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[2014] ZALAC 19
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Solid Doors (Pty) Ltd v Hanekom N.O and Others (CA19/2012) [2014] ZALAC 19 (30 April 2014)
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REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, CAPE TOWN
NOT REPORTABLE
CASE NO: CA19/2012
In
the matter between:
SOLID
DOORS (PTY)
LTD
Appellant
and
COMMISSIONER
JP HANEKOM N.O.
First Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
&
ARBITRATION
Second Respondent
ANDRÉ
AFRICA
Third Respondent
Heard:
10 September 2013
Delivered:
30 May 2014
Summary: Review of
arbitration award- employee dismissed for gross negligence-
commissioner finding employee misconducted himself
but dismissal
substantively unfair- commissioner empowered to decide on the
fairness of a dismissal- award meeting the reasonableness
test-
Labour Court judgment upheld- appeal dismissed.
Coram: Waglay JP,
Dlodlo AJA and Francis AJA
JUDGMENT
DLODLO
AJA
[1]
The appellant in this matter unsuccessfully brought an application
before the court
a quo
wherein it sought to have the
arbitrator’s award reviewed and set aside. The arbitrator found
that the sanction of dismissal
imposed on the Third Respondent (Mr
Africa) had been substantively unfair and he ordered reinstatement
(not retrospectively) coupled
with a final written warning.
[2]
The appellant is a manufacturer of timber doors and mouldings. Mr
Africa was employed as a dispatch manager at the appellant’s
Cape Town branch since October 2002. It was Mr Africa’s duty to
ensure that all deliveries are dealt with in accordance with
the
appellant’s procedures. The appellant’s financial
department situated at its head office in Johannesburg approves
sales
orders by granting credit facilities to customers. Once the credit
has been approved, employees located at any branch where
the goods
are purchased would deliver the goods to the delivery address.
[3]
In the case that led to the dismissal of Mr Africa, a company called
Security and Fire Projects (Pty) Limited (“SFP”)
had
applied for credit and was granted such credit by the appellant’s
financial manager on a number of occasions. Goods so
purchased had
been collected either at the appellant’s branch or delivered to
SFP. However, it appears that although SFP
was an existing company, a
fictitious (bogus) company had applied for credit using SFP’s
credential. The financial manager
approved the credit to this bogus
company for sales orders to the value of R135 000. The bogus customer
had provided a delivery
address of 121 Stock Road Philippi. It was
then the duty of Mr Africa to dispatch the purchased goods to the
delivery address stated
on the invoice.
[4]
On 11 November 2009, a truck driver (“Mr Kume”) was
despatched to deliver timber products purchased on credit by
SFP. The
delivery address provided on the invoice was […...]. Mr Kume
could not find this address and he consequently telephoned
Mr Africa.
The latter apparently in turn telephoned the customer. The customer
undertook to send a representative who would show
Mr Kume where the
goods were to be delivered.
[5]
According to the evidence, the customer thereafter telephoned Mr Kume
directly advising him to offload the goods under trees
next to the
Philippi train Station in the same Stock Road. That is what Mr Kume
did. Subsequently to the delivery, there were other
credit purchases
made by the same customer but these were loaded by the latter in its
own transport. As mentioned above, the credit
department of the
appellant in Johannesburg had approved a bogus credit application by
SFP. It was pursuant to the approval of
this credit application that
SFP had ordered timber products from the appellant which Mr Kume was
to deliver to [….....],
Cape Town.
[6]
After the appellant discovered that SFP was a bogus company it
charged, Mr Africa and dismissed him for gross negligence on
the
basis that he instructed Mr Kume to deliver the goods to a bogus
customer at a place other than the business address stated
in the
customer’s credit application form. The aggregate loss suffered
both as a result of the delivery of timber products
to an
unauthorized address as well as the subsequent collections of timber
products referred to above amounted to R135 000.
[7]
Following his dismissal, Mr Africa referred an unfair dismissal to
the CCMA. The arbitrator found that the sanction of dismissal
had
been substantively unfair. On review, the court
a quo
held
that the appellant failed to show that the arbitrator’s award
was one that a reasonable decision-maker could not have
made and it
proceeded to dismiss the review application and ordered that each
party was to pay its own costs.
