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[2017] ZALAC 29
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South African Breweries (Pty) Ltd v Hansen and Others (CA6/2016) [2017] ZALAC 29; (2017) 38 ILJ 1766 (LAC); [2017] 9 BLLR 892 (LAC) (25 May 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: CA6/2016
In
the matter between:
SOUTH
AFRICAN BREWERIES (PTY) LTD
Appellant
and
HEINDRICH
HANSEN
First Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Second Respondent
Hilary
Mofsowitz
N.O
Third Respondent
Heard:
28 February 2017
Delivered:
25 May 2017
Summary:
Dismissal for misconduct for making derogatory comments –
employee dismissed for allegedly
uttering “
Julle kaffirs is
almal donnerse ewe onnosel
” to another employee –
commissioner finding that employer failed to discharge the
onus
that these words were uttered by employee.
Held
that where derogatory and racial language is used in the workplace,
the employer bears the
onus
to prove that the language used by
the employee was objectively derogatory. Employee disputing using
such derogatory words - Matter
resolves around the credibility
finding on the credibility of the various factual witnesses; their
reliability; and the probabilities
– commissioner deferring his
assessment on the credibility of witnesses to the internal
chairperson’s report and the
disputed inter-depot registers -
Evidence demonstrating that had the commissioner assessed the
credibility of the witnesses, he
would have come to the conclusion
that the employee victim of corroborated racial comments that “
Wie
is jou kaffir?”
was in response to the employee uttering
“
Julle kaffirs is almal donnerse ewe onnosel
”-
commissioner failing to assess the credibility of each witness
and arrived at an unreasonable award –Labour
Court erring in
upholding the award – Appeal upheld and employee’s
dismissal found to be substantively and procedurally
fair.
Coram:
Davis JA, Hlophe and Kathree-Setiloane AJJA
JUDGMENT
KATHREE-SETILOANE
AJA
[1]
The appellant, South African Breweries (“SAB”) appeals
against the judgment of the Labour Court (Steenkamp J) in
which he
dismissed an application for the review and setting aside of an
arbitration award made by the third respondent (“the
Commissioner”) under the auspices of the second respondent, the
Commission for Conciliation, Mediation and Arbitration (“the
CCMA”) in terms of which the Commissioner found the first
respondent, Mr Hendrich Hansen’s (“Hansen”)
dismissal by SAB to be substantively unfair and ordered his
reinstatement. SAB dismissed Hansen for making the following racial
remark to an employee of a contractor: “
Julle kaffirs is
almal donnerse ewe onnosel.
”
Events leading up to Hansen’s
dismissal
[2]
At the time of his dismissal, Hansen was the Regional Risk Manager at
SAB’s brewery in Newlands, Cape Town, having been
employed by
SAB since 2000. During the time of his dismissal, SAB had contracted
with a logistics company, D J Bosman Transport
(“DJ Bosman”),
to supply it with truck drivers to deliver its alcohol products to
various parts of South Africa.
[3]
On 16 June 2014, Mr Clarence Booysen (“Booysen”), an
employee of DJ Bosman, was the driver of a truck code-named
“BOS12”
(“the truck”) that had been loaded with SAB’s
alcohol products for delivery. As he drove
the truck out of SAB’s
Newlands brewery, he was stopped by Hansen who had noticed that the
load was not properly sealed.
Booysen pulled the truck over and
Hansen approached the driver’s door and informed Booysen that
the load on the truck was
not sealed in accordance with SAB’s
delivery protocols. A verbal altercation between Hansen and Booysen
ensued. The nature
of their verbal exchange and whether it was
witnessed by a third person is in dispute. On Booysen’s
version, Hansen shouted
at him and exclaimed “
Julle kaffirs
is almal donnerse ewe onnosel”
. In response to this,
Booysen testified that he got out of the truck and asked Hansen “
Wie
is jou kaffir?”
[4]
Mr Wendel Carolus (“Carolus”) witnessed the exchange
between Hansen and Booysen. Carolus testified that he had been
resting inside the truck, driven by Booysen, when he was awoken by
the verbal exchange between them. He said that he had been resting
in
the truck because he had driven it during the night shift from 18h00
on 15 June 2014 to 06h00 on 16 June 2014. He corroborated
Booysen’s
version that Hansen had uttered the words “
Maar julle
kaffirs is ewe onnosel”
. He furthermore confirmed that
Booysen responded by asking Hansen “
Wie is jou kaffir?”
