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[2024] ZALCJHB 173
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DSV South Africa (Pty) Ltd v Koekemoer N.O. and Others (JR2552/21) [2024] ZALCJHB 173 (26 April 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR2552/21
In
the matter between:
DSV
SOUTH AFRICA (PTY) LTD
Applicant
And
WILLEM
KOEKEMOER
N.O.
First
Respondent
NATIONAL
BARGAINING COUNCIL FOR THE
ROAD
FREIGHT & LOGISTICS INDUSTRY
Second
Respondent
BHEKI
LUSENGA
Third
Respondent
ANDRIES
MATLOGA
Fourth
Respondent
Heard:
24 April 2024
Delivered:
26 April 2024
This
judgment was handed down electronically by circulation to the parties
and/or their legal representatives by email. The date
for hand-down
is deemed to be 26 April 2024.
JUDGMENT
MAKHURA,
J
Introduction
[1]
DSV South
Africa (Pty) Ltd (company), brought these proceedings in terms of
section 145 of the Labour Relations Act
[1]
(LRA) to review and set aside the arbitration award (award) issued by
the first respondent (commissioner) on 1 November 2021. In
terms of
the award, the commissioner found the dismissal of the third and
fourth respondents (collectively referred to as employees)
to be
substantively unfair, and ordered the company to reinstate them
without back pay.
[2]
Although the employees filed an intention to oppose the
application,
they did not file an answering affidavit. Both employees attended the
hearing and were given an opportunity to make
oral submissions.
Material
facts
[3]
The third respondent is Bheki Lusenga (Lusenga). He was
employed as a
driver, heavy vehicle articulated. The fourth respondent is Andries
Matloga (Matloga) and he was employed as a general
worker, vehicle
assistant. Both were employed with effect from 1 January 2021.
[4]
On 8 February 2021, the employees were charged with breaching
the
disciplinary code of conduct and unauthorised use of the company
property for their private purpose in that at around 8h00
on 14
January 2021, they:
‘
deviated from
prescribed route (as confirmed in your attached statement) by
visiting Prime-serve H/O in Greenstone JHB without authorisation.
As
a result of this unauthorised deviation, you have breached DSV Code
of Conduct and remedial action would be taken against you
in this
regard.’
[5]
The charge was preceded by an investigation where both
employees made
written statements. In his written statement dated 25 January 2021,
Lusenga stated that:
‘
On the 14
th
of January 2021 on my way to Heidelberg I pass at Primeserve office
to pick up my retirement forms. I made a mistake of not asking
a
permation (sic) on my manager’.
[6]
Matloga’s statement, also dated 25 January 2021,
read as
follows:
‘
On the 14/01/2021
I pass at prime serv to pick up my retirement form. That day we use
N3 to Heidelberg. I made a big mistake without
let my manager know
about that. (sic)’
[7]
At the disciplinary hearing, the employees pleaded guilty.
Matloga
apologised for his conduct and Lusenga acknowledged that he made a
poor decision. The employees were dismissed on 17 February
2021.
The
arbitration proceedings and award
[8]
The employees referred an unfair dismissal dispute to
the second
respondent, the National Bargaining Council for the Road Freight and
Logistics Industry (NBCRFLI).
[9]
During arbitration proceedings, both employees testified.
They
confirmed that they stood by their respective statements, that they
were guilty, that they made a mistake and apologised.
The employees
also raised an inconsistency argument. They testified that they found
other employees at Primeserv who deviated from
their routes but they
were not dismissed.
[10]
The company led the evidence of Ezael Manyeke (Manyeke). His evidence
was that
the employees understood the risk of deviation and that even
though the company suffered no harm, the employees created a risk for
potential harm and that the trust relationship has broken down.
Manyeke did not work with the employees. The company disputed
inconsistency and contended that there were other employees who were
dismissed for the same reason.
[11]
In his analysis of the evidence, the commissioner found that the rule
contravened
by the employees is an important one. He considered the
fact that the employees pleaded guilty, demonstrated remorse and
apologised.
[12]
The commissioner found that committing a serious offence does not
axiomatically
lead to dismissal. The totality of the circumstances
must be considered. In other words, the commissioner must consider,
as a separate
enquiry after a finding of guilt, whether the sanction
of dismissal was appropriate.
[13]
With
reference to the various case laws, the fact that the company did not
suffer harm, the Code of Good Practice
[2]
which places a high premium on corrective measures being followed
before a sanction of dismissal is imposed, the duration of the
employees’ employment
vis-à-vis
the alleged regular meetings conducted by the company where the
serious nature of the offence of deviation was allegedly repeatedly
emphasised, the commissioner found that the sanction of dismissal was
unfair and ordered the company to reinstate the employees.
[14]
The commissioner ordered no back pay. This was, according to the
commissioner,
a mark of emphasising the importance of the rule
contravened that was contravened by the employees.
The
review grounds
[15]
The company seeks to impugn the award on three grounds. First, it
contends
that the commissioner exceeded his powers or committed
misconduct or failed to apply his mind when he found that the company
applied
discipline inconsistently.
[16]
Second, the company criticises the finding that dismissal was not an
appropriate
sanction. The company contends that in finding the
dismissal to be inappropriate in the circumstances where the
employees are guilty
of serious misconduct, the commissioner has
given the employees the “get out of jail free card”. The
commissioner is
criticised for ignoring that the employee were
“
trained and acknowledged in writing that they understood
how important it is to not deviate from the approved route
”.
