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[2014] ZALAC 85
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SOLID DOORS (PTY) LTD V AFRICA (CA 19/2012) [2014] ZALAC 85 (30 May 2014)
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 121 Stock Road Philippi. 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 121 Stock Road,
Philippi, 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.