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2024
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[2024] ZALCJHB 191
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SAMWU obo Kgware v Mangaung Metropolitan Municipality and Others (JR1671/21) [2024] ZALCJHB 191 (10 May 2024)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
No:
JR1671/21
In
the matter between:
SAMWU
OBO TJ KGWARE
Applicant
and
MANGAUNG
METROPOLITAN MUNCIPALITY
First
Respondent
SA
LOCAL GOVERNMENT BARGAINING COUNCIL
Second Respondent
JAN
LE FLEUR
N.O.
Third Respondent
Heard
:
8 May 2024
Delivered
:
10 May 2024
Summary:
Application to review and set aside arbitration award.
Material errors vitiating the award. Outcome was one no reasonable
decision
maker could have arrived at.
JUDGMENT
DANIELS J
Introduction
[1]
The applicant brought an application to review and set aside an award
issued by the third respondent. The review was opposed
by the first
respondent.
[2]
The matter was enrolled for hearing, on the opposed motion roll, on 8
May 2024. When the first respondent’s representatives
failed to
arrive, I directed my secretary to inspect the court file to
determine whether the notice of set down had been properly
served.
When my secretary confirmed that the notice of set down had been
properly served, I directed her to telephone first respondent’s
attorney and advise him or her that the matter would stand down to
12h00 to allow a member of the first respondent’s legal
team
(counsel was on brief) to attend court. The first respondent’s
attorney was phoned, at approximately 10h30, and informed
that the
application would be heard at 12h00. First respondent’s
attorney informed my secretary that she was unavailable.
When there
was still no appearance at 12h00, the application was argued in the
absence of the first respondent. While the court
papers filed by the
first respondent was taken into consideration, I did not have the
benefit of oral argument from first respondent.
[3]
For ease of reference, the first respondent will be referred to as
“the Municipality” or “the employer.”
The
third respondent, the arbitrator in the dispute before the Bargaining
Council, will be referred to as “the commissioner”
or
“the arbitrator.”
Background
facts
[4]
The applicant worked as a truck driver in the Solid Waste Department
of the Municipality, where he was employed for 26
years before the
alleged misconduct. The applicant had a clean record and had never
been summoned to a disciplinary hearing.
[5]
The applicant was driving a tipper truck in T Section (Botshabelo)
when the truck capsized and incurred damage (the “incident”).
The applicant was charged with:
5.1
Dishonesty
[1]
in that he allegedly misused the Council’s truck (hereafter the
“
first
charge
”),
5.2
Gross
negligence in that he damaged the Council’s truck (hereafter
the “
second
charge
”),
[2]
5.3
Gross
dishonesty
[3]
in that, on 10
October 2018, he failed to report the accident hereafter the “
third
charge
”).
[6]
At his
disciplinary hearing, the applicant pleaded guilty to driving the
truck and damaging it but he denied the balance of the
charges.
Importantly, at the hearing, the applicant gave a detailed
explanation of the incident. The applicant explained that he
had been
instructed by the senior supervisor, Mr Nkikane (hereafter “Mr
N”) to use the truck to move (and then off
load) gravel to a
particular area because it was muddy and a funeral would be held
there over the weekend.
[4]
Unfortunately, the truck capsized, and damage resulted to the truck
(the “incident”).
[7]
The applicant was found guilty of all charges and dismissed.
Arbitration
proceedings
[8]
A brief survey of the evidence is necessary:
8.1 The
Municipality called Mr Nkikane (or “Mr N”) as its first
witness.
8.1.1
Despite
being aware of the applicant’s version (that he had instructed
the applicant to use the tipper truck), Mr N did not
testify about
whether he had instructed the applicant to use the truck on that
day.
[5]
8.1.2 Mr N
testified that there are several acting managers at any one time, who
are appointed on a rotational basis. Mr
N confirmed that Mr Tladi had
acted as supervisor previously, but he was unsure whether Mr Tladi
was acting as supervisor at the
time of the incident. In the
circumstances, Mr N did not deny applicant’s version - that Mr
Tladi was his immediate supervisor
on the day.
8.1.3
Mr N
testified that he discovered the damage to the truck about a week
after the incident when he saw Mr Tshego and the applicant
trying to
repair a broken mirror on the truck. Mr N testified that one of these
two individuals told him that the truck had been
parked in the yard,
the brake got loose, and it rolled into a TLB machine. Mr N could not
recall who said this.
[6]
8.1.4 Mr N
testified that Mr Tladi forwarded to him the photographs that he (Mr
Tladi) had taken of the incident. Mr N did
not question Mr Tladi
about why he had not disclosed the photographs sooner. Mr Tladi was
never charged for failing to report the
incident to Mr N.