[5]
In addition, Booysen’s Shift Supervisor, Mr Kurt Scullard
(“Scullard”) who testified in favour of SAB at the
arbitration hearing, confirmed Carolus’ presence in the truck a
few minutes after the altercation between Hansen and Booysen.
Scullard testified that Booysen had summoned him to the scene. When
he arrived at the scene, he saw Carolus in the truck and asked
him to
drive the vehicle off-site. According to Scullard, the two drivers
who were rostered to drive the vehicle on the morning
in question
were Booysen and Carolus.
[6]
Hansen admitted that there was an altercation between him and Booysen
but denied uttering the racially derogatory statement,
referred to
above. He also denied that Carolus was present on the scene to
witness the altercation between Booysen and himself,
and accused both
Booysen and Carolus of fabricating the allegation against him. He
also accused SAB’s management of embarking
on a “
witch-hunt
to get rid of me
”. Hansen alleged that Booysen had used
“
indecent and foul language towards the dignity of
[Hansen’s] deceased mother
”. Hansen placed great
reliance on the inter-depot registers as reflecting that one Mr
Mayatoza (“Mayatoza”) was
the person who drove the truck
into the depot on the morning of the incident. He was, therefore,
adamant that Carolus was not on
the truck. He, however, conceded
under cross-examination that he did not see Mayatoza driving the
truck on the morning in issue.
[7]
Following the events of 16 June 2014, SAB charged Hansen with gross
misconduct for allegedly saying to Booysen that “
julle
kaffirs is almal donners ewe onnosel
”. On 21 August 2014,
Hansen was found guilty in an internal disciplinary hearing and was
dismissed. On 27 August 2014, Hansen
requested an internal appeal
against his dismissal. The dismissal was upheld on appeal.
The
CCMA proceedings
[8]
Dissatisfied with the outcome of the disciplinary enquiry and
internal appeal process, Hansen referred an unfair dismissal dispute
to the CCMA. The conciliation failed, and the dispute was referred to
arbitration before the Commissioner. The substantive and
procedural
fairness of Hansen’s dismissal was placed in dispute in the
arbitration. The Commissioner found Hansen’s
dismissal to have
been procedurally fair but substantively unfair and ordered his
retrospective reinstatement. In arriving at her
decision, the
Commissioner reasoned as follows:
‘
Booysen
testified that [Hansen] made a racially derogatory comment towards
him. The presiding officer of the internal appeal process
did not
regard Booysen as a confident witness and concluded that on Booysen's
evidence alone, he would have given [Hansen] the
benefit of the
doubt. The presiding officer concluded that Booysen was clearly
"violating sealing protocol", was "fearful
of losing
his job" and "could have been motivated to fabricate his
version. I have also found Booysen's version of events
to be lacking
in credibility given that he failed to use the opportunity to inform
his controller when he had the opportunity to
do, failed to inform
his employer and informed the respondent’s shop steward a few
days later. From the shop steward’s
reaction, it will appear
that Booysen only mentioned having been banned from the site as
opposed to having been humiliated or sworn
at.
[SAB] relied heavily on the evidence
of the second driver who confirmed that he witnessed the alleged
incident. While Carolus substantiated
the evidence of Booysen, the
evidence does not support the conclusion that Carolus was on the
vehicle at the time. Carolus testified
that he had worked the
previous night shift and remained on the vehicle after that. The
respondent's documentation (the record
of vehicles entering and
leaving the premises) does not corroborate the version of Carolus in
any way. The record (completed by
the security officials stationed at
the access point of [SAB’s] premises) does not reflect the
version of Carolus. The vehicle
returns to site approximately at
three in the afternoon with Booysen as the driver and leaves [SAB’s]
premises sometime later
with Carolus as the driver and returns to
site a few more times (that evening) with Carolus as the driver.
