About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2024
>>
[2024] ZALCJHB 250
|
|
Maphosa v Trinity Maintenance Group (Pty) Ltd (JR609/23) [2024] ZALCJHB 250 (22 February 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR609/23
In
the matter between:
FRANCE
MAPHOSA
Applicant
and
TRINITY
MAINTENANCE GROUP (PTY) LTD
First Respondent
MICHAEL
BOYCE
Second Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Third Respondent
Heard:
5 December 2023
Delivered:
22 February 2024
This
judgment was handed down electronically by emailing a copy to the
parties. The date for hand-down is deemed to be 19 February
2024.
JUDGMENT
MAFA-CHALI,
AJ
Introduction
[1]
This is an
unopposed review application in terms of Section 145(2)(ii) read
together with 158(1)(a) of Labour Relations Act
[1]
(LRA). The applicant seeks to review and set aside an arbitration
award issued by the second respondent (commissioner) dated 2
March
2023 under case number GAJB23957-22 under the auspices of the third
respondent (CCMA). The commissioner found that the applicant’s
dismissal by the first respondent (employer) was substantively fair
in that there was a fair reason for the applicant’s dismissal
by the first respondent. The applicant’s referral was
dismissed.
Factual
background
[2]
The applicant was employed by the first respondent as a driver/
gardener from 6 November 2019 to 24 November 2022. The
applicant was
charged with three allegations of misconduct and the disciplinary
hearing was held on 4 November 2022. The charges
are as follows:
2.1.
Dishonesty in that on 21 October 2022, you entered false information
on the company document. You indicated on
the checklist that you
performed your duties as required. Upon investigation by the Manager,
Mr Matt van Haght, it was found that
the information was not true and
that all the tasks were not completed.
2.2. Bringing
the company name into disrepute in that on 21 October 2022, the
client was very unhappy with the standard
of work.
2.3. That you
failed to supervise your staff because you were sitting at Caltex
Garage while they were working.
[3]
Following a disciplinary hearing, the applicant was found guilty of
two charges of dishonesty and bringing the name of
the company into
disrepute and was subsequently dismissed. He was not found guilty of
the third allegation. The applicant referred
an unfair dismissal
dispute to the CCMA.
Grounds for review
[4]
The applicant raised three grounds of
review. The first ground is that the commissioner erred in making a
finding that it was possible
that the applicant may not have
completed the tasks as they appear on the checklist as he was not at
the site as the first respondent
claims. The second ground of review
is that the commissioner erred by failing to realise that the
photographs that were taken by
the first respondent were taken at the
time when he was not yet at the site as the photographs were taken
and sent to him at 15h25
in the afternoon and he attended to the site
only at 15h40 to 17h30. The third ground of review is that the
commissioner took the
evidence of the first respondent at face value
without interrogating it. It was submitted that failure by the
commissioner to understand
the evidence before him affected his
ability to take into account the totality of the facts and therefore
misconducted himself
when he decided in favour of the first
respondent, thereby committing a legal and factual error; and that
the decision of the commissioner
is a decision which another person
in the position of the commissioner would not have arrived at.
Evaluation
[5]
The applicant’s grounds of review are
essentially the failure of the commissioner to evaluate the evidence
presented to him
by parties during the arbitration proceedings and
therefore overlooked material evidence in reaching his conclusion.
The arbitrator
found that the applicant completed the checklist of
the tasks to be performed, to have been properly performed as
testified by
the first respondent’s only witness Matthew Rhys
van Haght (van Haght), whereas they have not actually been performed
on
27 October 2022.
[6]
The commissioner found that the applicant
was dishonest in completing the checklist. It appears in the
commission’s award
that photographic evidence in the first
respondent’s bundle of documents indicated that various tasks
had not been performed.
Van Haght testified that the photographs were
taken on 27 October 2022 at the Bryanston complex, the first
respondent’s client
after the applicant’s team had left
the company to go to work at that site but had not completed all the
tasks that should
have been completed.
[7]
It is apparent from van Haght‘s
testimony that he arrived at the site shortly after 15h00 on 27
October 2022 and took the
photographs at the site after the applicant
and the team left the site, but the applicant completed on the
checklist that he completed
various tasks at 15h40 to 17h30 whereas
those tasks were not properly carried out.
