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[2024] ZALCJHB 349
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Bridge Service And Panel (Pty) Ltd v Nhambe and Others (JR1621/21) [2024] ZALCJHB 349 (2 April 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
No: JR 1621/21
In
the matter between:
BRIDGE
SERVICE AND PANEL (PTY) LTD
Applicant
and
FERNANDO
KAMIRO NHAMBE
First
Respondent
TANYA
ROBERTS-KRUGER
N.O.
Second
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Third
Respondent
Heard:
30 August 2023
Delivered:
This judgment was handed down electronically by circulation to the
parties' legal representatives by
email and publication on the Labour
Court’s website. The date and time for hand-down is deemed to
be on 2 April 2024
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
In this opposed application, the applicant seeks an order
reviewing and setting aside the arbitration award issued by the
second
respondent (Commissioner) acting under the auspices of the
third respondent, the Commission for Conciliation Mediation and
Arbitration
(CCMA). In the award, the Commissioner found that the
dismissal of the first respondent, Mr Fernando Nhambe (Nhambe) was
substantively
unfair and had further ordered his retrospective
reinstatement, together with full back-pay from the date of
dismissal.
Background:
[2]
The applicant is in the business of vehicle
panel beating. Nhambe was employed by the applicant in its Workshop
on 1 February 2017
as an Assembler. He
was suspended on 11
June 2020 and further notified to attend a disciplinary enquiry
scheduled for the next day (12 June 2020),
to answer to allegations
of dishonesty and attempted theft.
[3]
The
outcome of the disciplinary enquiry
[1]
in terms of which Nhambe was dismissed is undated. However, on 17
June 2020, he was informed of his dismissal in correspondence
that
indicated that the hearing was held on 16 June 2020 (a public
holiday).
[4]
Following his dismissal, Nhambe had
initially referred a dispute to MIBCO. The dispute was however been
transferred to the CCMA.
After a default award and a rescission
ruling in that regard, the dispute was ultimately re-scheduled for a
hearing on 24 June
2021, and it came before the Commissioner,
resulting with the impugned arbitration award.
The proceedings and
evidence before the Commissioner:
[5]
Nhambe’s duties as an Assembler included having to assemble and
repair vehicles that were brought into the applicant’s
workshop. In May 2020, he was allocated a vehicle under job number
976 to repair, which included having to replace parts on that
vehicle. Amongst the parts he was required to replace was a sliding
door handle. The process of acquiring and replacing parts involved
making a requisition at the applicant’s stores department,
which required a job number. Once the vehicle part was acquired,
the
storeroom would inform the person (Assembler, Technician or
Panel-beater) who had requested it. That person would then collect
it
from the storeroom and sign for it, indicating that he had received
it in accordance with the job number.
[6]
The evidence of Mr Sharab Mane, the applicant’s Workshop
Manager was that Nhambe after being assigned the vehicle
under job
976, had in the process of assembling and repairing it, requested a
new sliding door handle from the stores. This part
was ordered as
requested and issued to Nhambe. After he had completed the job, the
vehicle was then parked in the applicant’s
yard, where the
owner was expected to fetch it. Nhambe’s completion of the job
on the vehicle took place during the National
Lock-down resulting
from the Covid-19 pandemic. The owner could not fetch the vehicle,
and had only done so a month after the lock-down
measures were eased.
[7]
The owner of the vehicle came and upon inspecting it, had discovered
that the sliding door of the vehicle did not open
from the outside. A
supervisor, Mr Jacob Samson, was alerted to the problem and the
vehicle was taken back to the workshop. At
the time, Nhambe was busy
working on another vehicle, and another Technician was requested to
assist. This Technician upon inspecting
the door handle then
requested a new sliding door handle from the stores department. When
processing the request and having entered
the details of the vehicle
into a system, the Storeman discovered that the same vehicle part was
previously requested, was issued
and collected by Nhambe.
[8]
Following investigations, Nhambe was then confronted and asked
whether he had replaced the door handle. He had confirmed
that he had
indeed ordered and received the new part. He had however insisted
that upon receiving the door handle, he had fitted
it into the
vehicle in question. Mane further testified that despite a new handle
having been ordered and received, an old broken
second hand part was
instead fitted into the vehicle, hence it was found by the owner not
to be in working condition. Mane contended
that if there were
problems with the new part that Nhambe had received from the stores,
the procedure would have been to return
it to the stores for it to be
returned to the supplier for an exchange or a credit note. This was
however not done.
