Arbitration costs awards are rare

Arbitration costs awards are rare

It’s rare for a winning party to win costs in a CCMA or Bargaining Council arbitration case.  Section 138(10) of the Labour Relations Act makes limited provision for costs to be awarded in favour of a party to an arbitration hearing.

In short, costs may be awarded against a party and/or their representative, in the event that either or both act frivolously (“manifestly futile”) and/or vexatiously (manifestly groundless or utterly hopeless in foundation”), which is defined as (1) proceeding with or defending a case without merit and (2) in its conduct during the proceedings.

So in short, if you initiate an arbitration case with little or no merits and/or behave badly during the arbitration hearing, a claim for costs may validly be made.  In practice however, costs awards, especially against applicants who are typically employees, are rarely made.

That’s not to say on the other hand that parties costs awards are never made; they certainly are at times, even if it seldom occurs.

In the past, the CCMA has issued a Practice Note to Commissioners regarding the awarding of costs, recommending that “Parties should not be discouraged from invoking the dispute mechanisms of the LRA, which should be accessible to parties; costs should not be lightly ordered if a party acts in good faith, especially where the matter involves issues of importance to the wider IR community; a costs award should not damage an ongoing relationship, and the conduct of the parties is relevant.

In the CCMA case of Mark Jeffrey Fuhr  v  Momentum Agency services (GAJB20761-07) the applicant had claimed constructive dismissal.  After a lengthy arbitration hearing wherein the applicant introduced hundreds of pages documentary evidence purportedly supporting his claim, the Commissioner held that his claim was indeed frivolous and vexatious, and that he did “not come to the Commission with clean hands” and that “he chose to put the Respondent to the cost of defending what I regard as a flimsy case in the hope of convincing the Commission to award him a large sum of money.”  The Commissioner concluded that the applicant had “failed dismally in discharging the onus on him to prove he was constructively dismissed.”

It was held further that the applicant’s main reason for resigning was a perceived better offer from an alternative employer, and not intolerable conduct on the part of the respondent.

In Rose Ramchau  v  Ackermans (NP856-01) the Commissioner awarded costs to the employer on grounds that the applicant “dragged the company to the CCMA for an utterly hopeless case … the services of this statutory body should be utilised for genuine disputes and never as a playing field for petty vindictive disputes  by parties bent on settling old scores”.

Similarly in Ntombela  v  SMT Health Solutions (KNDB10811-08)costs were awarded in favour of the employer on grounds that the applicant was “argumentative, evasive, and less than honest … and knew that his case was predicated on a lie”.

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CCMA should heed criticism

CCMA should heed criticism

The CCMA has been on the receiving end of some sharp criticism of late, which it has predictably elected to respond to defensively with a degree of self-righteous indignation.

Let me say up front, the very role of the CCMA in workplace dispute resolution places it in the invidious position of invariably being unpopular with one, or another party, in a dispute.  This more especially applies to arbitration hearings, which always produce a loser.

So the CCMA is, at times, subject to unfair, one-eyed and subjective criticism.

I have appeared as a representative of parties at the CCMA since its inception almost twenty years ago, and have done so in just about every CCMA branch and satellite office around the country.  That qualifies me to chip in on this debate.

There are, without a shadow of doubt, many highly qualified, competent and experienced CCMA Commissioners, who are committed to objectively dispensing justice in an even-handed manner. What’s more, they do so displaying the requite respect to parties, notwithstanding the frequent tension which is evident in most disputes they conciliate or arbitrate.

That’s not true of all Commissioners.  Whilst, in my view, the skill and competence levels of Commissioners are generally high or acceptable, there is a sprinkling of belligerent and ill-mannered Commissioners who know who they are, as do frequent users.

Has the CCMA responded to the recent criticism well?  Nope.

To begin with, it is highly unlikely that the CCMA leadership would have responded the way it did, had the criticism emanated from organized labour.

I also don’t buy the apparent responses, which seek to deflect blame for ineffective labour dispute resolution on employers and labour; the blame mongering doesn’t stop there either.

