the 9th? --- No

Where did you write the 7th ? --- This is how I write seven.

So what do you call those notes there, What do you call those notes in her file?

--- Her medical records.

Okay. I’m just stopping the record I want to make a copy of the page------- Okay

Doctor. I don’t want to keep you long can I ask you and the applicant to step outside I want to chat to both of these legal representatives quickly and then I’ll make a copy …”

[6] The appearance of an assumption by the Commissioner that because of the location of the doctor’s practices, there could be fraud involved, could be inferred from the above interaction. However, it is the interaction between the Commissioner and the parties representatives which is on the transcribed record before me that is even more problematic. This interaction included the following:

“COMMISSIONER: So you’re saying your case is this …(indistinct) the sick note into question as to whether it existed at the time?

MS NICHOLAS: And there is no way a doctor is going to come and say I backdated or whatever and I don’t want to discredit her in anyway. You understand what I am saying? I even went….(intervention)

COMMISSIONER: But is it not your job to discredit her?

MS NICHOLAS: Yes it is but remember she works with other Metrorail people as well and I don’t want her not to …(indistinct)

because that’s why I asked is there a receipt because she specifically told me she’s been audited and she must keep

records. Where is the receipt, if you pay cash you need to give a receipt. So ….(intervention).

COMMISSIONER: Because I’m asking you…(indistinct) you know you finished

– you say you finished your questions but you know your case is not – is your case not to discredit this woman, whether she’s a doctor or not Ms Nicolas? Do you understand what I am saying? You’re saying this woman backdated this document?

MS NICHOLAS: But she’s saying she didn’t so how am I going to …(intervention)

COMMISSIONER: So you are leaving it in my hands?”

[7] In my view, the above record reveals egregious conduct by the Commissioner. The Commissioner’s ‘advice’ therein has nothing to do with the ‘helping hand’ principle. As was stated by the LAC in Nkomati Joint Venture v CCMA & Others[1]:

“[5] Clauses 20 and 21 of the CCMA Guidelines are the source of the so-called helping hand principle. The provisions require an arbitrator at the commencement of arbitration proceedings to inform the parties (inter alia) of: (i) the fact that the proceedings will be recorded; (ii) any potential conflicts of interest; (iii) the rules of proceedings; (iv) the role and powers of the arbitrator;

(iv) the procedure in terms of which documents are introduced into proceedings; and (v) the requirement that if evidence of a witness is disputed, the other party should, at the appropriate stage, question the witness in that regard and put its version to the witness so that the witness has an opportunity to respond. Clause 21 of the CCMA Guidelines is of particular relevance. It reads:

’21 The extent to which the arbitrator deals with any of these issues should be determined by the experience of the parties, or their representatives, and their knowledge of CCMA procedures. If it is evident at a subsequent stage that a party or its representative does not understand the nature of proceedings and that this is prejudicing the presentation of its case, the arbitrator should draw this to the attention of the party. Circumstances in which it may be appropriate for the arbitrator to do this include if a party:

21.1 fails to lead evidence of its version under oath or affirmation;

21.2 fails to cross-examine the witnesses of the other party or fails to put its version to those witnesses during cross-examination; and

21.3 changes its version of events or puts a new version during proceedings.’

[8] What the Commissioner did in casu was to attempt to persuade the employer’s representative (Metro Rail’s employment relations specialist) that she had not gone far enough in cross-questioning the doctor, and should continue to in order to discredit the evidence of Dr August, even though she had finished her cross- examination. This he did having asked the witness and the applicant to leave the room. When this is considered together with his questioning of the Doctor, as referred to above, I am of the view that a reasonable perception of bias had been established as a ground for review in this matter. Further that the conduct of the Commissioner prevented a fair trial of the matter.

[8] In Lufuno Mphaphuli & Assoc (Pty) Ltd v Andrews[2] O’Reagan ADCJ stated that:

“Where a reasonable apprehension of bias is demonstrated, the court does not enter the debate whether there was actual influence and it is at pains not to measure the degree of the bias apprehended. In BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers' Union and Another (a case involving what was considered to be a quasi-judicial tribunal, (the Industrial Court) the following passage appears:

'Provided the suspicion of partiality is one which might reasonably be entertained by a lay litigant a reviewing Court cannot, so I consider, be called upon to measure in a nice balance the precise extent of the apparent risk. If suspicion is reasonably apprehended,

then that is an end to the matter.'

[9] Given that I have found that there was not a fair trial of the matter, and that on an objective basis a suspicion of partiality can be reasonably inferred, the result of the arbitration must be considered as one that a reasonable arbitrator could not reach. This is a matter which must be sent back for re-hearing in order that a fair trial of the dispute can be arbitrated. I do not intend to make an order as to costs in line with the jurisprudence on costs orders in this Court[3].

[10] I make the following order: Order

1. The Award under case number WECT 16830-17 is reviewed and set aside.

2. The dispute is referred back to the first respondent for hearing before an arbitrator other than second respondent.

H. Rabkin-Naicker Judge of the Labour Court

Appearances:

Applicant: T. Du Preez instructed by Malcom Lyons and Brivik Inc

Respondents: Con Joubert S.C. with Nate Mauritz instructed by Werksman Attorneys

[1] Nkomati Joint Venture v Commission for Conciliation, Mediation & Arbitration & others (2019) 40 ILJ 819 (LAC) at paragraph 5.

[2] 2009 (4) SA 529 (CC) (2009 (6) BCLR 527; [2009] ZACC 6) at para 185 referring to BTR Industries SA (Pty) Ltd v MAWU 1992 (3) SA 673 (A)

[3] SA Commercial Catering & Allied Workers Union & others v Woolworths (Pty) Ltd (2019) 40 ILJ 87 (CC) at para 60

[3] SA Commercial Catering & Allied Workers Union & others v Woolworths (Pty) Ltd (2019) 40 ILJ 87 (CC) at

para 60