[17]
The third ground is a reiteration of the second ground. It is an
attack on
the appropriateness of sanction.
The
review test
[18]
The
Constitutional Court has set out the test for the review of
arbitration awards.
[3]
The
Court held that an award would be reviewable when it is one “
that
a reasonable decision-maker could not reach”
.
[4]
[19]
The
Labour Appeal Court in
Fidelity
Cash Management Services v Commission for Conciliation, Mediation and
Arbitration and Others
,
held that this is a stringent test and that it would not be often
that an award is found to be one which a reasonable decision-maker
could not have made.
[5]
[20]
In
Makuleni
v Standard Bank of South Africa and Others
,
[6]
Sutherland JA explained that:
‘
The
test for reviewing and setting aside an award of the CCMA is whether
the decision reached by the commissioner is one that no
reasonable
person could have reached. The proposition has been articulated so
often that it is now trite.’
Evaluation
[21]
In
Hulett
Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and
others,
[7]
the Labour Court, per Molahlehi J (as he then was), observed that:
‘
[45]
It would in my view be unfair for this court to expect the applicant
to take back the employee when
she has persisted with her denials and
has not shown any remorse. An acknowledgment of wrongdoing on the
part of the employee would
have gone a long way in indicating the
potential and possibility of rehabilitation including an assurance
that similar misconduct
would not be repeated in the future.’
[8]
[22]
An
employee who fails to acknowledge his wrong, show no remorse and is
unapologetic about his misconduct and in fact defend his
misconduct
is clearly not prepared to be rehabilitated. Contrary to other
judgments where employees showed no remorse and pleaded
not
guilty,
[9]
the employees in
casu
,
at the first opportunity presented to them during the investigation
of the allegation, were truthful about their conduct and acknowledged
that they made a mistake. At the second opportunity during the
disciplinary hearing, they owned up to their misconduct and once
again apologised. At the third opportunity during arbitration
proceedings, they continued to show that they were remorseful and
again apologised. They were very consistent.
[23]
The review grounds have no merit. The
inconsistency ground is hopeless because the commissioner did not
find that there was inconsistency
in the application of discipline.
The commissioner found that the company “
proved
the importance of this rule and the strict disciplinary approach they
apply
”. Later in the award, the
commissioner observed that commissioners have been warned not to
apply the inconsistency principle
willy-nilly and that they must
exercise caution. He made no finding thereafter, other than making
reference to case law. This much
was conceded by Mr Nel, acting on
behalf of the company, during the hearing.
[24]
Regardless, the commissioner took into
account primarily the employees’ remorseful conduct, their
length of service which
was only two weeks, and the purpose of the
Code of Good Practice and found that dismissal was not an appropriate
sanction. The
onus remained on the company to show that the sanction
of dismissal was appropriate. The company was well aware that the
employees
had been remorseful from the first day. There was no
evidence to suggest that the employees’ remorse or apology was
not genuine
and that the trust relationship had irretrievably broken
down. Where the employees pleaded guilty to the charge, showed
remorse
and apologised, the employer must do more than allege, as the
company did in this case, that the trust relationship has broken
down. It must lead for the reasons set out above, the second and
third grounds stand to be rejected.
[25]
Mr
Nel submitted that the award of reinstatement without back pay is not
permitted in terms of section 193 of the LRA. Section 193(1)
of the
LRA provides that where dismissal is found to be unfair, the court or
commissioner may order reinstatement or re-employment
or
compensation. Whether the reinstatement award is with full or limited
back pay (that is, the retrospectivity of the reinstatement)
is not
dealt with in section 193 of the LRA. This is a discretionary issue
to be decided by the commissioner or court.
[10]
This submission does not take the matter any further and does not
assist the company in its quest to set aside the award.
[26]
Having considered the above, I am not
persuaded that the award falls outside the bands of reasonableness.
The findings of the commissioner
have been substantiated with reasons
and this court must resist any temptation of dealing with this review
application as an appeal.
The commissioner has not committed the
errors or misconduct as alleged or at all that warrant the setting
aside of the award. The
application must therefore fail.
[27]
In the premises, the following order is
made:
Order
1.
The application is dismissed.
2.
There is no order as to costs.
M. Makhura
Judge of the Labour Court
of South Africa
Appearances:
For
the Applicant:
Adv.
A.J. Nel
Instructed
by:
Darren
Ledden Incorporated
For
the 3
rd
& 4
th
Respondents:
In
person
[1]
Act
66
of 1995, as amended.
[2]
Labour Relations Act 66 of 1995
– Schedule 8: Code of Good
Practice: Dismissal.
[3]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007]
ZACC 22
; (2007) 28 ILJ 2405 (CC).
[4]
Ibid
at para 110.
[5]
[2007] ZALAC 12
; (2008) 29 ILJ 964 (LAC) at para 100.
[6]
[2023] ZALAC 4
; (2023) 44 ILJ 1005 (LAC) at para 2.
[7]
[2007] ZALC 93
;
(2008)
29 ILJ 1180 (LC) at para 45.
[8]
Ibid
at
para 45.
[9]
Timothy
v Nampak Corrugated Containers (Pty) Ltd
[2010]
8 BLLR 830
(LAC); (2010) 31 ILJ 1844 (LAC);
Autozone
v Dispute Resolution Centre of Motor Industry and others
[2019] 6 BLLR 551
(LAC); (2019) 40 ILJ 1501 (LAC).
[10]
See:
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and others
(2010) 31 ILJ 273 (CC);
[2010] 5 BLLR 465
(CC).