Sneller Verbatim/MLS IN THE LABOUR COURT OF SOUTH AFRICA BRAAMFONTEIN CASE NO: JS 274/01 2003-03-24 In the matter between M KOAI Applicant and THE DEPARTMENT OF CORRECTIONAL SERVICES Respondent J U D G M E N T BARRIE, A J: [1] The applicant used to be employed by the third respondent, the Department of Correctional Services ("the Department") as a correctional officer. He was dismissed on 22 September 1999. [2] The matter has a long prior history, dating back to April 1999. It has its origins in animosity that apparently existed between the applicant, Mr Koai, and his superior, a Mr Reinecke, even before that time. [3] The basis for Mr Koai's dismissal was that he had on 5 April 1999 intimidated Mr Reinecke by threatening to kill him. [4] A disciplinary inquiry convened by the Department has found him guilty of this charge and also on another charge that he had been absent from work during official working hours without permission. For the latter offence the chairman of the disciplinary inquiry imposed a penalty of a "serious written warning." [5] Mr Koai appealed against the finding. The chairman of the appeal hearing confirmed the findings of the chairman of the
disciplinary inquiry, except that he decided to change the penalty for the unauthorised absence to summary dismissal as well. [6] Mr Koai disputed the fairness of his dismissal and the matter found its way to arbitration proceedings in terms of Section 191 of the Labour Relations Act, 66 of 1995 ("the LRA") under the auspices of the second respondent ("the CCMA"). [7] The third respondent ("the Commissioner") heard the matter on 18 September 2000. Mr Koai was represented by a union official from the Police and Prisoners' Civil Rights Union, Mr Maluka, who had also represented him in the Department's prior disciplinary and appeal proceedings. The Department was represented by an official from the Department, Mr Mokonehatse. [8] The Commissioner handed down a written award on 27 November 2000. The Commissioner recorded that the parties had agreed that the only issue he had to decide was whether Mr Koai's dismissal for the alleged intimidation had been substantively fair. [9] The Commissioner had heard the testimony of six witnesses. He concluded that the Department had been able to discharge the onus resting upon it in terms of Section 192 of the LRA to prove that the dismissal had been (substantively) fair. He recorded his award as being that: "1. The dismissal of Mr Moshe Moses Koai was substantively fair and dismissal was an appropriate sanction. 2. In the circumstances the claim for alleged unfair dismissal is dismissed. 3. I make no order as to costs." [10] Mr Koai instituted review proceedings. He was assisted by an attorney. In his initial supporting affidavit he boldly stated that: "7.1 The 2nd respondent was biased when issuing this award. 7.2 The 2nd respondent failed to apply his mind fully to the case. 7.3 The 2nd respondent ignored relevant evidence led (by) the applicant."
[11] In a supplementary affidavit filed in terms of the provisions of Rule 7(A)(6) of rules of this Court, Mr Koai added substance to his prior averments and identified what can be regarded as his principal complaint. The complaint is that the Commissioner had erroneously concluded that Mr Koai's union representative had during the Department's domestic disciplinary proceedings admitted on behalf of Mr Koai that he had intimidated Mr Reinecke on the day in question. [12] The review application was not opposed by the Department and review was granted in terms of a reasoned judgment of Revelas J on 5 February 2002. [13] The Department subsequently applied to have the judgment rescinded on the ground that it had not received the notice of motion and that the supplementary affidavit had not received proper attention in the Department's legal services section because of a state of disarray that reigned there at the time. [14] The rescission application was granted on 16 January 2003 by agreement of the parties. [15] I have to decide whether there are grounds for interfering with the Commissioner's award. [16] In his supplementary papers Mr Koai contends that the Commissioner's award was unjustifiable, unreasonable and bizarre. I take it that this was intended to convey that Mr Koai wished to aver that: 1. The award was not justifiable in relation to the reasons given for it as referred to and explained in the judgment of Carephone (Pty) Limited v Marcus NO and Others 1998 19 ILJ 1425 LAC 1434 B - 1435 E. 2. The award was not rational or objectively justifiable if regard be had to the evidential material that served before the Commissioner, as referred to and explained in Shoprite (Pty) Limited v Ramdaw NO and Others 2001 9 BLLR 1011 LAC in paragraphs 17 to 26 at 1018 I to 1022 C, paragraph 82 at 1038 E to H and paragraph 101 at 1043 G to H, and 3. The arbitrator had committed a gross irregularity in the conduct of the proceedings as intended by Section 145(2)(a)(ii) of the LRA.
