In the labour court of south africa



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IN THE LABOUR COURT OF SOUTH AFRICA


(HELD AT CAPE TOWN)

REPORTABLE



CASE NO: C260/2003
OCELLI FRANCKE AUBOUINN KLAASEN Applicant



and

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION First Respondent



COMMISSIONER CJ WESSELLS N.O. Second Respondent
ALEXKOR LIMITED Third Respondent


JUDGMENT



MURPHY AJ,

  1. The applicant has made application in terms of section 145 of the Labour Relations Act (LRA) for an order setting aside the arbitration award made by the second respondent (“the commissioner”) on 8 April 2003.




  1. The applicant sets out various grounds of review in his founding affidavit and in his supplementary affidavit filed in terms of rule 7A(8)(a). However, when the matter came before me the applicant elected to limit his challenge to the award to two review grounds, namely that:




    1. the commissioner committed an irregularity by failing to properly caution the applicant about the implications of him not giving viva voce evidence; and

    2. the commissioner misdirected himself by finding unreasonably that the applicant was dismissed on 20 September 2002 rather than on 11 September 2002.




  1. The applicant was employed by the third respondent (“Alexkor”) as a geologist for approximately 7 years. On or about 9 September 2002 a dispute arose between him and the CEO of Alexkor regarding his failure to furnish the CEO with a report into certain mining activities, which the CEO had requested. The report in question had been completed some time before, but the CEO needed extracts of it for use in a report he was compiling in relation to certain equity transfers. Between 9 and 11 September 2002 some unpleasantness arose around the provision of the information, which led to the applicant being summoned to the office of the CEO on 11 September 2002. What transpired during this meeting remains in dispute.




  1. Alexkor’s version is that after some display on the part of the applicant of recalcitrance in furnishing the report, amounting to insubordination and the refusal to obey a lawful instruction of the CEO, the applicant was suspended pending a disciplinary hearing scheduled for 19 September 2002, chaired by the Company Secretary, and in which the applicant failed to participate fully. At the end of the disciplinary hearing, according to Alexkor, the applicant was dismissed.




  1. The applicant on the other hand contends that he was summarily dismissed at the meeting of 11 September 2002, when the CEO allegedly told him to pack his things and go. Although, he attended the earlier part of the disciplinary enquiry where he successfully raised objections to the partiality of the original chairperson and participated up to a point, he withdrew from the enquiry claiming that he had been dismissed on 11 September 2002 and that the hearing was likely to be a sham or a foregone conclusion.




  1. Following the unsuccessful conciliation of the matter, the dispute was referred to arbitration before the commissioner. The arbitration commenced on 7 February 2003 and concluded on 18 March 2003 after hearing the evidence of 13 witnesses, 5 on behalf of the respondent and 8 on behalf of the applicant. The applicant did not give evidence under oath.




  1. The commissioner handed down his award on 8 April 2003 in which he found that the applicant had been dismissed on 20 September 2002 and that the dismissal was both substantively and procedurally unfair.




  1. Because of the view I take in relation to the first ground of review, I do not consider it necessary to make any finding in relation to the date of the dismissal, except to the extent that the commissioner’s reasoning in that regard has relevance to the first ground. The first ground, as mentioned, alleges that the commissioner committed an irregularity by failing to properly caution the applicant about the implications of him not giving evidence under oath.




  1. At the arbitration hearing the applicant did not have the benefit of representation and conducted his own case to the best of his abilities. During his opening address he made various submissions regarding his dismissal. Firstly, he suggested that the CEO had been motivated by ulterior motives on account of his refusal to withdraw a case he had filed with the Labour Court alleging unfair discrimination. Secondly, he indicated that he interpreted the events of the meeting of 11 September 2002 as tantamount to a dismissal. Thirdly, he presented an exculpatory version of the circumstances surrounding his failure to furnish the report, contending in effect that he had not perpetrated the acts of alleged misconduct. And finally, he gave an account of his reasons for not participating in the disciplinary hearing, saying in effect that because the CEO, during the meeting of 11 September 2002, had taken a strong prior view that he deserved to be dismissed, it would be fairer to refer the matter to arbitration (by which he perhaps meant a disciplinary enquiry conducted by an independent chairperson).




  1. Alexkor called five witnesses to give evidence. They included the chairperson of the disciplinary enquiry, the CEO, the applicant’s immediate superior, and two security officers who had been present at the meeting of 11 September 2002. Collectively they made out a case that the applicant was guilty of insubordination, had merely been suspended on 11 September 2002 and had by his own conduct failed to avail himself of a fair disciplinary procedure on 19 September 2002. At the end of the examination in chief of Alexkor’s first witness, the commissioner duly apprised the applicant of his right to cross-examination and the aim and purpose of the exercise. Thus, he said:

“Goed, dit is nou u geleentheid vir kruisverhoor. Die doel van kruisverhoor is nou maar net in kort om, sou u verskil met die getuienis wat die getuie, mnr Williams, gelewer het, om dan nou met hom te stry. Dit is u geleentheid om sy getuienis, die getuienis waar u nou verskil daarmee in dispuut te plaas…….


As hy iets uitgelaat het…… wat u saak kan bevorder, kan u dit by hom ontlok. As hy nie die waarheid praat nie, moet u vir hom se luister, hier en hier jok jy, en om hierdie redes jok jy. U moet ook stellings aan hom maak wat u weergawe van die saak is. Met ander woorde as jy nou getuig het u wou nie deelgeneem het nie en u wou egter deelgeneem het, kan u vir hom se man ek stel dit aan jou, ek wou deelgeneem het, ek het gese ek wil deelneem en jy het my nie toegelaat om byvoorbeeld in argument, dat hy daarrop kan reageer. Enigiets wat u nie met die getuie wil stry nie, kan ek aanvaar hy praat die waarheid en kan ek sy getuienis dan nou as sodanig aanvaar. U moet een vraag op ‘n slag vra en hom kans gee om te antwoord voordat u die volgende vraag vra. U verstaan dit ne?


  1. On the strength of this full explication of his rights in cross-examination, the applicant proceeded to cross-examine all the witnesses called by Alexkor during which he endeavoured to put his version of the events to them, and in effect indicated clearly that his version differed materially from Alexkor’s, particularly in that it offered some justification for his conduct; and indeed that he had not refused to obey instructions.




  1. At the conclusion of Alexkor’s case the commissioner again gave directions to the applicant on how to proceed. But this time he was somewhat less conscientious. The interchange between them proceeded as follows:





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