8.1.5 Mr N
confirmed that the correct procedure following an accident is to
report it to your immediate supervisor, who must
then report the
accident to the senior supervisor. He confirmed that, in this case,
if Mr Tladi was indeed the immediate supervisor
it was his
responsibility to report the accident to him (Mr N). In addition, Mr
N confirmed that if Mr Tladi was indeed the immediate
supervisor, the
applicant was correct to report the accident to him (Mr Tladi).
8.2
The
applicant testified that Mr N had instructed him to use the truck to
move gravel to a particular area.
[7]
The truck capsized, and damage to the truck resulted. The applicant
says he asked Mr Tshego to inform Mr Tladi of the incident.
Mr Tshego
did so and both he and Mr Tladi attended the scene thereafter. Mr
Tladi took photographs of the accident scene. The applicant
testified
that Mr Tladi was an acting supervisor at the time, and his immediate
supervisor.
8.3 Next, the
applicant called a shop steward of his union, SAMWU. The shop steward
testified that two other employees had
been involved with similar
accidents, but they were not dismissed and instead were permitted to
pay for the damages.
Legal
principles and analysis
Observations
of the award and the evidence
[9]
Having perused the pleadings, the record, and the submissions, I am
compelled to make the following observations:
9.1 The
first
charge
was that the applicant acted
dishonestly
by
misusing the truck. In her analysis of the evidence, the arbitrator
does not consider any of the evidence in relation to the
first
charge. It is unclear whether the arbitrator believed that the
applicant was guilty of this charge.
9.2 The
second
charge
was that the applicant was
grossly negligent
by
damaging the truck. The arbitrator, once again, does not explain
whether, or why, the applicant was guilty of this charge.
Irrationally, the Municipality’s view was that the applicant
was acting intentionally or negligently.
9.3 The
third
charge
was that the applicant was
grossly dishonest
by
failing to report the accident. In this regard:
9.3.1 The evidence
did not establish that the applicant did not report the accident. It
only established that the applicant
did not report the accident in
writing, and he did not report the accident to Mr N.
9.3.2 The
Municipality could not deny that the accident had been reported to Mr
Tladi, given that he attended at the scene,
and he took photographs
of the scene (which he sent to Mr N).
9.3.3 The onus was
on the Municipality, as the employer, to prove the
alleged
misconduct. To do so, it was required to present evidence that the
applicant failed to report the incident to his immediate supervisor.
9.3.4 Mr N
testified that Mr Tladi had acted as a supervisor though he could not
recall when. In the circumstances, the Municipality
could only prove
the identity of the applicant’s supervisor by presenting
documentary evidence, or by calling Mr Tladi. It
did neither.
9.4 In the award,
the arbitrator records:
[51]
The Applicant did
not deny the evidence of his senior supervisor. Mr Nkikane
(testified) that (he)
became aware of the accident two
weeks after the incident
. The hearing minutes collaborated
(sic) the Respondent’s witness,
Mr Nkikane’s
evidence, that the Applicant informed him that the truck was parked
in the yard and the brakes were not engaged
and the truck moved and
bumped into a TLB tractor
. (Own emphasis)
9.5 Paragraph 51
of the award directly contradicts the evidence presented. Mr N
testified that he became aware of the incident
about one week later.
Secondly, Mr N testified that he could not recall who told him that
the truck was parked in the yard, the
brake was not engaged, and the
truck moved, and bumped into a TLB.
9.6 Importantly,
in relation to the second charge, the arbitration award and record
does not reveal how the applicant was
alleged to have been negligent.
The arbitrator does not set out why the Municipality alleged
applicant was negligent and why the
evidence supported such finding.
Grounds
of Review and analysis
[10]
In
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[8]
the court held that the appropriate test to be applied in relation to
reviews of arbitration awards issued by the CCMA or Bargaining
Council is whether the outcome is one which no reasonable
commissioner could reach on the material before him or her.
[11]
The
Sidumo
test has since been refined. In
Head
of the Department of Education v Mofokeng and others
[9]
the LAC held:
[30]
The
failure by an arbitrator to apply his or her mind to issues
which are material to the determination of a case
will usually be
an irregularity…. before such an irregularity will result in
the setting aside of the award, it must in
addition reveal a
misconception of the true enquiry or result in an unreasonable
outcome.
[31]
… examination of interrelated questions of rationality,
lawfulness and proportionality, pertaining to the purpose, basis,
reasoning or effect of the decision, …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 light of the issues and the 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…
the
arbitrator must not misconceive the inquiry or undertake the inquiry
in a misconceived manner. There must be a fair trial of
the issues
.