[17] The principal peg on which the attack against the Commissioner's award is hung is the Commissioner's statement in the reasons for the award that the applicant had through his union representative admitted his guilt to the intimidation charge at the original disciplinary inquiry. [18] The Commissioner recorded that: "The applicant through his representative has admitted the commission of the offence at the disciplinary inquiry by stating that Mr Koai's (applicant) intimidation was because no one was able to help him, even when he stated his reasons and Mr Reyneke, the supervisor of personnel, could not help.' (As per page 7 on annexure C.) The applicant was aware of the Department's disciplinary procedure and given the length of his service, and that fact that he was a member of the Police and Prisoners' Civil Rights Union, he ought to have known the correct and proper channels to utilise in challenging an unreasonable denial to obtain permission to leave. Having evaluated the parties' evidence above, I must now decide whether the dismissal was substantively fair or not, as alleged by the applicant. In my view, the applicant's admission brings the inquiry to an end. The applicant has breached the company rule and he knew about the rule and in terms of the Department's disciplinary code, dismissal is applicable sanction for breaching
the rule. Therefore, following from my views expressed above, I find that the applicant's dismissal was substantively fair. All the facts which are immaterial and irrelevant have been omitted." [19] There is merit in the applicant's attack. The record of the original disciplinary inquiry recording Mr Koai's union representative's submissions reads as follows: "Mr Maloka said Mr Koai is not guilty of anything. Mr Maloka said the one of not on duty is clear and understandable as Mr Koai's father was sick. Mr Maloka said Mr Koai's intimidation was because no one was able to help him, even when he stated his reasons and Mr Reinecke, supervisor of personnel, could not help. Mr Moloka said Mr Koai had the decency of coming to work and report his matter. According to Mr Maloka, if he had a problem with a junior from outside will make sure he nail you at work. Mr Maloka said only Mr Reinecke opened a case but others who were threatened did not. According to Mr Maloka it shows that Mr Reinecke and Mr Koai are having their personal problems, but they have brought that problem to work. Mr Maloka said Mr Koai would not just wake up in the morning and say I am going to shoot you. It is just in the statement but Mr Koai did not say it."
[20] These statements appear to indicate that the union representative had either in his own mind accepted that Mr Koai had committed the intimidation or that he thought it likely that the chairman of the inquiry would come to such a conclusion. However, the representative clearly did not concede that the intimidation had taken place and the Commissioner erred by coming to the conclusion that he had. [21] That is, however, not the end of the inquiry before me. I have to take into account that the reasons for the Commissioner's award contain a detailed recording of the evidence that he had heard and that, after reviewing the evidence, he decided and recorded that the Department had been able to discharge the onus of proof. [22] The Commissioner recorded that he had evaluated the evidence. He recorded the facts which he regarded as material and relevant in his reasons. That evidence included the evidence of the applicant and a Mr Mothlohi and of the initial complainant, Mr Reinecke and a further witness Mr Van Vuuren. [23] The striking element of the evidence of Messrs Koai and Mothlohi was that their evidence appeared only to relate to the unauthorised absence charge. The upshot of their evidence was that Mr Reinecke had on the same day as the date of the alleged intimidation, unreasonably refused to approve compassionate leave for Mr Koai whose father had allegedly fallen ill. [24] It was only in cross-examination that Mr Koai stated that he denied that he had uttered the words that Mr Reinecke had complained of and that he denied that any altercation with Mr Reinecke had occurred that had been witnessed by Mr Van Vuuren. No efforts were made to contextualise this denial in relation to the allegations that Mr Reinecke and Mr Van Vuuren had made. It was simply a bare denial. [25] Mr Koai's failure directly to address the allegations of Messrs Reinecke and Van Vuuren had also obtained at the disciplinary inquiry. [26] There were also serious contradictions between the evidence of Mr Koai and his witness, particularly regarding where exactly the altercation about the leave had occurred. [27] In these circumstances a valid interpretation of the
