Leleka v Lesotho Highlands Project Contractors and Another (LC 5 of 95) [1995] LSLC 13 (11 August 1995)

IN THE LAB O U R COU R T OF LES O T H O CA S E NO. LC/5/95 HELD AT MA S E R U IN THE MATT E R OF: SE B O L O K I LELE K A APPLI C A N T AND LES O T H O HIG H L A N D S PROJ E C T CONT R A C T O R S 1ST RE S P O N D E N T D. P. DAR C Y 2ND RE S P O N D E N T JUD G M E N T The applicant herein was employed by the 1st respondent as a Mechanic helper working in the tunnel at one of the respondent's construction sites. It appears that it was a practice that every morning the Tunnel Boring Machine (TBM) had to be checked and repaired if necessary. On the morning of 18/05/94 the Shift Mechanic Mr. Du Toit was instructed by Mr. Eisendle the General Foreman to attend to certain parts of the TBM that required servicing before it could start to function. Mr. Du Toit says he was given plus/minus six jobs to do on the TBM. According to the evidence of Mr. Eisendle, it is Mr. Du Toit's duty to change the TBM cutter every morning. It is also Mr. Leleka's duty to help Mr. Du Toit in this work. One of the plus/minus six jobs that Du Toit had been given on the morning of 18/05/94 was to change the cutter. Du Toit asked the applicant to take the probe drill rods out of the brackets, which he did. Thereafter he asked him to help the welder to install new brackets for probe drill rods. The applicant said something is Sesotho, which Du Toit says though he did not understand it, it seemed to him like a negative comment. Du Toit went back to the cutter head where he was replacing the cutter. The evidence of the Storekeeper Mr. Khanare is that, the applicant came to collect his tools and when he left he told him to tell anybody who asked about him that he had gone to the Carlifonia. After about one and half hours the Chief Foreman asked the Shift Mechanic where the applicant was. He told him that he had instructed him to assist the welder. It is not clear whether the General Foreman enquired about applicant's whereabouts because he had noticed that he was not doing the work or because he had received any information. He however, went to ask the storekeeper where the applicant was and the storekeeper told him he was at the Carlifonia. He instructed the storekeeper to fetch him. When the applicant arrived the General Foreman ordered him out of the tunnel because he was refusing to obey the instructions of his foreman Mr. Du Toit. The applicant was subsequently disciplinarily charged with insubordination. The enquiry was presided over by one Mr. Soriteau. He was found guilty and dismissed on the 30th May, 1994. The applicant immediately launched an appeal on the grounds that the procedure followed was not correct and that the evidence of his witnesses was not accepted. The Chairman of the appeal Mr. Otto dismissed the appeal without hearing the applicant, in the following words: "Considering the previous warnings and also the final written warning I can only agree with the conclusion of Mr. Soriteau." This decision is recorded at the bottom of the applicant's appeal form. At the top of this form, the following minute is recorded: "I Otto approached by union official Mabaso to again have hearing - previous one not fair. Otto had looked at previous proceedings and decided to grant the request. Re-hearing to be held at 10h00 on 21/06/94." Indeed a complete rehearing of the matter was held on 21st June as recorded. Mr. Leleka's version however, is that, after his appeal was dismissed, he immediately indicated that he was launching a further appeal. Mr. Otto reacted by telling him to wait outside as they were going to consult. He does not say with whom Mr. Otto was going to consult. He says further that in the afternoon he was called and told that his appeal was going to be heard the following day. Mr. Leleka argued that if Mr. Otto was going to rehear the matter he should have referred it back to Mr. Soriteau as it is provided in Clause 6.7 of the Recognition Agreement. Clause 6.7 deals with the right of appeal. At the end it has a note to the effect that it is not necessary for an appeal to re-hear the case. In our view this is a permissive clause, it is not mandatory. This means that if the chairman of the appeal desires to re-hear the case he or she may do so, but he is not obliged. There is, however, a mandatory provision which reads as follows: "the case must be referred to the original chairman if fresh evidence is produced which could alter the initial decision." It appears to us that the purport of this provision is that if new evidence that was not heard by the original chairman is produced, and which was likely to have influenced the outcome of the decision at the original hearing if it was heard, the case should be referred back so that the original chairman can hear such evidence and apply his mind to it. It does seem that this was a case where referral to the original chairman was appropriate. We must however note that the chairman of the appeal