The CCMA Director also appears to be lamenting the “moving on” of the founding fathers of the current employment law regime, into business and politics.  It reminds me of the dead Month Python parrot which was apparently “pining for the fjords”.

Is it too much to expect of the CCMA that it maturely respond to criticism, without adopting a defensive stance, which simultaneously seeks to blame monger?

Surely a more measured, constructive and conciliatory response would have been more prudent? Indeed, perhaps the response which would probably have evolved had it emanated from a trade union and not an employer-linked representative?

I think that the CCMA leadership has, with its antagonistic response to recent criticism, shown the very subjective petulance, which it criticizes, CCMA users of on a daily basis.  What happened to the ‘conciliation’ in CCMA?

Yes, the CCMA may well be held up as an enviable model of workplace dispute from time to time in other jurisdictions.  However, before the CCMA leadership seeks to harness the plaudits for this, recognition should first and foremost be given to the core of competent CCMA Commissioners, not the defensive top floor bureaucrats.

The CCMA leadership has shot itself in the foot on this one.  The proverbial “own goal”.

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Attempted theft from employers is an unfortunate scourge

Attempted theft from employers is an unfortunate scourge

It is hard to argue with employers who frequently cynically lament that certain employees are so willing to so readily steal, or attempt to steal, from them.

There may indeed be a myriad of socio-economic reasons for this scourge.  None the less, it must surely be abhorrent, with employers being quite entitled to view such gross misconduct in a very serious light.

I know from my own experience in my own practice, that theft-related and dishonesty cases are quite common in the workplace.

The Labour Court recently dealt with such a case in the 4 August 2015 judgment in Massbuild (Pty) Ltd t/a Builder’ Warehouse v the CCMA & 2 others [JR1685.12].

The facts were quite straight forward.  The employee was routinely subjected to a search in a search cubicle, as is common practice in the retail industry.  During the course of conducting the search, in the presence of two security guards, the employee was found to have been in possession of an emergency cell phone charger in his bag, valued at approximately R100.00.

This charger was on sale at the store in question, and the employee had no proof of purchase.

The employee subsequently failed a polygraph test.

The employee was the charged with having been in unauthorized possession of the cell phone charger, and he was dismissed after having been found guilty.

The employee referred an unfair dismissal claim to the CCMA.  At the arbitration hearing.  The CCMA commissioner held that the dismissal was procedurally and substantively unfair, and the employee was awarded six months compensation.

The employer took the matter on review to the Labour Court.

The Labour Court judge concluded that “the commissioner failed to apply his mind” to various “materially relevant facts”.

This included the fact that the employee had signed a statement confirming that the charger had been found inside his bag during the security search, even though during the arbitration hearing, he had denied that he had been caught in possession of the charger.

The employee had also admitted this during the original disciplinary hearing.

The Judge held that the commissioner’s finding that the charger had not been found to have been in the employee’s possession was unreasonable, and that this commissioner’s failure to consider material facts amounted to “having caused an unreasonable result in relation to guilt.

The Court set side the arbitration award declaring the dismissal unfair, and awarding the employee six months compensation, and replaced it with an order that the dismissal of the employee was fair.

On the question of such unauthorised possession being deserving of dismissal, the Court held that “It is difficult to imagine how everyone could be given a chance to be found at least once in unauthorized possession of company property before resorting to dismissal.  Dismissal for a first instance of such misconduct was fair ..”

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Beware the office party mayhem

Beware the office party mayhem

It’s that time of year again when office parties are in full swing.  Whilst most office parties are incident free, some can be notoriously memorable for all the wrong reasons.

Let’s face it, with spirits running high and alcohol flowing, you frequently have the ingredients for office parties to bring out the very worst in behavior.

I have been involved in a case where such a year-end function deteriorated into a fight between colleagues which quite literally resulted in blood on the walls.