[8]
According to the applicant’s
testimony, van Haght’s evidence was false as he had shown him
those photographs presented
during the arbitration hearing on the
morning of 27 October 2022 and even sent him a WhatsApp communication
from the client who
had complained that work was not properly done;
and that at the time van Haght alleged he arrived at the site shortly
after 15h00,
he was still at the complex enquiring with the client
about the complaint but did not start working and the client denied
any such
complaint. The applicant further testified that van Haght
lied that he came to the complex whereas he did not. The applicant
further
testified that he was given a notice to attend a disciplinary
hearing in the morning of 27 October 2022 even before he visited the
Bryanston complex and he saw members of his team writing statements
early in the morning of 27 October 2022. Further van Haght
sent him
the photographs at 15h22 on the same day and at that time he had
already spoken to the client to establish the client’s
complaint. His further testimony was that van Haght took the
photographs on 20 October 2022 not on 27 October 2022 as on the
latter
date van Haght was not at the complex.
[9]
In his award, the commissioner stated as
follows:
‘
[5.6]
The respondent’s case against the applicant was based solely on
the evidence of van Haght and the photos taken, while
the applicant
was the sole source of the evidence tendered by him. Van Haght was
adamant that the misconduct had occurred and the
photos were taken in
27 October 2022, while the applicant was equally adamant that the
photos were taken on 20 October 2022 and
there had not been any
misconduct on 27 October 2022.’
[10]
The commissioner continued as follows:
‘
[5.7]
The evidence of the respondent’s witness (van Haght) was far
more probable than that of the applicant and tallied with
documentary
evidence, as will become apparent. I found no reason to question the
credibility of the respondent’s witness
and I accept his
evidence in preference to the evidence of the applicant. To be blunt,
the applicant had no defence to the charge
against him and this was
the reason he sought to create confusion relating to the date of
misconduct.’
[11]
It must be determined whether the findings
of the commissioner in the evaluation and assessment of the material
evidence before
him are reasonable and determined with due regard to
all the evidence in relation to the issues that were before him,
especially
when faced with conflicting versions as the commissioner
has already alluded.
[12]
The further analysis of the evidence stated
that he found no rational or logical reason for the respondent to
charge the applicant
for misconduct on 27 October 2022 if the
misconduct occurred on 20 October 2022 and that the applicant’s
attempt to a divorce
between the date of the photographs; and this he
found surprising as according to him the photographs constitute solid
irrebuttable
evidence of the task that had not been properly carried
out in direct contrast to what the applicant indicated on the
checklist
had been carried out. The commissioner found that it was
the discrepancy between the photographs and the checklist that had
given
rise to the charge of dishonesty against the applicant.
[13]
The commissioner then concluded that:
‘
[5.12]
It is improbable, taking into account the totality of the evidence
that the applicant’s evidence can be true
or that any weight
can be attached to his evidence. On a balance of probabilities, I
find that the applicant committed the misconduct
of dishonesty. There
was insufficient evidence to show that the applicant brought the
respondent’s name into disrepute, although
it would be
surprising if this was not the case. The evidence of van Haght in
this regard was simply hearsay evidence.’
[14]
The commissioner in his award did not
reason on the finding that the applicant deliberately and knowingly
made a misrepresentation
that the tasks to be completed at the
complex had been completed whereas this was not true. He seemed to
have merely admitted the
first respondent’s version that the
applicant lied and was dishonest in making a misrepresentation that
the task to be completed
at the complex had been completed whereas
this was not true.
[15]
The commissioner was required to assess the
credibility and probability of the evidence presented by van Haght
that he received
a client’s complaint and he was at the site
shortly after 15h00 on 27 October 2022 and even took photographs
against the
applicant’s version that van Haght had shown him
the photographs taken on 20 October 2022 in the morning of 27 October
2022
and later sent him the photographs at 15h22, when he, in fact,
completed the tasks from 15h40 to 17h30. However, the commissioner
failed to evaluate and assess objectively the evidence in order to
arrive at a finding that the photographs were not taken on 20
October
2022 but on 27 October 2022 as alleged by Mr Haght.
[16]
There is also undisputed evidence led by
the applicant that he saw his two team members, Busani and Melusi on
the morning of 27
October 2022 signing statements and it transpires
in the transcript that during the disciplinary hearing indeed two
team members
of the applicant made those statements and were called
as witnesses of the first respondent, and the applicant challenged
their
statements on the basis that they did not write the statements
themselves but van Haght wrote for them and made them sign, which
version was conceded by van Haght in his testimony. The commissioner
has not dealt with this evidence and clearly overlooked this
material
evidence before him.