reheard the matter at the request of the applicant's representative, who was a union official. Furthermore, it seems to us that though couched in mandatory terms, failure to follow this provision of the agreement is not detrimental to the applicant's case. After all he still had a chance of further appeal. We are therefore of the view that the failure of the chairman of the appeal to refer the hearing of the evidence to the original chairman does not nullify the proceedings. He was requested by the applicant to rehear the case and he used his discretion to rehear it. In our view the applicant is estopped from raising the objection. The applicant contended that he had given two grounds of appeal but the chairman of the appeal board only considered one ground concerning the witnesses. He went further to say he left another one concerning the procedure followed at the initial hearing. The appeal form does show that the applicant had two grounds of appeal. It has been held that the rule that defects in a hearing cannot be cured by a proper appeal is not of universal application. In Adam & Others .v. Protea Industrial Chemicals (1994) 5 (4) SALLR 23, it was held that the test is whether the taint of the disciplinary hearing was carried forward to the appeal. It seems to us that the applicant has not specified the procedural defects that he complains about in the original hearing. We are thus not able to make a finding whether they have carried forward to the appeal. The applicant was, however, explicit as regards the issue of witnesses. This defect was cured as the chairman of the appeal board acceded to the request of the applicant's representative that the case be reheard. He allowed evidence of witnesses from both sides to be heard after which he made a decision. This was in our view a complete rehearing of the case and not an appeal on the limited aspects of the grounds of the appeal. We are of the view that in the circumstances the defect in the original hearing was cured. The applicant further contended that there was a traversity of justice in that just like the chairman of the original hearing, the chairman of the appeal studied his record file even before he could find him guilty. He submitted that his conviction and dismissal was as a result of his record having been studied in advance. The record of the disciplinary proceedings does support this contention. The objection by the applicant's representative that the chairman should not study the applicant's record appears on the last page of the record of proceedings, which shows that the file was studied after the closure of the case. It is, however, significant that no finding had been made by the chairman at the time that he was warned not to study the applicant's previous record before deciding on his guilt. The chairman's response also confirms this contention. His answer to the objection was as follows: "I am reading these things because I am trying to get the reasons why Leleka did some of the things as they seem to have a link. I am following the right procedure by reflecting back to his file as it is stated in the agreement made between CAWULE and LHPC which clearly states that reference can be made on previous offences when decisions of an appeal hearing are made." Clause 6.5 of the Recognition Agreement provides: "disciplinary action taken for an offence will depend upon the nature of the offence and should take account of any other offences, which may have occurred previously. Reference should be made to the offender's previous record once the decision had been taken that the offender is guilty." (emphasis added) This clause is very clear that reference is not made to the previous record in order to determine the guilt of the accused person as the chairman seemed to suggest in his above quoted answer. The guilt must first be determined and reference will only be made to the previous record in order to determine the type of penalty to be imposed. It is common cause that initially, the chairman dismissed the applicant's appeal after studying his previous record. When he was requested to rehear the matter he acceded to the request. He therefore entered into the appeal with an informed mind as to what type of a person the applicant is. It is admitted that in the employment situation, it is difficult to find a chairman of a disciplinary enquiry who is wholly ignorant of the past history of an accused employee. (See E. Cameron, The Right to A Hearing Before Dismissal - Part 1 (1986) 7 ILJ 183 at page 212). It is however, significant that the chairman must keep an open mind and desist from doing things that are likely to compromise his impartiality. (See Lepheana .v. LHPC LC/5/94 (unreported) at page 3). In our view the chairman's initial dismissal of the appeal on the basis of the applicant's previous record impaired his independence and he should not have again agreed to preside over the rehearing. His reference to the previous record of the applicant even before