[8]
It is trite law that the test that must be applied in determining
whether an arbitration award should pass musters of judicial
review
under section 145 of the Labour Relations Act 66 of 1995 (“the
LRA”) is that of the constitutional standard
of reasonableness.
The question that needs to be asked and answered is the following:
‘
Is
the decision made by the arbitrator one which a reasonable
decision-maker could not reach?’
[1]
It
was submitted on behalf of the appellant that Mr Africa’s
involvement in the events that led to the delivery of the timber
products to an unauthorized delivery address constituted gross
negligence and not the kind of negligence found by the Commissioner.
It is further contended on behalf of the appellant that Mr Africa
abdicated his responsibility by allowing SFP to telephone Mr
Kume and
arrange an alternative delivery address with him instead of himself
ascertaining the delivery address.
[9]
It is debatable if the conduct of Mr Africa is such that it qualified
to be stigmatized as gross negligence. I say that despite
my
acceptance that the appellant’s policy provides that a driver
who finds himself in circumstances that he cannot find the
delivery
address should return with the load to the depot. The policy of the
appellant explained above should ordinarily be known
to the driver as
well. There was no necessity for Mr Kume to telephone Mr Africa. Upon
failure to find the delivery address, he
simply should have driven
back to the depot with the load in keeping with the provision of his
employer’s policy and would
have reported to Mr Africa what the
position was on arrival at the depot.
[10]
The contention advanced on behalf of the appellant that it is
unlikely that the fraudulent transactions would have taken place
had
Mr Africa questioned SFP about its place of business because he would
have then ascertained that in fact it did not have a
place of
business and that in turn would have alerted him that SFP may be a
bogus or fictitious business, needs to be dealt with.
In the first
place, this is speculation at its best. Nobody knows for a fact what
SFP’s reaction would have been upon being
so questioned.
Perhaps it would have told Mr Africa another lie. It could simply
have used another entity’s business address
in the same way as
it had used another company’s credentials and succeeded in
effectively deceiving the appellant’s
finance department which
approved its credit application. I accept that Mr Africa should have
acted differently. But the contention
being advanced seemingly leaves
out of the equation that it was the appellant’s finance
department that approved the credit
application of this bogus
purchaser. The finance department failed to determine and question
the legitimacy of SFP. Most certainly,
Mr Africa would have failed to
gather that it was a bogus entity on questioning it about its place
of business.
[11]
It must be borne in mind that when SFP purchased timber products from
the appellant’s Cape Town branch seeing that it
had been
granted credit, Mr Africa was entitled to accept that it had been
scrutinized and that is why its credit worthiness had
been approved.
It is wrong to simply brush this aspect aside and contend that had Mr
Africa questioned the delivery address, fraud
would probably have
been averted. It is contended on behalf of the appellant that the
Commissioner did not apply his mind to the
fact that Mr Africa
abdicated his responsibility by not instructing Mr Kume to return
with the goods and instead allowed SFP to
communicate the alternative
address to Mr Kume. I have dealt with this aspect. The truth of the
matter is that the Commissioner
dealt with this aspect and he found
Mr Africa to have been negligent. The Commissioner expressly found
that Mr Africa should not
have left it all to the customer and the
driver to secure delivery at an alternative address and that as a
person in charge of
the dispatch warehouse more was expected of Mr
Africa in ensuring that goods did not fall into the wrong hands. To
end this aspect
one perhaps needs to resort to setting out what was
held by this Court in
Fidelity
Cash Management Service v CCMA
and
Others
[2]
namely:
‘
It
will often happen that, in assessing the reasonableness or otherwise
of an arbitration award or other decision of a CCMA commissioner,
the
court feels that it would have arrived at a different decision or
finding to that reached by the commissioner. When that happens,
the
court will need to remind itself that the task of determining the
fairness or otherwise of such a dismissal is in terms of
the Act
primarily given to the commissioner and that the system would never
work if the court would interfere with every decision
or arbitration
award of the CCMA simply because it, that is the court, would have
dealt with the matter differently….’
