Sangweni v Matshaka NO and Others (JR1207/15) [2016] ZALCJHB 173 (10 May 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: JR 1207/15

Not reportable

In the matter between:

SANGWENI SIPHO

Applicant

and

MATSHAKA LUNGILE N.O

First Respondent

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

Second Respondent

ON DIGITAL MEDIA (PTY) LTD

Third Respondent

Heard: 26 April 2016

Delivered: 10 May 2016

RABKIN-NAICKER, J

Introduction

[1] This is an unopposed application in which applicant seeks the setting aside of an arbitration award under case number GAJB 2182-15 and the remittal of the dispute to the second respondent. In addition, there is an application to join a fourth respondent to the review proceedings. The joinder application is made on the basis that before applicant’s dismissal, the applicant’s employer changed as there was a transfer of a business as a going concern in terms of S197 of the LRA.

[2] The applicant was dismissed after he was charged with: ‘threatening violence; assault and violence on 15 December 2014; and disorderly behaviour indulging in rough and unruly behaviour and practical jokes whether or not such behaviour endangers the safety or health of others and members of the workplace.’

[3] His dismissal was found to be procedurally and substantively fair by the first respondent (the Commissioner). The grounds for review of the award set out in the founding affidavit, which was not supplemented, are as follows:

“It is my respectful submission that the first respondent committed a gross irregularity in the conduct of proceedings.

More specifically he preferred a version of events based on hearsay evidence over a version on direct evidence.

This must also be considered in light of the fact that the arbitration is a complete re-hearing of the matter and that the Third Respondent bore the onus of proof.

The award is unreasonable to the degree that it is not one which a reasonable decision maker could make.”

[4] The applicant avers that he was in essence charged with assaulting a co-worker, one Wendy, which he denies. The transcript of the arbitration proceedings records his evidence in chief regarding the day in question as to the inter alia as follows:

“I worked as per normal I then took a break around about 10 o’clock if I’m not mistaken my first tea break then on my return to my desk my phone was missing. I asked around and one of the supervisors had seen Wendy take the phone so I was then advised that Wendy had taken my phone to which I first (inaudible) with Wendy she told me that she had taken the phone due to the company’s contract being terminated so she was her money immediately as in on 15th hence I get paid on the 25th. I advised her that my phone, the phone was the stuff personal to me and she doesn’t have a right to take my phone. She didn’t

have the phone with her the first time I spoke to her so then the process is I report to somebody in my reporting line to which I advised Irene my supervisor that my phone had not been stolen Wendy had taken my phone and she said she (inaudible) with Wendy. Irene tried speaking to Wendy, she came back and said Wendy would return the phone she didn’t come back with the phone. An hour or so apart from the incident I went back to Irene to tell her that I still don’t have my phone. If I’m not mistaken from the time the phone was taken to the time the incident happened there were two hours in between so my concern was that there was stuff personal to me on the phone, bank account numbers, private messages and pictures. I went back to Irene again to advise that I still don’t have the phone and she said she would speak to Wendy then on my break I went back to Wendy to try and retrieve my phone. What had happened is she had two phones on her and not mine she had like a bunch of other stuff in her hand so I tried taking the two phones in an effort that she would return my phone. I only managed to grab one of the phones from her, the other one she stuck in her bra or underwear her top underwear but she slipped something into her locker and locker is nearby where she was seated, three if not four were open and I opened the lockers that were open against the statements made by the lady

that made the presentations now that I broke lockers which would like to think that they have pictures of a broken locker. Okay then on leaving (inaudible) we were struggling when I tried taking the phones from Wendy I only got one phone. When I left the room that they occupy which against the, which I also (inaudible) that it’s not a changing room hence there’s no sign on the door, toilets has a sign that no men are supposed to go in, it’s just a room that somebody who works for the company wouldn’t know that there are other people changing in that area hence I don’t work with the company, it’s a company works on the same premises as I did. Okay when I tried leaving I told Wendy that I will report the matter then she called me back and gave me the phone….”

[5] Thus it is apparent that according to the applicant he was involved in a scuffle with Wendy. However he denies assault. It was brought to the Commissioner’s attention by applicant’s representative at the arbitration that the evidence by the Chairperson of the disciplinary hearing regarding the allegations against applicant was hearsay. The Commissioner made no

statement to the effect that he would consider whether such hearsay should be admitted. His Award is silent on the issue. While it is trite that CCMA arbitrations should be conducted with the minimum of legal formality a Commissioner is required to apply his mind to section 3 of the Law of Evidence Amendment Act. A footnote to the CCMA 2015 Arbitration Guidelines for Commissioners is explicit in this regard and is worth recording:

“3 For example, in Le Monde Luggage t/a Pakwells Petje v Dunn NO & other (LAC), the Labour Appeal Court (at paras 17 to 19) held that an arbitrator may ascertain any relevant fact in any manner that it deems fit provided that it is fair to the parties. In this judgment the arbitrator approved the approach articulated by the Labour Court in Naraindath v CCMA & Others (LC) at para 32 that arbitrators should adopt the same approach to evidence as that applied by the Small Claims Court. In Naraindath the Labour Court held that an arbitrator could admit hearsay evidence if satisfied on proper grounds that the evidence was reliable. When presented with hearsay evidence, including evidence on affidavit of a witness who is not present, the arbitrator must evaluate whether or not to admit the evidence in accordance with the requirements of section 3 of the Law of Evidence Amendment Act 45 of 1988 (see Matsekoleng v Shoprite Checkers (Pty) Ltd (LAC)). Hearsay evidence may be admitted if the party against whom the evidence is to be adduced agrees to the evidence being admitted or the person upon whose credibility the probative value of the evidence depends also testifies at the proceedings. If neither of these circumstances prevail, an arbitrator may decide whether or not to admit hearsay evidence after having regard to the nature of the proceedings; the nature of the evidence; the purpose for which the evidence is tendered; the probative value of the evidence; the reason why the evidence is not given by the person upon whose credibility the probative value of the evidence depends; any prejudice to a party which the admission of such evidence might entail; and any relevant other factor. “

[6] The Commissioner’s failure to consider the weight to be given to the hearsay evidence which was the only evidence before him directed at the onus of proving the substantive fairness of the dismissal, constituted a gross irregularity and led to an award that a reasonable decision maker could not reach. It is not up to the reviewing court to perform the task of evaluating the evidence as it sat before the Commissioner in line with the Law of Evidence Amendment Act. The dispute must be remitted for hearing anew. Given that it will serve before the second respondent the issue of joinder may be dealt with in terms of Rule 26 of the CCMA Rules.

[7] I therefore make the following order:

Order

1. The award under case number GAJB 2182-15 is reviewed and set aside.

2. The dispute is remitted back to the second respondent for hearing anew before a Commissioner other than the first respondent.

__________________________

Rabkin-Naicker J

Judge of the Labour Court of South Africa

Appearances:

Adv. Nicholas Charles Smythe

Instructed by Saslaw Pro Bono Clinic