IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG				                    CASE NO: JR2178/05

In the matter between:

VODACOM SERVICE PROVIDER COMPANY (PTY) LTD			         Applicant

and

PHALA, M								          First Respondent

THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION				     Second Respondent

ALLISON BETH KALAOUOV					        Third Respondent

	JUDGMENT

FRANCIS J

Introduction

1.	This is an application to review and set aside an arbitration award made by the first respondent (the commissioner) on 15 July 2004 under case number GA34464/04.

2.	The review application was opposed by the third respondent.

The background facts

3.	The third respondent is a woman who  was employed by the applicant on 1 February 2000 as a claims administrator.  On 13 August 2004 she was suspended after some male employees had complained that she had sexually harassed them for  more than six months from February to August 2004.  She was charged with sexual harassment and appeared at a disciplinary enquiry on 17 August 2004.  She was found guilty and dismissed.  She referred an unfair dismissal dispute to the second respondent (the CCMA) for conciliation and arbitration.  

4.	The applicant called four witnesses on its behalf at the arbitration hearing.  A bundle of documents which included the record of the disciplinary hearing was also handed in during the arbitration proceedings.  Three of the witnesses were the complainants and the fourth one was the initiator of the disciplinary hearing.   I do not deem it necessary to repeat all the evidence led.  The three witnesses testified that they were employed by Kelly’s and performed duties at the applicant on a temporary basis.  The third respondent was their supervisor and she sexually harassed them over a period of six months.  She had exposed her artificial breast to them; called them to her office where she had wanted to measure the size of their penises; pinched their bottoms when they walked passed her; grabbed one of them on his crotch and tried to pull off his belt; grabbed one of their cellular telephone, placed it under her skirt, took a picture of her private parts and showed it to one of them.  Evidence was led that the applicant has a Sexual Harassment policy. 

5.	The third respondent testified in her defence and called a witness.  She denied that she had sexually harassed the employees or touched their private parts.  She admitted that she had told the temporary employees that she would measure their private parts and this was in the context of employees giggling in the passage with one Michelle Payne who had a measuring tape.  They were discussing who had the biggest penis.  The third respondent admitted exposing her artificial breast in the office but did so when employees had asked to see it as she had a mastectomy and it was her way of dealing with it.  She testified that she was not given an opportunity to present her side of her story and that the chairperson of the disciplinary enquiry was biased.  Her witness blamed Payne for the measuring incident  which prompted the third respondent to step in.  Her witness said that the whole incident was unacceptable.

6.	It is not clear from the award whether the commissioner found that the third respondent was guilty of the charges levelled against her.  It appears that she was found guilty of having exposed her artificial breast to the employees.  Again this might be speculation.  The commissioner said that the third respondent could be found to have been at fault in the incident relating to the exposure of her artificial breast.  The commissioner found that there was a mitigating factor and that dismissal for this incident was not an appropriate sanction.  The commissioner found that the applicant had failed to lead sufficient evidence to show that dismissal was a justifiable sanction.  He then ordered her reinstatement with six months accrued remuneration amounting to R120 000.00.

The grounds of review
7.	The applicant has raised the following grounds of review:

7.1	The commissioner committed a gross irregularity in the manner in which he conducted the arbitration.  In particular, he asked questions which renders his finding a gross irregularity and a reviewable defect.

7.2	The commissioner erred in his approach to the facts that were in dispute before him.  These facts included the allegations that the third respondent touched the complainants inappropriately and that she lifted her skirt, and took a photograph with a cellular telephone under her skirt.  The way in which the commissioner reached his conclusions regarding these facts was irrational and therefore reviewable.

7.3	The commissioner committed a reviewable irregularity in his approach to the facts that were common cause before him.  These facts included the allegations regarding the applicant barring her breast in the workplace to the complainants, and other employees, and the incident when she lined up the young temporary employees  and told them that she would measure their penises.  His conclusion is irrational and therefore reviewable. 

7.4	The commissioner committed a gross irregularity in the conduct of the arbitration in that he failed to discharge his responsibility as a commissioner to resolve the irreconcilable versions, by failing to make findings on first the credibility of the various factual witnesses, secondly their reliability, and thirdly, the probabilities. 