Commissioner's reasons for his award may be that he had evaluated the evidence and had concluded that the Department's evidence regarding the intimidation outweighed Mr Koai's denial thereof. He believed Messrs Reinecke and Van Vuuren and not Mr Koai. If so, the Commissioner's recording that Mr Koai had via his representative admitted guilt, was simply an additional reason for the conclusion that the Department had been able to discharge the onus. [28] In these circumstances, there might be a rational objective basis justifying the connection made by the Commissioner between the material properly available to him and the conclusion he eventually arrived at. However, this does not appear with sufficient clarity from the Commissioner's reasons for his award. Although the Commissioner had apparently concluded that the evidence that intimidation had occurred was acceptable and that Mr Koai's denial was not credible, the principal reason that he gave for not accepting Mr Koai's denial, was that Mr Koai had on a prior occasion admitted the intimidation. This reason was wrong. [29] Taking into account the detailed recording of the evidence of the witnesses and reasons for the award, the error that the Commissioner committed of itself does not indicate that the Commissioner had not evaluated the evidence properly and that the conclusion after such evaluation that the Department had discharged the onus was unjustifiable or unjustified. [30] Nevertheless, in terms of his reasons as appears from the reasons for his award, the Commissioner relied heavily on an incorrect and thus irrelevant factual premise. [31] In the circumstances the Commissioner's award is not objectively justifiable in relation to the reasons given for it and it should potentially be reviewed and set aside. [32] Mr Boda, on behalf of the Department urged me to find that on the evidence in the papers before me, I should find that the award was nevertheless justifiable and I should accordingly not review it and set it aside. [33] I can unfortunately not accede to this suggestion. The record of the proceedings before me is deficient and I am simply not in as good a position as the Commissioner is to come to a conclusion. Despite the lapse of time since the matter served before the
Commissioner, he is still better placed than I am to do justice to the matter. [34] In these premises I intend to set the award aside and to remit it to the Commissioner with certain directions. As regards the costs of the review proceedings it appears to me that it would be inappropriate to make any costs order. Mr Koai will admittedly be successful with his review application. However, if the Commissioner confirms his prior award it would be unjust for Mr Koai to have been awarded the costs of the review. I make the following order: 1. The award of Commission Thabang T Serero ("the Commissioner") of 27 November 2000 issued under case number GA 85139 in the Commission for Conciliation, Mediation and Arbitration, that: "1. The dismissal of Mr Moshe Moses Koai was substantively fair and dismissal was an appropriate sanction. 2. In the circumstances the claim for alleged unfair dismissal is dismissed. 3. I make no order as to costs. ("the Commissioner's prior award") is set aside." 2. The applicant's attorneys shall supply the Commissioner with: 2.1 The papers that the Commission for Conciliation, Mediation and Arbitration have cause to be filed in the review proceedings (marked "X"). 2.2 The transcript of the record of the proceedings filed in the review proceedings (marked "Y"), and
2.3 A transcript of this judgment. 3. The Commissioner is directed to reconsider the matter and to issue an award in the light of this judgment and without having regard to the alleged admission of guilt referred to in the "Analysis of evidence and argument" in the reasons for the Commissioner's prior award. 4. The Commissioner shall not hear any witnesses unless he finds himself unable to come to a conclusion on the basis of the material available to him. In such an event the Commissioner may require some or all of the witnesses who had testified before him before, again to testify if they are available. 5. Unless the Commissioner decides to rehear witnesses he shall not be obliged to afford the parties further opportunity to address argument to him. He shall, however, be entitled if he so desires, to call for further argument from the parties. 6. There shall be no costs order in respect of the review proceedings in this court." [35] In the order I refer to documentation marked "X" and "Y". I have marked the relevant documents in the Court file in this manner. F G BARRIE
Acting Judge of the Labour Court 29 May 2004