[17]
Another difficulty that I have in the
commissioner’s finding is that he found the first respondent’s
evidence more probable
than that of the applicant that he merely
labelled the applicant’s version as a lie with inconsistencies
without also pointing
out the inconsistencies on the part of the
applicant to support this finding that led him to find the
applicant’s evidence
improbable. The commissioner seemed to
have confused the applicant‘s version that the last time he was
at the site was on
20 October 2022 and again on 27 October 2022, not
that he was never at the site on 27 October 2002 at all. In his
testimony, the
applicant was clear that on 27 October 2022, upon his
arrival at the site, he went to see that client that van Haght
indicated
had complained about their services, and completed the
tasks at 15h40 to 17h30 as it appears on the checklist.
[18]
The evidence of the photographs presented
by the first respondent’s bundle of documents did not show the
date and time to
confirm the first respondent’s evidence that
the photographs were indeed taken on 27 October 2022 at 15h00 and the
Applicant
disputed that van Haght was at the site and took those
photographs. The arbitrator has accepted the photographs were taken
by the
witness without applying the correct legal principles on the
law of evidence and admissibility of photographs, but instead stated
in his award that the photographs constitute “
solid
irrebuttable evidence”
that the
tasks that had not been carried out in contrast to what was indicated
by the applicant in the checklist.
[19]
It is also evident on record that the
applicant wanted to present evidence of his own photographs in
support of his version to prove
that the first respondent’s
witness was not on site on 27 October 2022 but the commissioner
omitted or failed to guide the
applicant in presenting his
documentary evidence and photographs from his cell phone, and such
his evidence in this regard was
then not considered by the
commissioner. It is clear from the transcript that the commissioner
already on record accepted the version
of the first respondent about
the date that the photographs were taken and made certain conclusions
or findings during the arbitration
process. On page 88, line 14, the
commissioner stated
:
‘
So,
if it was taken on 20 October 2022 after they have done their work,
it was not right. If it was taken on 27 October 2022 after
they did
their work, it was right.’
[20]
The commissioner then confirmed what he
said on record in his finding in his award that the photos by van
Haght were not taken on
20 October 2022 but on 27 October 2022 with
no justification of such a finding in rejection of the applicant’s
version which
appears clearly on Page 48 of the transcript that
looking at the photos that were sent to him on 27 October 2022, he
worked on
the site on 20 October 2022 and had not been to the site
since that day until the 27
th
of October 2022 at 15h40 when he came to complete the tasks in the
checklist.
[21]
The commissioner misdirected himself to
make a finding that the applicant implied the date of misconduct is
20 October 2022 and
that the photographs were irrelevant in respect
of any purported misconduct of such a date as they relate to the date
of 20 October
2022 not 27 October 2022, the date of the allegations
for which he was charged. The commissioner also made an incorrect
finding
on law as he overlooked the law of evidence that photographs
are considered secondary evidence, are not irrefutable and cannot be
considered conclusive evidence; but should be considered with the
other evidence presented in coming to a decision of whether they
are
relevant and admissible evidence.
[22]
Page 57, line 16, the transcripts of the
record of the proceedings clearly indicate the presentation of the
notice to attend the
disciplinary hearing by the first respondent and
the applicant also presenting the one he received on the morning of
27 October
2022 before he could leave to do his tasks, which he
refused to sign. Accordingly, the commissioner in his award has
failed to
assess, evaluate and make a finding on the material
documentary evidence presented by both parties relevant to the
commission of
the offence by the applicant on 27 October 2022.
[23]
In
Booi
v Amathole Municipality and Others
[2]
,
the Constitutional Court remarked that:
‘
[29]
… the limitation of remedy to the mechanisms of review, as
opposed to an appeal, evidenced a clear intention to
prevent labour
dispute resolution procedures from becoming costly and
time-consuming. Arbitration awards are intended to be final
and
binding. A review court must necessarily respect this choice, and
refrain from treating reviews as appeals. In essence, the
determination of the fairness of a suspension (like a dismissal)
involves the exercise of a value judgement, something about which
reasonable people may differ, and which requires an arbitrator to
decide whether what the employer did was fair, after having taken
into account the totality of circumstances.’
[24]
The determination of any reviewable
irregularity on the part of the decision maker determines if the
decision of the arbitrator
falls within a band of decisions to which
a reasonable decision maker could come to on the available material.