Was there a need for the third respondent to apply for condonation?

8.	The applicant contended that the third respondent has failed to file her answering affidavit timeously and failed to comply with the Court’s direction on the filing of heads of arguments.  Further that the third respondent had not applied for condonation for failing to comply with the Court’s directions and no explanation was given for this and that the matter should proceed on an unopposed basis.

9.	It is completely unacceptable that the third respondent has failed to comply with a direction from this Court to file her heads of argument before the matter could be enroled for a hearing.  This is a worrisome practice that is growing where some parties simply ignore Court directions.  No party should be allowed to ignore directions issued by this Court.  A time will come where the defaulting party will be barred from participating in the proceedings before this Court.  This Court is also aware that some parties deliberately fail to comply with directions of this Court to frustrate a party that has complied.  In this matter no purpose would have been served either to have postponed the matter or called upon the third respondent to explain her failure to comply with the Court’s direction. This is so due to the conclusion that I have reached in the review application.

10.	In terms rule 7A(6) of the Rules of this Court (the Rules) an applicant must furnish the registrar and each party with a copy of the record or a portion of the record.  Once the applicant has filed a Rule 7A(8) notice the other party must within 10 days after receipt of the aforesaid notice file an answering affidavit.   It is common cause that the record filed by the applicant was an incomplete record in that it had many “indistincts” in it.  Another record was filed with slight improvements to it.  It is not clear when this record was filed.  The third respondent then filed her answering affidavit on 5 May 2006.  The record filed still contains many “indistincts”.  As a result of the poor record filed and the attempts made by the applicant to provide this Court with the best possible record, I am of the view that there was no need for the third respondent to have applied for condonation for the late filing of her answering affidavits.  Even if there was such a need, this review application can be dealt with purely on the record provided and on the applicant’s papers.  

Analysis of the facts and arguments raised
11.	This brings me to the first ground of review which is whether the commissioner committed a gross irregularity in the manner in which he conducted the arbitration proceedings.  In particular, it was alleged that he had asked questions which amounted to cross examination and is impermissible.

12.	In terms of section 138(1) of the Labour Relations Act 66 of 1995 (the Act), a commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order for him or her to decide the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.  Section 138(2) of the Act states that subject to the discretion of the commissioner as to the appropriate form of the proceedings, a party to the dispute may give evidence, call witnesses, question the witnesses of any other party, and address concluding arguments to the commissioner.

13.	A commissioner has a discretion about how the arbitration should be conducted.  A commissioner may decide to adopt an adversarial approach or an inquisitorial approach. In an inquisitorial approach the commissioner is in control of the process.  The commissioner plays a more active role in the hearing, calling witnesses and interrogating them to ascertain the truth.  The commissioner cannot abandon the well-established rules of natural justice and must be careful to guard against creating a suspicion of bias.  In this regard see Mutual & Federal Insurance Co Ltd v CCMA & Others [1997] 12 BLLR 1610 (LC) at 1619 - 20 and County Fair Foods (Pty) Ltd v Theron NO & Others (2000) 21 ILJ 2649 (LC).

14.	Where the commissioner adopts the adversarial approach his role is much limited.  The  process is in the control of the parties.  The evidence adduced is that which the parties choose to present and the commissioner operates more like an umpire. The commissioner must manage the process and ensure that the laws of evidence are complied with.  The commissioner can intervene where irrelevant questions are asked, hearsay evidence been led or where the parties are not dealing with the issues that need to be decided.  The commissioner must make rulings on objections raised etc. The commissioner must stamp his or her authority in the hearing and must be guided by section 138(2) of the Act.

15.	A commissioner is required to conduct the proceedings in a fair, consistent and even handed manner.  A commissioner cannot assist or be seen to assist, one party to the detriment of the other.  A commissioner cannot put to witnesses his propositions, should not interrupt the witnesses’ answers, challenge the consistency of a witness with his own evidence, indicate that he doubted the witness’s credibility, or make submissions regarding the construction of evidence.