These contradictions
were not answered. [SAB] did not give any
reasonable explanation. While I can accept that a security official
could make an error,
it could not be to the extent as reflected on
the documentation. I therefore find that the version of Carolus was
not credible
and have concluded that Carolus may have not been on the
vehicle when the incident occurred. It is highly unlikely that had
Carolus
heard such an altercation and heard words which were clearly
derogatory in nature that he would have remained in the vehicle lying
on a seat without at least sitting up. I have accepted the evidence
of Hansen that he did not see Carolus in the vehicle and therefore
the evidence of Scullard does not assist [SAB’s] case. The
appeal presiding officer disregarded the evidence of Scullard
on two
counts; that Scullard was not a witness to the incident and that
Scullard was used as an interpreter in the initial hearing
and
testified after hearing the evidence of the other two witnesses. In
any event, it was not disputed that [Hansen] had instructed
Scullard
to find an alternative driver to take the vehicle off [SAB’s]
premises. The contract between [SAB] and DJ Bosman
requires a second
driver on all vehicles. The departure from this requirement may well
have contributed to the version that there
was a second driver on the
vehicle when there was not. Reference was also made to the different
versions of Carolus and Booysen
as to what transpired at the time of
the incident and the different versions of Carolus at the initial
hearing, the appeal hearing
and at arbitration and this further
serves to weaken the evidence of Carolus.’
The Commissioner accordingly found
that SAB could not discharge its
onus
of proving that Hansen’s
dismissal was substantively fair as the versions of the parties were
“equally probable”.
The
Review Proceedings
[9] On 15 April 2015, the appellant
launched proceedings in the Labour Court to review and set aside the
arbitration award. On 2
February 2016, the Labour Court dismissed
SAB’s review application on the basis that:
‘
[V]iewed
holistically against the evidence led at the arbitration, the [A]ward
is not so unreasonable that no other arbitrator could
have come to
the same conclusion.
’
In
arriving at this conclusion, the Labour Court reasoned as follows:
‘
Could
the arbitrator have reached the conclusion that she did on the
evidence before her? I think so. She considered the evidence
and
weighed up the probabilities. On review, as opposed to appeal, her
conclusion was one that another arbitrator acting reasonably
could
also have reached.
It is so that the arbitrator referred
to the appeal chairperson's finding with regard to Booysen's
credibility. But the award and
the evidence of the arbitration must
be regarded holistically. She formed her own view of the
probabilities on the evidence before
her. And she also found Booysen
not to be a credible witness, but for reasons other than those
mentioned by the appeal chairperson.
That is not a finding that a
court on review is likely to interfere with.
As to Scullard’s testimony,
although the appeal chairperson disregarded it, the arbitrator did
not have regard to it in the
arbitration, which is a hearing de novo.
She considered Hansen's undisputed evidence that he had instructed
Scullard to find an
alternative driver to take the truck off the
premises. It is common cause that Scullard was not a witness to the
incident. And
she pointed out that Scullard testified that Hanson
complained that Booysen had sworn him; yet Booysen made no mention
off Hansen's
alleged racist insult. The oblique reference to the
appeal chairperson's findings does not make the result off the
arbitration
award unreasonable in the light of the evidence led at
the arbitration.
Turning to the security registers, the
arbitrator quite reasonably considered the discrepancies between the
evidence of Carolus
and the vehicle movements recorded on the
register. Her conclusion in this regard may be right or wrong; but it
is not so unreasonable
that no other arbitrator could have come to
the same conclusion.
Considering the question whether
Hanson uttered the racist words, the arbitrator considered the
credibility of the witnesses before
her; the probabilities; and came
to a conclusion on the balance of probabilities. She asked the right
question and came to a reasonable
conclusion. That conclusion is not
open to review, as opposed to appeal. It is so that Carolus
essentially corroborated Booysen;
but the arbitrator clearly and
reasonably explains why she preferred the evidence of Hanson. That is
exactly what an arbitrator
should do. The test is not whether this
Court may have come to a different conclusion; it is whether the
conclusion reached by
this arbitrator is so unreasonable that no
arbitrator could have reached it. I think not.'
It
is against this finding that SAB appeals, with leave of the Labour
Court.
The
Review Test
[10]
The test that the Labour Court is required to apply in a review of an
arbitrator’s award was settled by the Constitutional
Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others (Sidumo)
[1]
It is that an arbitration award is reviewable if the decision reached
by the arbitrator was one that a reasonable decision-maker
could not
reach. Essentially, this test requires the Labour Court, sitting as a
court of review, to enquire whether the decision
under review is one
that a reasonable decision-maker could not reach on the evidential
material available. On this test, an arbitration
award based on
defective reasoning by an arbitrator may still pass the muster
required in reviews, provided that the result is
one that a
reasonable decision-maker could have reached. This was
clarified by the Supreme Court of Appeal in
Herholdt
v Nedbank Limited (Congress of South African Trade Unions as amicus
curiae)
[2]
as follows:
‘
For
a defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by s 145(2) (a) (ii) …the
Arbitrator must have misconceived the nature of the inquiry 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, 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]
[11]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
(Gold
Fields),
[4]
this Court refined the
Sidumo
test by introducing
a
two-stage
enquiry
.