If so, the award
must be upheld regardless of any lapses in the
decision maker’s reasoning or conduct. This test is
outcome-based. If the
outcome can be sustained by reference to the
available evidence, regardless of the manner in which the outcome was
reached, it
must be sustained.
[25]
The above evaluation of the commissioner’s
evidence reveals a failure by the commissioner to rationally and
properly assess
the evidence before him.
[26]
In
Head
of the Department of Education v Mofokeng and Others
[3]
,
the Court stated as follows:
‘
[31]
The determination of whether a decision is unreasonable in its result
is an exercise inherently dependent on variable
considerations and
circumstantial factors. A finding of unreasonableness usually implies
that some other ground is present, either
latently or comprising
manifest unlawfulness. Accordingly, the process of judicial review on
grounds of unreasonableness often
entails examination of
inter-related questions of rationality, lawfulness and
proportionality, pertaining to the purpose, basis,
reasoning or
effect of the decision, corresponding to the scrutiny envisioned in
the distinctive review grounds developed casuistically
at common law,
now codified and mostly specified in section 6 of the Promotion of
Administrative Justice Act (“PAJA”);
such as failing to
apply the mind, taking into account irrelevant considerations,
ignoring relevant considerations, acting for
an ulterior purpose, in
bad faith arbitrarily or capriciously etc. The court must nonetheless
still consider whether, apart from
the flawed reasons of or any
irregularity by the arbitrator, the result could be reasonably
reached in the light of the issues
and evidence. Moreover, judges of
the Labour Court should keep in mind that it is not only the
reasonableness of the outcome which
is subject to scrutiny. As the
SCA held in
Herholdt
,
the arbitrator must not misconceive the enquiry or undertake the
inquiry in a misconceived manner. There must be a fair trial
of the
issues.
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an unreasonable
outcome or provide
a compelling indication that the arbitrator misconceived the inquiry.
In the final analysis, it will depend
on materiality of the error or
irregularity and its relation to the result. Whether the irregularity
or error is material must
be assessed and determined with reference
to the distorting effect it may or may not have had upon the
arbitrator’s conception
of the inquiry, the delimitation of the
issues to be determined and the ultimate outcome. If but for an error
or irregularity a
different outcome would have resulted, it will
ex
hypothesi
be material to the determination of the dispute. A
material error of this order would point to at least a
prima facie
unreasonable result. The reviewing judge must then have regard to
the general nature of the decision in issue; the range of relevant
factors informing the decision; the nature of the competing interests
impacted upon by the decision; and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the
LRA. Provided the right question was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, an irregularity or error material to the
determination
of the dispute may constitute a misconception of the
nature of the enquiry so as to lead to no fair trial of the issues,
with the
result that the award may be set aside on the ground alone.
The arbitrator however must be shown to have diverted from the
correct
path in the conduct of the arbitration and as a result failed
to address the question raised for determination.’
[27]
The
judgement of the Labour Appeal Court (LAC) in
Fidelity
Cash Management Services v Commission for Conciliation, Mediation and
Arbitration and Others
[4]
(
Fidelity
Cash
)
held:
‘
[102]
… It seems to me that, even if there may have been a debate
under Carephone and prior to Sidumo on whether a
commissioner’s
decision for which he or she has given bad reasons could be said to
be justifiable if there were other reasons
based on the record before
him or her which he or she did not articulate but which could sustain
the decision which he or she made,
there can be no doubt now under
Sidumo that the reasonableness or otherwise of a commissioner’s
decision does not depend
– at least not solely – upon the
reasons that the commissioner gives for the decision. In many cases
the reasons which
the commissioner gives for his decision, finding or
award will play a role in the subsequent assessment of whether or not
such
decision or finding is one that a reasonable decision-maker
could or could not reach. However, other reasons upon which the
commissioner
did not rely to support his or her decision or finding
but which can render the decision reasonable or unreasonable can be
taken
into account. This would clearly be the case where the
commissioner gives reasons A, B, and C in his or her award but, when
one
looks at the evidence and other material that was legitimately
before him or her, one finds that there were reasons D, E and F upon
which he did not rely but could have relied which are enough to
sustain that decision.’
[28]
The LAC in
Fidelity
Cash
concluded:
‘
[103]
Whether or not an arbitration award or decision or finding of a CCMA
commissioner is reasonable must be determined objectively
with due
regard to all the evidence that was before the commissioner and what
the issues were that were before him or her. There
is no reason why
an arbitration award or a finding or decision that, viewed
objectively, is reasonable should be held to be unreasonable
and set
aside simply because the commissioner failed to identify good reasons
that existed which could demonstrate the reasonableness
of that
decision or finding or arbitration award
[5]
.’
