An employee was dismissed for alleged misconduct involving bribery, corruption and dishonesty. The CCMA commissioner ruled that his dismissal was unfair and he should be reinstated with back pay. The employer then alleged that the commissioner had committed gross irregularities during the hearing, and sought to have the award reviewed.

South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others (C520/2020) [2023] ZALCCT 12 (3 April 2023)

Case Summary

SARS filed an application to review an arbitration award which ordered the reinstatement of Francois Allens, an investigator who was dismissed for alleged misconduct involving bribery, corruption and dishonesty. Commissioner Parathi Pather found the dismissal to be substantively unfair and ordered that he be reinstated with back pay.

The transcript of the aggressive line of questioning by the commissioner during the hearing clearly shows that she was trying to tease apart the two disparate accounts of the events, but in her efforts, she acted more like a representative for one side than an arbitrator.

The applicant was dismissed for misconduct on charges of bribery, corruption and dishonesty. The respondent alleged that the applicant had called a David Hans and had asked him to look the other way when inspecting a container, and if he did so, he would be well compensated. The applicant acknowledged that he called David Hans on 15 September 2017, but denied offering him a bribe in exchange for looking the other way. Hans testified as a witness, stating that when he inspected the container, he found undeclared goods, including counterfeit goods to the value of about R10- to R12-million.

The commissioner tried to impress upon the witness the gravity of the accusation he was making, because his statement included the belief that the entire organisation was riddled with corruption. She tried to make it very clear that beliefs can taint one’s perception of events, and in that instance, exact words are more important than general beliefs engendered by rumours.

Her summary of Hans’ evidence reads as follows:

“The respondent then called their only witness who had first-hand knowledge of what happened. However, this witness was very unreliable. Without even being prompted to do so, he revealed a prejudice that he felt by his belief that everyone who came from TIU (Tactical Interventions Unit) were corrupt. Prior to the hearing he had reported that the applicant had called him on 15 September 2017 and asked him to ignore most of the contents of the container and in exchange he will be taken care of. He then called his manager to report the phone call. His manager then told him to unpack the entire container whereby he found bales of counterfeit goods. Under cross-examination, he admitted that he did not really hear the applicant on that day because the call was only for one minute and it was very noisy where he was. He then drew his own conclusion that because the applicant worked at TIU, his call must mean he must overlook certain goods and he will be taken care of. In perusal of the appeal application, it appears as if Hans did not come across as being reliable witness at the disciplinary hearing himself.”

According to the court, “the ‘prejudice’ against TIU was proffered by Hans in answer to questions by the Commissioner. She appeared intent on obtaining an answer from Hans to the effect that it was because of this prejudice that he had thought the call from Allens involved corruption. The Commissioner’s repeated warnings to Hans that a man’s live was at stake and her insistence that he go and think carefully about his version, strike the Court as unusually intrusive in far as the proceedings were concerned. Her interventions were made both before he was cross examined and after he was re-examined.”

An arbitrator is required to conduct the arbitration fairly and quickly, dealing with the substantial merits of the dispute with the minimum of legal formalities, while striking an equitable balance between formality and fairness. The court may intervene in terms of its supervisory functions if it appears from the record before the court that one of the specific grounds as listed in Section 145(2)(a) of the Labour Relations Act (LRA) actually exists.

Although the commissioner may conduct arbitration proceedings in any manner deemed appropriate, the commissioner cannot become engaged in the proceedings to such an extent that it appears as if he or she is a representative of one of the parties. The conduct of the commissioner must respect the roles of the parties’ respective representatives and the commissioner cannot assume to herself the role of leading evidence and conducting cross-examination.

The court noticed that the arbitrator had repeatedly warned the witness that a man’s life was at stake, and had asked him to clarify his memory of the facts both before and after his testimony. She interrupted the representative for the witness and interpreted the words of the witness before he had even finished speaking.

All in all, the court found that the arbitrator had not conducted a fair and impartial hearing of the issue, and had overstepped her bounds. It was ordered that the award be set aside, and that the case be heard afresh by a different CCMA commissioner. No order was made as to costs.

Issued by Labourguide