deciding on the basis of the evidence before him whether the applicant was guilty or not shows that he was heavily influenced by his knowledge of the applicant's previous history. This was not proper. In his decision, the chairman states that he found the applicant guilty on the basis of the evidence given by the witnesses. It is not clear why he believed the complainant's witnesses and not those of the applicant. The type of penalty he imposed was influenced by the applicant's previous warnings and a final warning which the applicant had in his record. It seems that in the light of the chairman's knowledge of these warnings, the dismissal of the applicant was a fait accompli. He did not take into account the fact that the complainant was a first offender in so far as insubordination is concerned. It has been held that in the light of the chairman's knowledge of these warnings, the dismissal of the applicant was a fait accompli. He did not take into account the fact that the complainant was a first offender in so far as insubordination is concerned. It has been held that for a warning to be of relevance to the type of penalty to be imposed on the offender, it must be related to the offence with which the offender is charged. Warnings issued for unrelated offences should not be taken into account. (See Ntaole Pae .v. Maluti Mountain Brewery Case No. LC/13/94 (unreported); National Union of Mineworkers & Another .v. East Rant Proprietary Mines LTD (1987) 8 ILJ 315; SACCAWU and None .v. Checkers SA LTD (1994) 5 (4) SALLR (not yet reported). It is common cause that all the three warnings against the applicant including the final warning were for unrelated offences, namely, absenteeism. They should therefore not have been taken into account. The applicant had contended further that he had not been given an opportunity to be heard. We have not gone into this submission as it is baseless. The applicant was given full opportunity to state his case. What is in issue is whether the hearing and the outcome thereof were fair. We are of the view that the fairness of the proceedings was tainted by the chairman of the appeal board's partial mind at the time of making the decision. He impaired his independence by studying the applicant's previous record before deciding on the basis of the evidence before him whether the applicant was guilty or not. Mr. Vorster for the respondents contended that even if the procedure may be found to have been improper, the applicant's insubordination should be found to be of greater importance than the respondent's minor deviations from the correct procedure of conducting the hearing. If the penalty imposed on the applicant had not been an ultimate penalty there could be merit in this argument. The view of the Court is that the chairman's prior knowledge of the applicant's history was one of the strongest contributing factors to the penalty he imposed. Secondly by the chairman's own admission he relied on previous warnings for unrelated offences to one with which applicant was charged. He was a first offender in so far as insubordination is concerned. The dismissal was therefore not an appropriate penalty in the circumstances of this case. AWARD The applicant has not filled paragraph 4 of the originating application in which he had to state the nature of the relief he seeks. Under paragraph 3.2 of his originating application he has submitted that he regards termination of his contract as unlawful and unfair. We accordingly declare that his dismissal on or around 01/06/96 by the respondents is an unfair dismissal. Mr. Vorster argued in his submissions that even if the Court finds in applicant's favour, his position is no longer available with the respondent. The applicant had not in any event asked for reinstatement. Mr. Vorster further stated that the Court should take note of the fact that the applicant is already employed elsewhere. The applicant never denied this. In the premises we infer that the applicant is not interested in reinstatement. The Court will therefore fix the amount of compensation to be paid to the applicant in lieu of reinstatement, in terms of Section 70 (2) of the Code. It is not clear what benefits were paid to the applicant at the time of termination. We are therefore not in a position to order payment of terminal benefits. We accordingly award the applicant monetary compensation as follows: Since the applicant is already employed, the Court is of the view that payment of 3 months' salary calculated at the rate of the salary the applicant was earning at the time of dismissal will adequately compensate him for the unfair dismissal. The respondent is accordingly ordered to pay the applicant compensation of 3 months salary calculated at the rate of applicant's earnings at the time of dismissal. There is no order as to costs. THU S DONE AT MA S E R U THI S 11TH DAY OF AUG U S T, 1995. L. A. LETH O B A N E PRE S I D E N T A. T. KOL O B E I CON C U R ME M B E R M. KA N E ME M B E R I CON C U R