Take the arbitration case of SACTWU v H D Lee [KN2505].  The employer booked a venue for its three hundred employees.  Transport was provided to the venue, and food and alcohol were gladly provided.  The arbitration award highlights the mayhem – “It is common cause that Mr. Gounden pushed Mr. Naidoo to the ground.  The reason tendered for this was that Mr. Naidoo had, some days previously, attached a condom to the backside of another employee, a friend of Mr. Gounden’s.  Mr. Bikhod admitted that he joined the fray, hitting Mr. Naidoo in the face.  Mr. Naidoo retaliated and punched Mr. Bikhod on the nose, causing it to bleed … Mr. Bikhod then approached Mr. Naidoo and kicked him between the legs”.

Just for good measure, a manager was called a “f………. white pig” and the police were called.

No Christmas cheer here me thinks.

The recent arbitration case of Leonard Delon Naidoo v Masscash (Pty Ltd [KNDB1963-15] also sheds light on an end of year function gone wrong.

This case involves an employee who conceded that he had behaved “inappropriately” due to him having “consumed a cocktail of alcohol and medication”, and therefore “could not recall his behavior”.

According to the evidence led, the employee in question, a senior manager, had allegedly assaulted colleague, sexually harassed another, and been grossly intoxicated.

Employer witness, Ms. X, testified that she had “done a belly dance” at a previous party; at the yearend function the employee “who was intoxicated, had approached her and shaken his hips in a suggestive sexual manner to her, and asked if she would be giving a repeat performance”.

Another female employee testified that “she was sitting at a table together with about nine or ten people when the applicant, standing behind her, rubbed his hand up and down her arm and said how nice her arms were and kissed her on the neck”.

Yet another employee testified that the employee had hit him “on the head unexpectedly”.

So there you have it.  A glimpse into the world of year-end functions that don’t go entirely to plan.

You can be sure that in the months to come, there will be various arbitration hearing conducted about wayward shinanigans and behavior at company do’s, with heeps of morning after regret.

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Circumstantial evidence revisited

Circumstantial evidence revisited

Circumstantial evidence is indeed admissible in disciplinary and arbitration hearings; that much we already know.  However, certain important factors relating to the introduction of circumstantial evidence, and the manner in which it is to be dealt with, must be borne in mind.

So what is circumstantial evidence?

Circumstantial evidence is the opposite of ‘direct evidence’ (ie: the kind of evidence which comes from witnesses) and can therefore be described as ‘indirect evidence’ in that certain ‘assumptions’ are made.  It is admissible under certain circumstances, and may only be used to support a substantial fact.

The Chairperson of an enquiry should listen to circumstantial evidence first and then decide how much weight they are going to give it (in other words, how fair it would be to admit it either entirely or in part).

Case law abounds with guidelines for the use of circumstantial evidence.

The leading case authority is R v Blom (1939 AD) wherein it was held that “The inference sought to be drawn must be consistent with all the proved facts.  If it is not, then the inference cannot be drawn”.

This judgment continues that “The true facts should be such that they exclude every reasonable inference from them save the one sought to be drawn.  If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct”.

More recent landmark case law has also addressed circumstantial evidence.

In Atherstone v Lewis stores (Pty) Ltd [CCMA KNDB13032-11) it was noted that “The textbooks on evidence say that circumstantial evidence is persuasive if the inference sought to be drawn from the evidence is consistent with all the facts proved and it is the most plausible inference.  It need not be the only inference”.

In practice, circumstantial evidence is used by way of proving certain facts, and thereafter seeking to persuade the chairperson/arbitrator, that the guilt of the employee is the most plausible inference that can be drawn from the proven facts.

In Komape v Spoornet (Pty) Ltd & others (labour Court: 2008) the Court held that in assessing circumstantial evidence, an arbitrator must always consider the cumulative effect of all the items of evidence before him or her, and that the onus in civil cases is discharged if the inference advanced is the mist readily apparent and acceptable from a number of other possible inferences.

The somewhat dated, but none the less still pertinent English case of Caswell v Powell Duffy Collieries Ltd [1939] held that “There can be no inference unless there are objective facts from which to infer other facts which it is sought to establish … but if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.

In short, circumstantial evidence must be based on proven facts which themselves lead to guilt being the most reasonable inference or assumption.

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