South Africa: Labour Court

Consol Ltd v Kanjee and Others (JR1118/05) [2007] ZALC 139; (2008) 29 ILJ 1474 (LC) (11 December 2007)

3. The first respondent was employed by the applicant as a group risk benefits manager on 5 October 2001. On 15 March 2004 she was dismissed after a disciplinary enquiry was held in essence for fraud. On or about 31 March 2004 she referred a dispute to the second respondent, the National Bargaining Council for the Chemical Industry (the Bargaining Council) for con-arbitration. On 22 June 2005 the first respondent filed a request for arbitration. The matter was enrolled for arbitration on 30 August 2004, which arbitration was postponed to 16 November 2004.

4. On 4 January 2005 the applicant served a formal notification in terms of Rule 20(2) of the rules of the Bargaining Council requesting the first respondent to attend a pre-arbitration conference on either 26 or 27 January 2005. On 25 January 2005 the parties agreed that until the pre-arbitration meeting had been convened, the matter would not be enrolled for arbitration. The parties agreed to hold a pre-arbitration meeting. It was convened on 16 March 2005 at the offices of the first respondent’s attorneys of record. The applicant requested to know on what basis the first respondent contended that her dismissal was procedurally and substantively unfair. The first respondent’s response was that there is no obligation upon her to provide this particularity. It was the first respondent’s view that it was sufficient to provide the applicant and the Bargaining Council with the following response:

“The procedural and substantive unfairness of the dismissal and the appropriate relief to which the Applicant may be entitled....”

5. It was then recorded at the pre-arbitration meeting that the first respondent’s refusal to provide better particulars would be dealt with as a preliminary issue (the application for further and better particulars”). The parties did not agree at which stage of the proceedings the applicant’s application for further and better particulars would be dealt with.

6. The matter was enrolled for arbitration on 11 April 2005. The commissioner was appointed to hear the matter. On 30 March 2005 the applicant’s attorneys sent the Bargaining Council a letter suggesting that the applicant intended to raise the application for further and better particulars as a preliminary point on 11 April 2005. A letter was subsequently received from the first respondent’s attorney enclosing a copy of the pre-arbitration minute and requesting that the matter on 11 April 2005 be postponed to a more convenient time. The applicant in response to the letter on 31 March 2005 consented to the postponement in terms of Rule 20(1) read with Rule 20(2) and indicated to the first respondent that having regard to the set down of the matter that it would be in the interests of both parties to resolve the outstanding request for better particulars on 11 April 2005 instead of simply postponing the matter. The applicant also provided the first applicant with a further opportunity to provide better particulars by Tuesday, 5 April 2005 failing which the applicant would argue the request for further particulars. The first respondent refused to provide the requested particulars. Another letter was forwarded to the first respondent on 18 April 2005 for better particulars that was refused.

The proceedings before the commissioner

7. On 11 April 2005 without affording the applicant and the first respondent an opportunity to make any submissions in support of its application for further and better particulars and in opposition thereto, the commissioner dismissed the application. The commissioner informed the applicant’s attorney that the application for further and better particulars was without merit. When he requested an opportunity to make oral submissions in support of the application, the commissioner informed him that the application had been considered by her and that it was dismissed. The commissioner stated that having regard to section 192 of the Labour Relations Act 66 of 1995 (the Act) there was no basis upon which the applicant could seek further particulars since the applicant had the onus to prove the fairness of the dismissal. The commissioner than wanted the applicant to proceed with the arbitration. The applicant informed the commissioner that it could not do so and that it was legally represented. The commissioner asked why the applicant sought to be legally represented and that she saw no reason why the matter could not proceed. The commissioner raised the same issue with the first respondent. The matter was then postponed.

8. In a written ruling dated 13 April 2005 the commissioner stated that in terms of section 192 of the Act that once the employee had established the existence of the dismissal, the employer had to prove that the dismissal was fair. There was therefore no reason for the first respondent to be required to provide any documents or any statement of case to the applicant. The commissioner ordered the applicant to pay the costs of the Bargaining Council and the cost of the first respondent in attending the hearing on 11 April 2005. This was due to the surfeit of legal technicalities and unnecessary delays from the applicant’s side.

The grounds of review

9. The applicant has raised several grounds of review but confined itself to the following grounds when the matter was argued:

9.1. The commissioner committed a gross irregularity, alternatively, a serious irregularity, alternatively acted unreasonably or exceeded her powers in that she did not consider and give the parties any opportunity on 11 April 2005 to be heard and/or ignored relevant issues of the law that were material to the application for further and better particulars and/or she came to a finding that was grossly unjustifiable.

9.2 The commissioner failed to apply her mind to the issues before her and acted arbitrarily and/or capriciously.

Analysis of the facts and arguments raised

10. It is common cause that the first respondent referred an unfair dismissal dispute to the Bargaining Council for arbitration. The arbitration is pending before the Bargaining Council. The first respondent contends that her dismissal by the applicant was both substantively and procedurally unfair. The parties met at a pre-arbitration meeting in an attempt to narrow the issues. The issue that the commissioner was required to decide is recorded as:

“The procedural and substantive fairness of the dismissal and if appropriate, the relief to which the Applicant may be entitled, if any, and costs”.

11. The applicant requested further particulars from the first respondent that she refused to provide. The parties then agreed that the commissioner would be required to resolve the following point in limine:

“12. RESOLUTION OF POINTS IN LIMINE

12.1 The Respondent has requested the basis on which the Applicant contends that the dismissal is procedurally and substantively unfair.