In
short, this requires the Labour Court to consider two issues: The
first is whether the applicant has established an irregularity.
This
irregularity could be a material error of fact or law, the failure to
apply one’s mind to relevant evidence, or misconceiving
of the
enquiry or assessing factual disputes in an arbitrary fashion. The
second is whether the applicant has established that
the irregularity
is material to the outcome by demonstrating that the outcome would
have been different having regard to the evidence
before the
arbitrator. An arbitration award will, therefore, be considered to be
reasonable when there is a material connection
between the evidence
and the result.
[12]
The basis of the appeal, as contended for on behalf of SAB, is that
the Labour Court’s failure to apply the two-stage
enquiry
resulted in it concluding, erroneously, that the Commissioner’s
decision that Hansen’s dismissal was substantively
unfair, was
one that a reasonable decision-maker could not have reached. It
argued that had the Labour Court properly applied the
two-stage
enquiry, as postulated in
Gold Fields,
it would have concluded
that the award was unreasonable as it was entirely unsupported by the
evidence.
Evaluation
[13]
Although Hansen had expressly denied using the impugned words at the
arbitration hearing, he did not dispute that dismissal
for such
misconduct would be an appropriate sanction. Notably, in this regard,
our courts have taken a very firm stand on the use
of racist language
in the workplace, in particular, the use of the word “kaffir”,
visiting upon such misconduct the
sanction of dismissal.
[5]
More recently, the Constitutional Court in
South
African Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others
[6]
said this in relation to the history, meaning and implications of the
use of the word “kaffir”:
‘
[T]he
word kaffir was meant to visit the worst kind of verbal abuse ever,
on another person. Although the term originated in Asia
in colonial
and apartheid South Africa it acquired a particularly excruciating
bite and a deliberately dehumanising or delegitimising
effect when
employed by a white person against his or her African compatriot. It
has always been calculated to and almost always
achieved its set
objective of delivering the harshest and most hurtful blow of
projecting African people as the lowest beings of
superlatively
moronic proportions.’
The
Constitutional Court went on to quote the words of Brook J in
Thembani
v Swanepoel
,
[7]
which it said captured the best rendition of the use of the word
kaffir as being “undoubtedly disparaging, hurtful and
intentionally
hateful”:
[8]
‘
The
term “kaffir” historically bandied about with impunity,
is a term which today cannot be heard without flinching
at the
obvious derogatory and abusive connotations associated with the term.
It is rightly to be classified as an inescapable racial
slur which is
disparaging, derogatory and contemptuous of the person of whom it is
used or to whom it is directed. Considered objectively,
the use can
only be an expression of racism with a clear intention to be harmful
and to promote hatred towards the person of whom
it is used or to
whom it is directed. This brings its use clearly within the ambit of
section 10 of [the
Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000
].’
[9]
[14]
In relation to the seriousness of the misconduct of using the word
“kaffir” in the workplace, the Constitutional
Court
[10]
quoted the words of Zondo JP in
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and Others,
where
he said this:
‘
The
attitude of those who refer to, or call, African’s ‘kaffirs’
is an attitude that should have no place in any
workplace in the
country and should be rejected with absolute contempt by all those in
the country – black and white –
who are committed to the
values of human dignity, equality and freedom that now form the
foundation of our society. In this regard,
the courts must play their
proper role and play it with the conviction that must flow from the
correctness of the values of human
dignity, equality and freedom that
they must promote and protect. The courts must deal with such matters
in a manner that will
‘give expression to the legitimate
feelings of outrage’ and revulsion that reasonable members of
our society –
black and white – should have when acts of
racism are perpetuated.’
[11]
[15]
SAB bore the
onus
to prove in the arbitration that Hansen uttered the words “
Maar
julle kaffers is ewe onnosel”
when addressing Booysen in the workplace on the day in question, and
that the words were objectively derogatory and racist in context.
In
the ordinary course, where derogatory and racial language is used in
the workplace, the employer bears the
onus
to prove that the language used by the employee was objectively
derogatory.
[12]
However, where
the word “kaffir” is used, as is the case here, its
derogatory connotation is so blatant as to be taken
as established.
It bears repetition, in this regard, that being called “a
kaffir” is one of the “worst insults”
in the South
African context.