[9]
Mane further testified that the applicant had experienced a problem
of theft at the workshop, and that discussions were
held with all the
employees on a daily basis in meetings. The applicant had even
drafted and implemented a policy that prohibited
workshop staff from
going into the storage yard where parts could also be obtained. The
yard area was also closely monitored by
security, who kept a record
of any parts that were taken, and employees could not access the yard
without permission from either
a supervisor or a manager.
[10]
Under cross-examination, and when it was put to him that the Quality
Controller had checked the vehicle after it was
repaired and was
satisfied, Mane’s contention was that the Quality
Controller did not have access to the system to
check what part of a
vehicle was replaced or repaired. Mane contended that the
Quality Controller may have checked and found
that the sliding door
of the vehicle was working properly, but when the customer came to
collect it, the door was not working.
Mane further disputed Nhambe’s
version that the old door handle after being retrieved was not shown
to him at the time that
the vehicle owner had complained. Mane
conceded that he could not think of how the new sliding door part had
left the premises
when there were security measures in place at the
main entrance and exit points of the premises.
[11]
Samson also testified that Nhambe reported to him as he was his
direct supervisor. Samson had assisted the owner of the
vehicle when
he came to collect it and discovered the problem with the door
handle. He confirmed Mane’s evidence as above
and also added
that when Nhambe was confronted, he had suggested that the amount of
the new door handle could be deducted from
his salary. According to
Samson, this indicated that Nhambe had acknowledged guilt.
[12]
Mr Adeer Mohunlal, the Storeman confirmed that he had issued the new
sliding door handle to Nhambe after he had presented
his job card.
When the same part was again requested on the same vehicle with the
same job card, the system had prevented him from
processing the
issuing of the part. He testified that upon examination, the part
that was fitted into the owner’s vehicle
was broken and/or was
second-hand, and could not have been issued from the stores. He
further confirmed that Nhambe did not return
the new part that was
issued nor reported it as faulty.
[13]
Nhambe’s evidence was that having obtained the new part from
the Storeman, he had fitted it into the vehicle assigned
to him. The
workmanship on the vehicle was subsequently passed by a Quality
Controller before it was parked in the yard for
collection. As a
result of the national lock-down resulting from Covid-19, the
workshop had closed for a month. The owner of the
vehicle
subsequently came to collect the vehicle. It was at that stage that
Nhambe was then informed that the sliding door that
was fitted on the
vehicle was not working. He had explained that he had indeed
requested and received the part from the storeroom,
and also fitted
it into the vehicle.
[14]
Nhambe further testified that he had requested to see the door handle
that was taken from the vehicle and the new one
that was fitted. His
request was however refused, on the basis that management could also
not distinguish between the old and new
door handle. He conceded he
had offered to pay for the handle or be issued with a warning as he
was trying to save his job, even
though he had insisted that he had
fitted the new part in the vehicle.
The Commissioner’s
findings:
[15]
The Commissioner in analysing the evidence
accepted that the incident in question was reported on 11 June 2020,
and that the vehicle
was indeed parked for over a month after it was
repaired before it was collected by the owner. The Commissioner found
that during
the lock-down, the vehicle was left unattended for about
a month, and anyone could have removed the new part from the vehicle
and
replaced it with an old one.
[16]
The Commissioner concluded that the
applicant (employer), could not explain as to what could have
happened to the vehicle
part during the period of lock-down, nor
could it demonstrate that it was Nhambe that had removed the new part
from vehicle and
out of the premises. Accordingly, the Commissioner
concluded that the applicant did not discharge the onus of proving
that the
dismissal was substantively fair.
Grounds of review:
[17]
The applicant contends that the
Commissioner misdirected herself in that she failed to properly
consider the evidence before her.
In this regard, it is contended
that the Commissioner ignored or failed to appreciate and understand
the evidence led; misapplied
her mind when she required the applicant
to demonstrate that the trust relationship was broken; and failed to
apply her mind to
the facts and the evidence. The applicant further
contends that the Commissioner committed misconduct in the
proceedings by failing
to advise its representative at the hearing to
apply for a postponement when it was indicated that one of its
witnesses was not
available to testify due to ill-health.
[18]
Nhambe in opposing the review application
contends that the applicant has not established any defect in the
arbitration proceedings.
In submissions made on his behalf, it was
contended that the review application was without merit, since the
applicant failed to
demonstrate that Nhambe was guilty of the
allegations preferred against him.
The
legal framework and evaluation:
[19]
The test on
review is well-known. The primary enquiry before the reviewing Court
is whether the conclusion arrived at by the commissioner
is one that
a reasonable decision-maker could not have reached based on the
material before him or her.