[32]
…Review is not permissible on the same grounds that apply
under PAJA. Mere errors of fact or law may not be enough to
vitiate
the award. Something more is required. To repeat:
flaws in the
reasoning of the arbitrator, evidenced in the failure to apply the
mind, reliance on irrelevant considerations or the
ignoring of
material factors etc must be assessed with the purpose of
establishing whether the arbitrator has undertaken the wrong
enquiry,
undertaken the enquiry in the wrong manner or arrived at an
unreasonable result
. …misconceived inquiry or a decision
which no reasonable decisionmaker could reach on all the material
that was before him
or her.
[33]
…In the final analysis, it will depend on the 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….”
(Own
emphasis)
[12]
With that in mind, I now turn to the grounds of review. In this
matter, the applicant submitted that:
12.1 The
arbitrator did not consider whether the applicant was acting on
instructions from Mr N. This was, of course, fundamental
to whether
the applicant was guilty of the charge of using the truck without
authorisation.
12.2 The
arbitrator drew a negative inference by requiring the applicant to
call Mr Tladi - when the third respondent should
have called him and
was best placed to do so. Of course, although the applicant did not
state as much, this approach had the effect
of requiring the
applicant to prove his innocence on the third charge. The arbitrator
erred by rejecting the applicant’s
evidence (that Mr Tladi was
his supervisor) as hearsay evidence.
12.3 The
arbitrator failed to take into consideration that the applicant had
twenty-six years of unblemished service
.
12.4 The
arbitrator incorrectly found that the applicant had informed Mr N
that the truck was parked in the yard, without
the brake engaged, and
it had rolled into the TLB machine, when there was no evidence to
this effect.
First
charge: applicant acted dishonestly by misusing the truck
[13]
The commissioner’s analysis of the evidence, found in
paragraphs 48 to 59 of the award, is particularly wanting.
[14]
If the
commissioner found the applicant guilty of the
first
charge
(which was unclear) she provided no reasons for doing so. This was a
material dispute of fact she was required to resolve, using
the
established tests, explained in detail in
Stellenbosch
Farmers Winery Group and another v Martell & Kie SA and
others
.
[10]
[15]
The issue on review is not whether the commissioner reached the
correct decision, but whether she considered and determined
the
material factual disputes, by reference
inter alia
to the
probabilities and the credibility of the witnesses. In the absence of
such analysis, the outcome cannot be reasonable. Further,
the
applicant was deprived of his right to a fair trial of the issues.
The
second charge: the applicant was grossly negligent by damaging the
truck
[16]
The charge sheet does not explain why the applicant allegedly acted
negligently; and the Municipality presented no evidence
in this
regard. The commissioner does not explain whether, in her view, the
applicant was guilty of the charge or why. Does one
need to say more?
[17]
If the commissioner had considered all the evidence, the only
reasonable outcome would have been that the applicant was
not guilty
of the first and second charges:
17.1 The
Municipality presented no evidence that the applicant dishonestly
misused the truck. Mr N did not testify on this
issue.
17.2 The
Municipality also presented no evidence that the applicant was
negligent in his driving of the truck. Logically,
the mere fact that
the accident occurred cannot also be proof of negligence.
The
third charge: applicant was grossly dishonest by failing to report
accident
[18]
This was the only charge the commissioner paid any attention to. A
fair and proper analysis of the evidence was required.
Had the
commissioner done so, she would have taken the following into
consideration:
18.1 The employer
bore the onus of proving that the dismissal was substantively fair.
This required it to prove, on a balance
of probabilities, that the
applicant failed to report the incident to his immediate supervisor.
This required it to prove the identity
of the supervisor. The
Municipality was aware of the applicant’s version from the
disciplinary hearing. It should therefore
have called Mr Tladi to
testify.
18.2
The
Municipality’s only witness on this issue, Mr N, was unsure
whether Mr Tladi was the applicant’s immediate supervisor
on
the day.
[11]
18.3 Even if the
applicant’s evidence on the issue was hearsay, which I do not
accept, this cannot alter the fact that
the Municipality presented no
clear evidence as to the identity of the applicant’s immediate
supervisor (the evidence was
clear that: (1) Mr N was the senior
supervisor, not the immediate supervisor, and (2) the proper process
was for the accident to
be reported to the immediate supervisor who
would then report to the senior supervisor).
18.4 The applicant
readily conceded that he had not submitted a written report of the
incident. He testified that nobody
asked him to submit a written
report. Regardless of whether the applicant should have been aware
that a written record was required,
his failure to submit a written
report is not evidence of dishonesty.
[19]
In relation to the
third charge
, the Municipality was required
to prove that the applicant failed to report the accident to his
immediate supervisor. To do so,
it called Mr N. However, it turned
out that Mr N was not the applicant’s immediate supervisor. In
addition, Mr N could not
say whether Mr Tladi was the applicant's
immediate supervisor at the time. Accordingly, on this evidence, the
evidence dismally
failed to establish that the applicant was guilty
of the charge.