[29]
The
arbitrator overlooked material evidence in reaching his conclusions.
It is evident from the award and transcript record that
the
commissioner grappled with the conflicting evidence of the parties.
The commissioner had to assess and evaluate the evidence
as such
holistically with regard to the available evidence before him. In
Stellenbosch
Farmers’ Winery Group Ltd. and Another v Martell & Cie SA
and Others
[6]
the
test is formulated as one in which the technique generally employed
by courts in resolving factual disputes of this nature may
conveniently be summarised as follows:
‘
[5]
To come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various
witnesses; (b) their
reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of a particular
witness will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors,
not necessarily in order
of importance, such as (i) the witness’s candour and demeanour
in the witness-box,(ii) his bias,
latent and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on
his behalf, or with established fact or
with his own extracurial statements or actions, (v) the probability
or improbability of
particular aspects of his version,(vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying
about the same incident or events.’
[30]
In
Masisela
v Leonard Dingler (Pty) Ltd
[7]
it
was stated that:
‘
The
credibility of the witnesses and the probability and improbability of
what they say should not be regarded as separate enquiries
to be
considered piecemeal. They are part of a single investigation into
the acceptability or otherwise of the respondent’s
version...’
[31]
Further
guidance was also provided in
Sasol
Mining (Pty) Ltd v Ngqeleni and Others
[8]
,
in which it was held that
:
‘
[9]
The commissioner was obliged to at least to make some attempt to
assess the credibility of each of the witnesses
and to make some
observation on their demeanour. He ought also to have considered the
prospects of any partiality, prejudice or
self-interest on their
part, and determined the credit to be given to the testimony of each
witness by reason of its inherent probability
or improbability. He
ought also to have considered the probability or improbability of
each party’s version. The commissioner
manifestly failed to
resolve the factual dispute before him on this basis. Instead, he
summarily rejected the evidence of the applicant’s
witnesses on
grounds that defy comprehension.
…
[13] …
the arbitrator failed to have any regard to the credibility and
reliability of any of the witnesses, nor
did he have regard to the
inherent probabilities of the competing versions before him. That
failure, and the fact that the award
clearly may have been different
had the commissioner properly acquitted himself, renders the award
reviewable on account of a gross
irregularity committed by the
commissioner in the conduct of the arbitration proceedings.’
[32]
Similarly, in this case, it was required of
the commissioner when faced with conflicting versions of the parties
to weigh the evidence
that is tendered before him with a view to
arrive at a version that is more probable. I, however, find that the
commissioner, in
this case, had failed to do so, and this resulted in
gross irregularity on his part. The commissioner failed to apply his
mind
to the facts before him and that affected his sense of fairness
in dealing with the dispute. Therefore, his arbitration award stands
to be reviewed and set aside.
Costs
[33]
The general principle in labour matters is
that costs do not follow the result. Cost orders are made unless the
requirements of
law and fairness are met. This is an unopposed review
application and there are no good reasons why a cost order can be
granted.
[34]
I thus make the following order:
Order
1. The arbitration
award of the second respondent is reviewed and set aside.
2. The unfair
dismissal dispute between the first respondent and the applicant is
remitted for re-hearing before the CCMA
by another commissioner other
than the second respondent.
3. There is no
order as to costs.
G.
Mafa-Chali
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Advocate Tolo Sadike
Instructed
by:
Oosthuizen, Du Toit, Berg & Boon Attorneys
[1]
Act
66 of 1995, as amended.
[2]
[2021] ZACC 36
; (2022) 43 ILJ 91 (CC) at para 51; see
Department
of Public Works and another v Vukela and others
[2022] JOL 54644
(LC) at para 29.
[3]
[2014] ZALAC 50
;
(2015)
36 ILJ 2802 (LAC).
[4]
[2007]
ZALAC 12
, (2008) 29 ILJ 964 (LAC) at para 102.
[5]
Ibid
at para 103.
[6]
[2002] ZASCA 98
; [2003] (1) SA11 (SCA) at para 5.
[7]
(2004)
25 ILJ 544 (LC);
[2004] JOL 12507
(LC) at para 29.
[8]
[2010] ZALC 141
;
(2011)
32 ILJ 723 (LC) at paras 9 and 13.