[2]
In
Herholdt,
it was
held that the test on review is stringent, as it ensures that awards
are not lightly interfered with, and that emphasis is
on the result
of the case rather than the reasons for arriving at that result. The
Supreme Court of Appeal (SCA) reiterated that
on the
Sidumo
test
,
there would be justification to set aside an award on review if the
decision was entirely disconnected with the evidence, or was
unsupported by any evidence, and involved speculation by the
commissioner
[3]
.
[20]
In order
for the commissioner to determine the fairness of the dismissal she
was required to determine whether a misconduct on which
the decision
to dismiss was based, was indeed committed. In this regard, it has
also been held in
Gold
Fields
[4]
,
that a commissioner in dealing with the matter with the minimum of
legal formalities, is also required to act fairly in the
determination
of unfair dismissal disputes, by affording the parties
a fair trial in the sense that they are accorded their right to have
their
cases fully and fairly ventilated.
[21]
To the
extent that the applicant had contended that the Commissioner
committed a reviewable irregularity by not advising its
representative
at the proceedings that he could seek a postponement
as a result of one of the witnesses being unavailable due to
ill-health, this
ground is indeed meritless. This is so in that the
applicant’s representative had after the evidence of the three
other witnesses
was finalised, indeed informed the Arbitrator that a
further witness was not available due to ill-health. As can however
be gleaned
from the transcribed record, the representative had upon
being asked by the Commissioner whether he was ‘comfortable’
in closing his case without that witness, responded in the
affirmative
[5]
.
[22]
There is therefore no basis for a conclusion to be reached that the
Commissioner was not even-handed or was required
to provide a
‘helping hand’ to the applicant’s representative.
If ever any party needed a helping hand, it was
Nhambe who was
representing himself at those proceedings.
[23]
In relation to the substantive issues and related grounds of review,
the primary enquiry before the Commissioner was
whether
there
was conduct on the part of Nhambe as alleged by the applicant, that
had demonstrated that he had acted in a dishonest manner
or that the
conduct amounted to attempted theft.
[24]
In
SASBO-The
Finance Union and Another v Standard Bank and Others
[6]
,
it was
held that
dishonesty
as an aspect of misconduct, is a generic term embracing all forms of
conduct involving deception. Dishonesty was defined
as a lack of
integrity or straightforwardness and, in particular, a willingness to
steal, cheat, lie or act fraudulently. The Labour
Appeal Court (LAC)
further held that deceitfulness could manifest itself in various
forms, which included
inter
alia
providing
false information, pilfering, theft, and fraud. The LAC reiterated
that the fiduciary duty owed by an employee to the
employer generally
rendered any dishonest conduct a material breach of the employment
relationship, thereby justifying summary
dismissal. The LAC had held
that even though dismissals for dishonesty should be upheld,
it
was not an invariable rule that offences involving dishonesty
necessarily incurred the supreme penalty of dismissal. The facts
of
every case must be assessed and the mitigating features taken
into account.
[25]
Stripped of all other side issues, the common cause facts before the
Commissioner were that Nhambe had indeed ordered
and received the
vehicle part in question. He had insisted that he had replaced the
old part with a new part, and the vehicle was
parked in the yard
which was under strict security controls. The vehicle was quality
checked and no issues arose from that process.
There was no evidence
presented by the Quality Controller to confirm whether the door
handle was repaired or replaced, or the nature
of the quality
inspection that was performed. All that was proffered by the
applicant was that it was not the function of the Quality
Controller
to know or check whether a part was replaced, repaired, and that his
functions were more directed at the roadworthiness
of the vehicle.
This evidence was however unhelpful and did not advance the
applicant’s case any further. The Commissioner
could not simply
accept as given, that the Quality Controller’s task was
limited, and did not include checking whether parts
that were
supposed to be repaired were indeed repaired.
[26]
The Court is prepared to accept Nhambe was made aware that there was
a problem with the door handle when the owner came
to collect the
vehicle. Nhambe could not dispute whether a new handle was fitted
into the vehicle when the owner raised concerns,
as he could not be
called at the time as he was busy with another vehicle. Even though
the Court is prepared to accept that indeed
a new door handle had to
be fitted in when the owner came to fetch the vehicle, there was
nothing to gainsay the fact that no one
knew what could have happened
to the initial door handle that Nhambe had replaced on the vehicle.
