CGM Industrial v Mathibeli and Another (LC/REV 8 of 8) [2009] LSLC 3 (12 March 2009)

IN THE LABOUR COURT OF LESOTHO LC/REV/08/08 HELD AT MASERU IN THE MATTER BETWEEN CGM INDUSTRIAL APPLICANT AND SHOESHOE MATHIBELI DDPR 1ST RESPONDENT 2ND RESPONDENT JUDGMENT 1. 2. 3. Date : 10/03/09 Review – The court will not interfere with an award on review if the complaining party is not prejudiced by the irregularity. This is a case in which the 1st respondent was dismissed for an alleged poor work performance in that she repeatedly failed to achieve set target. The matter came before the DDPR and was arbitrated by Arbitrator Masheane on the 15th November 2007. At the conclusion of the arbitration an award was handed down in which the dismissal of the 1st respondent was found to be unfair. The arbitrator noted that evidence showed that 1st respondent had been a good performer who had even been awarded with represents for good work. Problems started to emerge when she was assigned a new job. The period for which the 1st respondent was said to have failed to reach the target ran from 25/07/07 to 09/08/07. On the latter date she was charged with poor work performance and was dismissed. The arbitrator was of the view that despite the 1st respondent’s performance having been good in the past; “respondent (applicant herein) did not investigate into the reasons for the unsatisfactory performance. I find that a period of 14 days (12 days?) is not sufficient time to draw a conclusion that applicant was incapable. There is also no proof that applicant was given sufficient time to improve her performance. In the absence of supporting documentation I find that the respondent has failed to prove that applicant’s performance was poor and I find that the applicant’s dismissal is substantively unfair.” (p.4 of the award). The arbitrator went further to award that 1st respondent be reinstated and that she be paid M4767.75 in lost wages for the period that she was out of work. 4. The applicant filed an application for the review of that award on the following grounds: (i) (ii) (iii) The arbitrator failed to consider evidence before her and totally disregarded evidence that showed that 1st respondent was under-performing. Instead the arbitrator insisted on documentary proof on every issue raised. The learned arbitrator ventured into procedural fairness, an issue which 1st respondent was not disputing. I submit that the learned arbitrator did not understand how the factory works hence her statement “her line supervision was not sufficient to allow her to meet her performance standard.” 5. Following receipt of the record the applicant supplemented its grounds of review with the following two grounds: (i) Witnesses were not sworn which is highly irregular. (ii) The record does not reflect any argument by the parties regarding procedural fairness, however the arbitrator took it upon herself to make a declaration on it. This too is highly irregular. 6. On the date of hearing, Mr. Macheli rose to record that he was abandoning ground (iii) of the Founding Affidavit regarding whether the arbitrator understood how the factory worked. He also indicated that he was abandoning ground (i) of the 3 supplementary affidavit regarding whether witnesses were sworn. Since this was a matter of record, the court intervened and remarked that it will still be necessary for counsel for both sides to address that issue because ex facie the record one of the witnesses was not sworn even though in her award the arbitrator says the witness was sworn. Mr. Macheli for the applicant asked for a short adjournment to enable them to liaise with Mr. Serabele for the 1st respondent. Upon resumption Mr. Macheli indicated that they’ve reached an understanding that irrespective of which side’s witness was not sworn that has the effect of affecting the entire proceedings. He was withdrawing the ground because it was infact his (the employer’s) witness who was not sworn. After that understanding he was now seeking leave to reinstate that ground as one of the grounds once more. This was accepted without any objection from respondents. Mr. Macheli proceeded to state that it is clear from the record that the representative of the applicant at the arbitration was allowed to testify and was cross-examined without any oath being administered. He went on to say that the unsworn evidence of that witness is the one which has not been considered and that prejudiced his client’s case. He thus asked that the matter be remitted to the DDPR so that the evidence can be properly taken on oath. It is apposite at this stage to clarify what actually happened which led to the irregularity being complained about. When arbitration commenced the representatives of the parties made opening statements starting with the representative of the 1st respondent. Thereafter the representative of the applicant made his opening statement. At the end of the statement, the representative of the respondent cross-examined him. The arbitrator took no action to correct that irregular procedure. 7. 8. 9. 10. At the end of the cross-examination, the next witness for the applicant was called. This one was duly sworn by an affirmation and so was the 1st respondent herself when she testified. The representative of the applicant accordingly 4 tendered what was regarded as evidence without being sworn. The graveman of Mr. Macheli’s contention turned out to be that the arbitrator disregarded the evidence of this witness including documents that he handed in to the prejudice of his client’s case. 11. Mr. Serabele for the 1st respondent contended that if the evidence of this witness has not been considered it follows that the learned arbitrator was not influenced by it and therefore the applicant suffered no prejudice. The court enquired from Mr. Macheli how non-consideration of the evidence which was not taken on oath had prejudiced his client’s case. His response was if the witness had not been allowed to be cross-examined, may be the evidence he gave without oath including documents he handed in, would have been given by a properly sworn witness. That is sheer speculation. The same person could still have been intended to take the witness stand and testify on oath after his opening statement. This is confirmed by the documents in his possession which he readily handed out. It is clear that he was the witness intended to hand them in from the beginning. In our view this is a proper case where the principle laid down by the Appellate Division of South Africa in the case of Rajah & Rajah Ltd .v. Ventersdorp Municipality 1961(4) SA 402 (AD) should apply. In that case the respondent council had issued a trading licence for a non-existent company believing the company existed. At the time that the council realized the irregularity the company had come into being and was involved in precisely the same business it had applied for licence to trade in. The council applied to court to have the licence revoked. The court found that there was no evidence that the misinformation was deliberate and intended to mislead the council. The court found further that despite the irregularity neither the public interest which the council represented nor the council itself have suffered any prejudice. Consequently the court declined to interfere with the decision to grant the certificate; irregular as it was at the time it was granted. (see also Lerotholi 12. 13. 5 Polytechnic .c. Blandina Lisene LAC/CIV/A/05/08 at p.18 paragraph 27 of the typed judgment). 14. 15. In hoc casu, the evidence being sought to be brought on board, which counsel for the applicant says would have, if considered weighed the stakes in his favour, is the one which was taken irregularly by not being taken on oath. If the learned arbitrator did not consider that irregularly taken evidence surely neither the applicant nor the 1st respondent have suffered any prejudice. If it had been considered that would constitute a prejudice in as much as the award favouring either party would be based on irregularly obtained evidence. The complaining party namely; the applicant has suffered no prejudice by the non-consideration of that evidence. In the circumstances this court will not interfere with the award in this matter even though there was an irregularity because we are satisfied that the complaining party has suffered no prejudice. (See Lerotholi Polytechnic case supra at. p.18). Accordingly the review application cannot and succeed and the award of the DDPR dated 13th December 2007 is confirmed. There is no order as to costs. THUS DONE AT MASERU THIS 12th DAY OF MARCH 2009 L. A. LETHOBANE PRESIDENT L. MATELA MEMBER M. MOSEHLE MEMBER I CONCUR I CONCUR FOR APPLICANT: FOR RESPONDENT: MR. MACHELI MR. SERABELE 5