16.	The commissioner has in this matter clearly decided to adopt the adversarial approach.  Both parties were represented by legal representatives.  He should have been conscious of not entering the arena.  In the matter of Solomon & another NNO v De Waal 1972(1) SA 575 (A) Potgieter JA dealt with the intervention by a judge and descending into the arena of conflict between the parties.  Potgieter JA held at 580E-H that:

“A perusal of the record reveals that the learned trial Judge often and, unfortunately, quite unwarrantedly, intervened in the proceedings while defendants’ counsel was cross examining plaintiff’s witness and during the hearing of defendant’s case.   It is unnecessary to quote the numerous passages in question.  Suffice to say that during the hearing of the plaintiff’s case the learned Judge asked certain questions and made certain observations which reflected favourably upon plaintiff’s case and adversely upon the evidence that the defendant’s counsel asserted would be adduced for the defendants.  Furthermore during the hearing of the defendant’s case the learned Judge examined their witnesses in such a manner and made observations in the course thereof of such a nature as to evince his ostensible disbelief, or at any rate, his doubt about their credibility.  Those and other interventions by the learned Judge must have been most harassing of the defendant’s counsel, but fortunately he did not allow the actual presentation of defendant’s case to suffer thereby. However, by descending into the arena of the conflict of the parties in that manner the learned Judge might well have disabled himself from assessing with due impartiality the credibility of the witnesses, the probabilities relating to the issues, and the amount of damage sustained by the plaintiff.  Even if it were not so, such intervention might well have created the impression, at least in the mind of the defendants, that he had also disabled himself and that he was favouring or promoting the plaintiff’s cause and prejudicing the case against the defendant.  In that regard it must be born in mind that justice should not only be done but should manifestly and undoubtedly be seen to be done.”  
This dictum applies equally to commissioners.

17.	I have perused the transcript of the arbitration proceedings.  The record is full of examples of the commissioner questioning the applicant’s witnesses and in particular Mcleod, Patel and Wajoodeen in a way that essentially amounted to cross examination.  It is unnecessary to quote the numerous passages in question.  The first example appears from pages 119 - 129 of the arbitration record where he questioned Mcleod.  He had asked him about 82 questions.  The next example is that of Wajoodeen as reflected at pages 200 to 204 of the record.  When the commissioner was confronted about this by the applicant’s representative, he replied that he had the right to ask questions to clarify certain things.  He did the same with Patel as reflected at pages 240 to 242.  He did the same with the third respondent as reflected at pages 324 to 330 of the record.

18.	In addition to cross examining the witnesses the commissioner had questioned a witness in a manner which was improper and inappropriate and suggested to him that he had been told by another witness what to say.  This appears at pages 259 - 260 of the record:

“Now having had that discussion where somebody was guiding you, asking you questions, coaxing you into saying some other things, why did you make such a ....”.	
  
19.	I am satisfied that the commissioner clearly overstepped the boundaries of fair procedure in the conduct of arbitration proceedings.  His descent into the arena led to a reasonable apprehension by the applicant that he was partial.  I am satisfied that he has committed a gross irregularity.  Based on my findings of the irregularities set out above, I do not believe that the parties had a fair hearing before the commissioner.  It is not clear what evidence would have been adduced but for the commissioner’s conduct.  The application stands to be granted on this ground alone.

20.	This brings me to the other grounds of review which is about how the commissioner dealt with the evidence etc.  It is trite that a commissioner is required to give brief reasons for the award that he or she has made. In giving those reasons a commissioner must deal with the issues that arose and where there are conflicting versions, the commissioner must deal with it and indicate in the award which version is acceptable and which version is rejected.  The commissioner must also give reasons for arriving at a specific conclusion.  The Courts have given clear guidelines on how to deal with conflicting versions.  For example in Stellenbosch Farmers’ Winery Group Limited and Another v Martell Et Cie and Others 2003 (1) SA 11 (SCA) at page 13 paragraph 5, the test is formulated as follows:

“[5] On the central issue, as to what the parties actually decided, there are two irreconcilable versions.  So, too, on a number of peripheral areas of dispute which may have a bearing on the probabilities.  The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows.  To come to a conclusion on the dispute issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities.  As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness.  That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candor and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects on his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events.  As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a)(ii),(iv) and (v) above or (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof.  As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues.  In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it.  The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings, compel it in one direction and its evaluation of the general probabilities in another.  The more convincing the former, the less convincing will be the latter.  But when all factors are equipoised, probabilities prevail.”
This dictum applies equally to commissioners and trier of facts.