This was despite the security
measures in the applicant’s yard
where the vehicle was parked. Furthermore, on the applicant’s
own version, when lockdown
was effected, no one had access to the
premises during that period except security personnel. Even if it
might have been so, there
appears to have been no evidence placed
before the Commissioner as to whether any investigations were done
with the security personnel,
to enquire what may have happened in the
yard during the period of lock-down. The nature of the allegations
against Nhambe were
serious enough to require more than a perfunctory
investigations into the matter rather than reliance on conjecture.
[27]
In essence, what was before the Commissioner was to a large extent,
circumstantial evidence from which the applicant
had concluded that
Nhambe did not replace the door handle and had in effect ‘attempted
to steal’ the new part. This
was despite the fact that it is
not known how the ‘attempted theft’ of the new vehicle
part took place or what had
happened to the new part.
[28]
In cases
such as these, where on the facts it is apparent that the evidence
relied upon is clearly circumstantial, the onus is discharged
if the
inference advanced is the most readily apparent and acceptable
inference from a number of possible inferences. Furthermore,
the
inference relied on should be drawn from, and be consistent with the
objective proven facts, and not be based on a mere speculation
[7]
.
It would further be recalled that in
Herholdt
,
the SCA warned that on the
Sidumo
test
,
there would be justification to set aside an award on review if the
decision was ‘entirely disconnected with the evidence
or was
unsupported by any evidence’ and/or involved speculation by the
commissioner.
[29]
Even though the Commissioner did not in her analysis specifically
mention that what she was confronted with was circumstantial
evidence
(an issue that cannot be held against her or lead to a conclusion
that the nature of the enquiry may have been misconceived),
she had
nonetheless concluded that the applicant did not discharge its onus
on the basis that since the vehicle was left unattended
for a month
whilst the business was on lockdown, anyone could have removed the
new door handle from the vehicle and replaced it
with a broken one.
This conclusion in my view cannot be said to have been far-fetched,
particularly since on the applicant’s
version, entrance into
the yard was prohibited or strictly controlled.
[30]
The only objective proven facts were that Nhambe was working on the
vehicle, had ordered and received a new door handle
when repairing
the vehicle, and upon completing the job, the vehicle was parked for
over a month in the yard as a result of the
national lock-down. What
this means is that there are effectively possible two scenarios from
which plausible inferences could
be drawn. The first is that contrary
to Nhambe’s contentions, the new part was not fitted into the
vehicle as at the time
he had completed the repairs and the vehicle
it was parked in the yard. If this is indeed the case, an inference
to be drawn would
be that he had not replaced the old door handle or
if he did, he had replaced it with an old one. As to what had
happened to the
new part is a matter of speculation in the absence of
any evidence that he had left the premises with the new part. On the
legal
principles set out elsewhere in this judgment, t
he
process of inferential reasoning cannot be made from that
speculation, as it cannot be consistent with all the proved facts.
[31] The
second scenario is that Nhambe did indeed fit in the new part in the
vehicle, which was however removed at some stage
during the absence
of everyone at the premises or the yard during the one month of
lock-down as the Commissioner had found. There
was no evidence placed
before the Commissioner as to whether enquiries were made with the
security personnel left at the premises
during the lock-down period,
to verify that indeed no one accessed the yard area at any time
between the vehicle having been parked
there and when the premises
were opened for business in June 2020. As the Commissioner had in the
absence of any other evidence
concluded that anything could have
happened during the lock-down, and further in the absence of any
evidence to demonstrate that
Nhambe had removed the new part from the
premises, an
inference cannot be drawn that he had
removed it when measured against the probabilities. In the end,
whether the Commissioner relied
solely on the test of balance of
probabilities, or ought to have adopted an inferential reasoning, the
nature of the outcome would
still have remained the same, i.e., that
there was no basis for a finding that misconduct was proven.
[32]
The applicant sought to place emphasis on the fact that Nhambe had
suggested to Mane that he would pay for the part,
and contended that
this was an admission of guilt. This contention is misplaced in that
what Nhambe had said was that he merely
meant to save his job, not
that he admitted guilt. In any event, this issue was not even raised
with him during his cross-examination.
It was instead raised
with Samson in his evidence. At no stage was it ever put to Nhambe
that his offer to pay for the part
or be issued with a warning was an
admission of guilt, and it was not for the Commissioner nor for this
Court to drawn negative
inferences from his offer to pay for the
part.
[33]
The applicant further alleged that the Commissioner had made a
finding that it (applicant) failed to prove that the trust
relationship with Nhambe was broken down. This is not correct from
the reading of the award. All that the Commissioner had found
was
that the applicant failed to discharge the onus to prove the
substantive fairness of the dismissal, and further that it failed
to
prove that Nhambe was the person responsible for removing the vehicle
part.
