Essence

Key aspects of the employee’s case were not put to witnesses in cross-examination and were not canvassed during the evidence of those witnesses in chief and so their versions were not placed before the commissioner. So the commissioner was unable to determine the issue in the manner required.

Judgment

Num v CCMA (Rustenburg Platinum Mines Ltd)  (JA43/2017) [2017] ZALAC 73 (28 November 2017).  Disallowed the union’s appeal and upheld the labour court’s judgment (Wilken AJ), meaning that the alleged unfair dismissal dispute has to be sent back to the CCMA for a fresh hearing and award.

Judges

Kate Savage AJA (Tlaletsi DJP concurring) and Ndlovu JA dying after the appeal was heard

Significance

Discussion by GilesFiles
Court summary

Employee dismissed for assault of his shift supervisor. At arbitration the commissioner found the dismissal substantively unfair and awarded re-employment.

The Labour Court on review found that the arbitration award was unreasonable and remitted the matter back for re-hearing before another commissioner.

The employee and his union appealed the judgment. On appeal found that Labour Court did not err in remitting the matter to the CCMA.

Appeal dismissed with costs.

Quotations from judgment

Introduction

[1] This is an appeal against the judgment of the Labour Court (Wilken AJ), with the leave of that Court, in terms of which the arbitration award of the second respondent, the commissioner, was set aside and the unfair dismissal dispute of the second appellant, Mr M M Mwachanda (the employee), was referred back to the first respondent, the Commission for Conciliation, Mediation and Arbitration (the CCMA), for re-hearing at the earliest possible opportunity before a different commissioner.[2] Prior to his untimely death, our colleague Ndlovu JA was engaged with the writing of this judgment. His death accounts for the delay in the delivery of this judgment in this matter, for which this Court sincerely apologises.[3] At the outset of the hearing, and without objection from the third respondent, Rustenburg Platinum Mines Ltd (the employer), the appeal was reinstated. This followed the appellants’ failure to file the record within the time periods prescribed in Rule 5(8) of the Rules of the Labour Appeal Court.[4] The background to the matter is as follows. The employee was dismissed, following a disciplinary hearing, for the assault of his shift supervisor, Mr Petrus Muller; failing to work according to established standards and procedures in omitting to report a machine breakdown; and insulting and/or abusive language. This followed a dispute, which arose between the employee and Mr Muller during the night shift on 6 August 2009. While it was not in dispute that the employee swore at Mr Muller, the employee stated that Mr Muller then hit him in the face in the presence of another employee, Mr Benny Stander. Both Mr Muller and Mr Stander denied this and stated that Mr Muller responded by repeatedly saying “thank you” to the employee. Their evidence was that the employee attempted to hit Mr Muller, first with a pinch bar, then with a long steel pole and finally with an 8-pound hammer. Although the employee admitted having struck Mr Muller with the steel pole, he claimed to have acted in self-defence.[5] Mr Muller, at his own disciplinary hearing, was found to have committed assault but was not found to have made racially offensive remarks to the employee. On appeal, Mr Muller’s behaviour was stated to be “unacceptable” but he was not dismissed from employment.

. . . . .

[14] From the record, it is apparent that the Labour Court correctly determined that the allegation of racial abuse had not been put to the employer’s witnesses in cross-examination. The purpose of a proper cross-examination is to place a one-sided version, which often results from examination-in-chief, into proper perspective by eliciting facts which place a different complexion on the matter, or by demonstrating that the witness is untruthful. In eliciting from an opposing witness facts which are beneficial to the case of the cross-examiner’s client and to put such client’s opposing and contradictory version to the witness, the decision-maker is placed in a position which permits evidence to be properly and appropriately assessed.[10] Since key aspects of the employee’s case were not put to the employer’s witnesses in cross-examination, and had not been canvassed in the evidence of those witnesses in chief, their version on such aspects was not placed before the commissioner. The result was that the commissioner was unable to determine the issue before him in the manner required.[15] For this reason too, the Labour Court cannot be faulted for finding that the award was not one that a reasonable commissioner could reach on all the material before him. There remained key issues which required determination by the commissioner in the appropriate manner. In setting the arbitration award aside and referring the matter back to the CCMA for hearing before another commissioner at the earliest possible opportunity, the Labour Court approached the matter in the manner required of it.[16] It follows that the appeal cannot succeed and there is no reason in law or fairness as to why costs should not follow the result.