21.	The parties had concluded a pre-trial minute on or about 7 June 2005.  In it the issue that the commissioner was required to decide was whether the third respondent’s dismissal was both  procedurally and substantively fair.  It was contended that the dismissal was procedurally unfair in that amongst others that the disciplinary chairperson was biased; had prejudged the matter and was partial; the third respondent was not given sufficient time to prepare for the hearing and the chairperson failed to follow the basic disciplinary hearing procedures.

22.	It was further contended in the pre-trial minute that the dismissal was substantively unfair in that, amongst others that the third respondent’s guilt was not proved on a balance of probabilities; the disciplinary hearing chairperson overemphasised the applicant’s evidence while under-emphasised the third respondent’s evidence and the sexual harassment policy was inconsistently applied and practised by the applicant.

23.	The commissioner has summarised the evidence led at the arbitration proceedings. He has also recorded that the third respondent challenged both the substantive and procedural fairness of her dismissal.  It is also recorded on what grounds the dismissal was alleged to be procedurally unfair.  The commissioner has recorded the arguments presented by both parties.  

24.	It is clear from the award that the commissioner has not dealt with the issue of procedural fairness at all.  In failing to deal with this, the commissioner has committed a reviewable irregularity.

 25.	It is further not clear from the award whether the commissioner had found that the third respondent was guilty of sexual harassment or not. The commissioner said the following at paragraph 5.11 of the award:
“The only incident that the applicant (third respondent) could be found fault with in the exposure of the artificial breast.  However, there is also a mitigating factor.  It is my contention that on this issue solely dismissal could not be the appropriate sanction.  It is trite that a commissioner should not interfere with the sanction of the employer unless it induces shock and makes one to whistle.  This is a case in point.  It is therefore my finding that the respondent (applicant) failed to lead sufficient evidence to show that dismissal was a justifiable sanction.”  

26.	It is not clear from the aforesaid quoted passage whether in saying that the third respondent could be found fault with the exposure of the artificial breast meant that she was guilty of sexual harassment.  The commissioner has not stated what the mitigating factor was.  The commissioner appears to have contradicted himself with what is contained in paragraph 5.9 of the award where the commissioner had said that her conduct was unacceptable especially for a person in a senior position irrespective of the motive for such display.  The commissioner has not given reasons why dismissal was not an appropriate sanction for the exposure of the artificial breast. 

27.	The commissioner analysed the evidence in her award from paragraphs 5.6 to 5.11.  I do not deem it necessary to repeat it.  It is not clear whether the commissioner rejected the applicant’s witnesses evidence as false or accepted that of the third respondent as true.  The commissioner has not stated what conclusions he arrived at after analysing the evidence.

28.	I am therefore satisfied that the commissioner’s award is not justifiable and rationally connected to the evidence and the reasons given by the commissioner.  This ground of review also succeeds.

29.	The application stands to be granted.  

30.	I do not belief that this is a matter where costs should follow the result.  An appropriate order is not to award any costs.  

31.	In the circumstances I make the following order:

31.1	The arbitration award made by the first respondent on 15 July 2004 under case number GA34464/04 is reviewed and set aside.

32.2	The matter is referred to the second respondent for a hearing de novo by a commissioner other than the first respondent.

33.3	There is no order as to costs.

                     
FRANCIS J

JUDGE OF THE LABOUR COURT OF SOUTH AFRICA

FOR THE APPLICANT		:	N FOURIE INSTRUCTED BY BOWMAN GILFILLAN ATTORNEYS

FOR THIRD RESPONDENT	:	J MPHAHLANI INSTRUCTED BY LOKWE ATTORNEYS

DATE OF HEARING		:	1 FEBRUARY 2007

DATE OF JUDGMENT		:	7 MARCH 2007