A
fair and appropriate sanction
[20] The applicant
submitted that the commissioner paid no attention to the common cause
evidence that the applicant had
twenty-six years
of
service
, and a clean disciplinary record. In this, the applicant
is correct. There is no indication in the award that this was
considered
by the commissioner.
[21]
There can be no doubt that length of service, particularly a long
period of service, plays an important role in determining
the
fairness of the sanction of dismissal. Length of service not only
reflects the extent of the employee’s loyalty, but
it also
impacts on the question of whether a lesser sanction may bring about
a change of behaviour.
[22]
In
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[12]
the Constitutional Court set out the approach to be followed:
[78]
In approaching
the dismissal dispute impartially
a commissioner will take
into account the totality of circumstances.
He or she will
necessarily take into account the
importance of the rule
that
had been breached. The commissioner must of course
consider the
reason the employer imposed the sanction of
dismissal
, as he or she must take into account the
basis
of the employee's challenge to the dismissal
. There are
other factors that will require consideration. For example, the
harm
caused by the employee's conduct
, whether
additional
training
and instruction may result in the employee not
repeating the misconduct, the effect of dismissal on the employee and
his or her long-service record
. This is not an
exhaustive list.
[79]
To sum up. In terms of the LRA, a commissioner has to determine
whether a dismissal is fair or not.
A commissioner is not given
the power to consider afresh what he or she would do, but simply to
decide whether what the employer
did was fair. In arriving at a
decision a commissioner is not required to defer to the decision of
the employer. What is required
is that he or she must consider all
relevant circumstances
.
(Own
emphasis)
[23]
Despite her duty to do so, the commissioner failed to take into
account the totality of the circumstances. Instead, she
improperly
deferred to the decision of the employer.
Commissioner
ignored material evidence
[24]
In his
evidence, Mr N could not recall
[13]
whether it was the applicant who informed him that the truck was
parked in the yard, the brake was not engaged, and it rolled into
the
TLB. Despite this, the commissioner found that Mr N’s evidence
was that the applicant had advised him of this.
Conclusion
[25]
In light of what is set out above, the award is one no reasonable
decision maker could reach on all the material before
her. There can
be little doubt that the commissioner’s failure to consider
material evidence before her had a significant
distorting impact on
the outcome. The applicant was denied a fair trial of the issues. The
award must be reviewed and set aside.
[26]
The applicant presented the court with a complete record of the
arbitration. Though cognisant that the LRA requires that
administrative tribunals, such as the Bargaining Council and the
CCMA, must determine the fairness of dismissals for misconduct,
I
cannot ignore one of the primary objects of the LRA - the expeditious
resolution of labour disputes. In the circumstances, a
remittal would
undermine the effective resolution of this dispute.
[27]
In the circumstances, I make the following order:
27.1 The
arbitration award issued by the third respondent under case reference
FSD092005 is reviewed and set aside.
27.2 The
arbitration award under case reference FSD092005 is replaced with an
order that: (1) the dismissal of the applicant
was substantively
unfair, (2) the applicant is retrospectively reinstated into the
employ of the first respondent with effect from
the date of his
dismissal, (3) the applicant is directed to report for duty at the
first respondent as soon as reasonably possible.
27.3 There is no
order as to costs.
RN Daniels
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
Adv T Du Preez
Instructed
by:
Kramer Weihmann Inc
For the First
Respondent: No appearance
[1]
The charge did not reveal in what manner the applicant was allegedly
dishonest.
[2]
The charge did not reveal in what manner the applicant was allegedly
negligent.
[3]
The charge did not reveal in what manner the applicant was allegedly
dishonest
[4]
Transcript p183 line 24 to p184 line 20
[5]
One would have expected him to testify about this issue given that
the applicant had raised it during the disciplinary hearing.
[6]
Transcript p136 lines 10 – 24. According to Mr Nkikane, he had
been fed a false version. Incidentally, no disciplinary
action was
taken against Mr Tshego, one of the potential offenders.
[7]
Transcript p183 line 23 to p184 line 13
[8]
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC)
[9]
[2015]
1 BLLR 50 (LAC)
[10]
2003
(1) SA 11
(SCA) para 141
[11]
Transcript
page 143 line 12 – 19
[12]
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC) at para 78
[13]
Mr N:
They told me that the truck, the truck was parked in the yard and
then it probably happened that the, the bricks (sic) of
the truck
got loose (sic). And then the truck hit the TLB machine that was
parked in front of the truck.
Commissioner:
When the witness testify, when he said he was told, he mention two
people that was standing next to the truck which
is Mr Tshego and
the applicant, he must tell us specifically who said that.
Mr
N: Because I have taken an oath and also having to tell the truth,
but because the incident happen in 2018,
I cannot remember
exactly who is the one who told me between Mr Kgware and Mr Tshego
.”