[34]
Even if the
issue of a broken trust relationship was to be addressed, it could
only have arisen where a finding was made that Nhambe
had indeed
committed the alleged misconduct. Even then, on the principles set
out in
Impala
Platinum Ltd v Jansen and Others
[8]
,
whether a trust relationship is broken or not does not require
evidence to be led in that regard. It is the gravity of the alleged
offence that is determinative of whether a trust relationship was
intact or not, and whether a sanction of a dismissal was appropriate.
These questions did not arise in this case in view of the fact that
the applicant had not discharged its onus in demonstrating
that the
allegations of dishonesty or attempted theft were proven.
[35]
In the end, I am satisfied that
in
line with the approach in
Goldfields
[9]
,
the Commissioner
dealt
with the dispute before her with the minimum of legal formalities,
and employed a process that gave all the parties a full
opportunity
to have their say in respect of that dispute. The Commissioner
further properly identified and understood the nature
of the dispute
she was required to arbitrate, and dealt with the substantial merits
of the dispute. Based on the evidence before
her, the Commissioner
thus arrived at a decision that cannot be said to be entirely
disconnected with the evidence, or was unsupported
by any evidence,
and/or involved speculation by her.
Clearly
the decision arrived at is one t
hat
another decision-maker could reasonably have arrived at based on the
material before her. It follows that the arbitration award
is
unassailable and the review application ought to be dismissed.
[36]
Costs in this Court do not follow the result as suggested by
the applicant. Costs are determined in accordance with the
requirements
of law and fairness as dictated by the provisions of
section 162 of the LRA.
[37]
Nhambe was compelled to defend his favourable award inasmuch
as the applicant was entitled to approach the Court with its review.
Nhambe as submitted, is however out of pocket when he had to defend
his favourable award, and in circumstances where there that
award was
unassailable. There was further no suggestion that he had found an
alternative means of income since 2020 to have been
able to fund his
litigation. In the circumstances, the requirements of law and
fairness dictate that the applicant be burdened
with the costs of
this application.
[38]
Accordingly, the following order is made;
Order:
1.
The application to review and set aside the arbitration award under
case number MINT 72438 issued by the second respondent is dismissed
with costs.
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Ad. TM Sadike, instructed by
Oosthuizen, Du Toit, Berg & Boon (ODBB) Attorneys.
For
the First Respondent: Adv. N Jongani instructed by Mphatlalazana
Attorneys.
[1]
Pages
64 – 70 of the Index to the Record.
[2]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC) at para 110. See also
Herholdt
v Nedbank Ltd and Congress of South African Trade Unions (Amicus
Curiae)
[2013] ZASCA 97
;
2013 (6) SA 224
(SCA);
[2013] 11 BLLR 1074
(SCA);
(2013) 34 ILJ 2795 (SCA) at para 25, where it was held;
“…
A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145 (2)(a) of the
LRA. For a defect in the conduct of proceedings to amount to a gross
irregularity as contemplated in section 145 (2)(a)
of
the
LRA,
the
arbitrator
must
have misconceived
the
nature
of the enquiry
or arrived at an unreasonable result. A result will only be
unreasonable if it is one that a reasonable arbitrator
could not
reach on all the material that was before the arbitrator. Material
errors of fact, as well as the weight and relevance
to be attached
to particular facts, are not in and of themselves sufficient for an
award to be set aside, but are only of any
consequence
if
their effect is to render the outcome unreasonable.
[3]
At
para 13.
[4]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at para [20]
[5]
See
page 160 of the transcribed record at lines 11 – 20, and page
161, lines 6 – 7.
[6]
[2022] ZALAC 100
; (2022) 43 ILJ 1794 (LAC);
[2022] 10 BLLR 934
(LAC)
at para 17 – 18.
[7]
See
AA
Onderlinge Assuensie Assosiasie Bkp v De Beer
1982 (2) SA 603
(A); See also
S
A Post Office v Delacy and Another
2009 (5) SA 255
(SCA) at para 35, where it was held;
‘
The
process of inferential reasoning calls for an evaluation of all the
evidence and not merely selected parts. The inference
that is sought
to be drawn must be “consistent with all the proved facts.
If it is not, then the inference cannot
be drawn” and it must
be the “more natural or plausible, conclusion from among
several conceivable ones” when
measured against the
probabilities.
’
[8]
[2017]
4 BLLR 325
(LAC)
at
paragraphs 13 and 15.
[9]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2013] ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at
para 20.