12.2 The Applicant contends that there is no obligation upon the Applicant to provide this particularity.”

12. The matter was set down for arbitration on 11 April 2005. However the parties had agreed that only the point in limine would have to be dealt with and that the matter would be postponed. Both parties appeared at the arbitration and were represented by attorneys. The point in limine was dismissed and the applicant stated that it was unable to proceed with the arbitration as it had not prepared witnesses for arbitration. The commissioner then issued the ruling that is now being reviewed.

13. The applicant’s first ground of review is that the commissioner did not afford it and the first respondent an opportunity to address her. In other words the audi alteram partem principle was not followed. This is common cause. There is substance in the first ground of review. It is not so much whether the commissioner had adopted a robust approach when it dealt with the matter but whether the audi alteram partem principle was followed. I accept that commissioners are given wide powers to deal with disputes as long as they act fairly to both sides. The position is different where the commissioner is called upon to decide a preliminary issue. Both parties should be given an opportunity to address the commissioner before the commissioner makes a ruling. The commissioner also made a cost order against the applicant without having allowed the applicant to make any submissions on this issue. The commissioner has therefore committed a reviewable irregularity.

14. The commissioner’s ruling stands to be set aside on the basis of her failure to allow the parties to address her before she made the ruling. This would include the cost order that the commissioner made against the applicant. The commissioner in her haste to deal with the matter did not apply her mind correctly on the issue of costs. The parties had agreed that the point in limine was going to be dealt with in the first place and that the arbitration on the merits would proceed at a later stage.

15. This brings me to the application for better and further particulars. The applicant had requested that should I review and set aside the commissioner’s ruling that I deal with the matter myself. The arguments that would have been raised with the commissioner about the further and better particulars are before me. No purpose would therefore be served to refer the dispute to the Bargaining Council for determination of the preliminary issue.

16. The applicant’s view is that to limit the issues as is intended by the convening of a pre-arbitration meeting that the first respondent must give it the basis upon which she alleges that her dismissal was unfair. The response provided by the first respondent was not sufficient and patently negated one of the primary objects a pre-arbitration meeting (i.e. to narrow issues) nugatory. The applicant stated that while it has an idea what the first respondent’s case was at the disciplinary enquiry, it is hardly clear to the applicant at that stage on what basis and more particularly subsequent to the applicant’s two rulings (i.e. the one in the initial enquiry and the second on appeal) on what basis the first respondent actually challenges the substantive fairness of her dismissal before the arbitration under the auspices of the Bargaining Council. The applicant has the right to know by way of further particulars whether or not the first applicant is challenging the existence of a rule or standard of relevance to the workplace, if not whether the rule was valid or reasonable, whether the employee claims to be aware or not of the rule, whether consistency is in issue and whether the employee challenges the appropriateness of the sanction and on what grounds. Also the applicant has absolutely no idea what case it has to meet regarding the challenge of alleged procedural unfairness.

17. The applicant, as an employer, bears the onus to prove that the dismissal was fair. Pre-arbitration meetings are designed to narrow the issue. It would allow a party to know what the actual challenge is and would prevent a party to be caught off guard. It is common cause that the parties held a pre-arbitration meeting where the common cause facts and facts in dispute were set out. The parties agreed what issue the commissioner had to decide. The applicant then requested the first respondent to provide further and better particulars. The Bargaining Council rules do not make provision for further and better particulars. There are no pleadings before the CCMA or Bargaining Councils. The ideal off course would have been to provide for such particulars. Commissioners are given wide powers when dealing with such dispute. They must be dealt with the least of formalities. Commissioners often use a robust approach when dealing with such disputes as long as they act fairly and consistently with both parties. Very often parties are required to present an opening address. This would notify the commissioner what the dispute is about, what the defences is and what the issues is. Most commissioners would from this be able to narrow down the issues and get the parties to agree on what the real issues are.

18. The fact that the first respondent has stated that she is under no obligation to give the applicant particularity about why she contends that her dismissal was procedurally and substantively unfair does not mean that the commissioner cannot get clarity on that issue at the hearing. She can request the parties to make an opening address where the issues can be further narrowed. Where it later turns out that one of the party’s defence or conduct was frivolous an appropriate cost’s order can be made against that party.

19. The applicant has alluded to in it founding affidavit that it did not dispute that having regard to section 192 of the Act that there was no basis upon which the applicant could seek further particularity since it had the onus to prove the fairness of the dismissal. It contended however that this was not the issue that the commissioner was required to decide but whether the first respondent had an obligation at the pre-arbitration meeting in an attempt to narrow the issues to inform the applicant what her challenge was with respect to the alleged unfairness of her dismissal. There is in my view no such obligation on the first respondent to have provided for those particulars. It was the applicant who dismissed the first respondent in the first place and should prove that the dismissal was substantively fair.

20. It is therefore my finding that there is no legal basis for the first respondent to provide further details. Ideally she should do so but this is an issue that can be cleared up by the commissioner who will hear the matter during the opening address. The application for further and better particulars is therefore dismissed.

21. I do not believe that this is a matter where costs should follow the result. An appropriate order is that each party should pay its own costs.

22. In the circumstances I make the following order:

22.1 The ruling made by the commissioner on 14 April 2005 under case number GPCHEM229 is reviewed and set aside.

22.2 The applicant’s request for further and better particulars is dismissed.

22.3 The dispute is referred to the Bargaining Council for arbitration before another commissioner other than the third respondent.

22.4 Each party is to pay its own costs.

FRANCIS J

JUDGE OF THE LABOUR COURT OF SOUTH AFRICA

FOR THE APPLICANT : F A BODA INSTRUCTED BY DENEYS REITZ INC

FOR FIRST RESPONDENT : M WELZ INSTRUCTED BY WRIGHT ROSE-INNES ATTORNEYS

DATE OF HEARING : 4 DECEMBER 2007

DATE OF JUDGMENT : 11 DECEMBER 2007