[12]
The test is and remains that enunciated by the Constitutional court
in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and
Others
(2007) 281 ILJ 2405 (CC);
[2007] 12 BLLR 1097
(CC). The
onus
of showing that the reasonable decision-maker could not
have decided as the Commissioner did, rests upon the appellant. If
courts
were to substitute the decisions made by commissioners even if
it is apparent that such commissioners considered all deserving
factors placed before them prior to reaching such decisions then the
whole system of dispute resolution on the shoulders of the
CCMA may
be doomed to failure. Importantly, the Commissioner in the instant
matter made factual findings and these findings are
not different
from the facts established by the evidence led on behalf of the
appellant.
[13]
In any event, gross negligence
per se
(not found by the
Commissioner) does not automatically translate to dismissal as
sanction. It remained the duty of the Commissioner
(taking all
relevant factors into consideration) to decide on a fair sanction.
Clearly, it was correct for the Commissioner to
take into account
that the appellant had suffered financial loss partly as a result of
Mr Africa’s negligence and that what
also contributed to the
appellant’s loss is an error made by the latter’s
department responsible for approving credits.
It is true that the
application for credit made by SFP was either not properly
scrutinized or SFP succeeded in fooling the appellant’s
finance
department. Mr Africa is not the only guilty party with regards to
what happened in this matter. Mr Kume was also largely
to blame. How
can a reasonable driver who aware or not of the company policy agree
to offload the timber products near the train
station under the
trees? I mean this was suspicious enough to enable Mr Kume to refuse
to offload. He offloaded the cargo of his
truck and upon arrival at
his workplace he did not even volunteer this information to Mr
Africa. Even though at that time it might
have been too late to save
the situation in that the bogus purchaser could have removed the
goods, it would have given Mr Africa
reason to be alarmed and he
probably could have engaged the police at that time or take some or
other action to try and recover
the cargo.
[14]
Accordingly, in my view, one cannot find fault in the finding by the
court
a quo
that the Commissioner’s decision fell within
“
the range of reasonable outcomes.”
Mr Van As
submitted that Mr Africa displayed no remorse or appreciation of
wrongdoing during the arbitration proceedings. In bolstering
this
submission, Mr Van As contended that the high watermark of Mr
Africa’s exculpatory conduct was his assertion that he
was not
party to the fraudulent transaction. This may very well be said to be
introducing an aspect not raised in the review papers
as the
respondent pointed out. Having read papers that served before the
court
a quo,
I accept that this indeed is a new aspect in that
it was not mentioned and dealt with then. It is trite that a party
which seeks
to review an arbitration award is ordinarily bound by the
grounds contained in the review application. It is not permissible
that
an appellant should raise a new ground of review on appeal. If
that were to be allowed the objective of the LRA to have labour
disputes resolved speedily would be undermined. See:
Cusa v Tao
Ying Metal Industries and Others
[2008] ZACC 15
;
2009 (2) SA 204
(CC).
[15]
The appellant appears to be perturbed by the reinstatement of Mr
Africa. It is in fact
section 193(2)(b)
of the
Labour Relations Act
which
provides that reinstatement should be the primary remedy when a
proper order is considered after the finding has been made that
a
dismissal had been substantively unfair. There is no evidence on
record which establishes that the misconduct Mr Africa was found
guilty of has resulted in an irretrievable breakdown in the
relationship between the appellant (as his employer) and himself (as
an employee). The appeal has no merits and stands to be dismissed.
With regard to costs, the respondent did not seek costs against
the
appellant, should he be successful.
Order
[15]
In the circumstances, I make the following order:
(a)
The Appeal is dismissed.
(b)
There is no order as to costs.
______________
Dlodlo AJA
I agree.
_____________
Waglay JP
I agree.
_____________
Francis AJA
[1]
Sidumo
and Another v
Rustenburg Platinum Mines Ltd and Others
(2007)
281 ILJ 2405 (CC) at para 110.
[2]
[2008] 3 BLLR 197
(LAC) at para 98.