[13]
However,
the employer will still bear the
onus
to prove that the employee uttered the derogatory word/s.
[16]
Accordingly, in the present case, SAB bore the
onus
to prove in the arbitration that Hansen had uttered the derogatory
words when addressing Booysen in the workplace. There are, however,
two irreconcilable versions on the evidence in relation to this
question. In resolving the dispute of fact, the Commissioner was,
accordingly, required to make findings on the credibility of the
various factual witnesses; their reliability; and the
probabilities.
[14]
The
Commissioner was, as such, obliged to assess the credibility of each
of the witnesses who testified at the arbitration, and
in doing so,
was required to consider the prospects of any partiality, prejudice
or self-interest on their part and the weight
to be attached to their
testimony by reason of its inherent probability or improbability.
[15]
At the very least, in relation to the witnesses who testified in
favour of SAB, the Commissioner ought to have considered (i) their
candour and demeanour; (ii) their bias, latent and blatant compared
to that of Hansen; (iii) internal and external contradictions
in
their evidence; (iv) the probability or improbability of particular
aspects of their versions; and (v) the calibre and cogency
of their
performance compared to that of Hansen. It is, however, clear from
her award, that the Commissioner failed to consider
any of these
things.
[17]
In arriving at the conclusion that Booysen’s evidence was “
not
entirely credible”
, the Commissioner relied on two things;
the first was the view of the internal appeal chairperson who did not
regard Booysen as
a credible witness, and the second was the fact
that Booysen had failed to report the derogatory nature of Hansen’s
statement
timeously to his superiors. The Commissioner clearly
abdicated her responsibility to independently scrutinise Booysen’s
testimony
and determine whether the conclusion reached by the
internal chairperson on Booysen’s credibility was sustainable.
Her inclination
to defer to the findings of the internal chairperson
is again apparent from her reasons for rejecting Scullard’s
testimony,
on the disputed issue of Carolus’ presence in the
truck at the time of the altercation between Hansen and Booysen. As
opposed
to assessing the probability or improbability of each party’s
version on this disputed issue, she accepted Hansen’s
version
and rejected both Scullard’s and Booysen’s by deferring
to the decision of the internal appeal chairperson.
[18]
Had the Commissioner applied her mind independently to the evidence
presented by Scullard, she would have appreciated that
Scullard
testified that when he arrived at the scene, he told
Hansen, after Hansen had enquired who would drive the
vehicle, that
there was a secondary driver that was also on the vehicle, namely
Carolus. The latter part of Scullard’s conversation
with Hansen
was seemingly ignored by the Commissioner. Scullard testified that
when he arrived at the scene a few minutes after
the altercation
between Hansen and Booysen, he saw Carolus in the truck and asked him
to take the vehicle out to the client. During
cross-examination,
Scullard was shown the inter-depot registers and he explained that
regardless of what they recorded, the two
drivers who were rostered
to drive the vehicle on the morning in question, were Carolus and
Booysen, and that when he got to the
vehicle he had seen that Carolus
was inside the vehicle. He reiterated that he had instructed Carolus
to take the truck off site
after the altercation, which Carolus then
did. In the circumstances, the Labour Court ought to have found that
the Arbitrator’s
failure to independently consider both
Booysen’s and Scullard’s evidence was not reasonable.
[19]
In addition, the Commissioner failed to consider the undisputed
evidence, as well as the probability or improbability of both
Booysen’s and Carolus’ versions vis à vis that of
Hansen on the disputed issue of whether he uttered the racially
derogatory statement. Crucially, on this score, she attached no
significance to Booysen’s testimony that he had responded
to
Hansen’s racially derogatory statement with the question “
Wie
is jou stupid kaffirs?”
Carolus testified that he had heard
Booysen asking this question as he was resting in the truck when the
exchange between Hansen
and Booysen took place. As indicated,
Carolus’ presence in the truck was confirmed by the testimony
of Scullard, who was
called to the truck shortly after the incident.
In fact, as the exchange between the Commissioner and Hansen quoted
below demonstrates,
Hansen, in essence, admitted that Booysen had
asked him “
[w]ho is your stupid blacks?”:
‘
COMMISSIONER:
OK, can I just pause a moment? What is your version that Mr Booysen
replied to you?
MR HANSEN: He asked me, he didn’t
mention the word “kaffir” at all.
COMMISSIONER: What did he say?
MR HANSEN: “Who is your stupid
blacks?”
COMMISSIONER: You are saying to this
witness that Mr Booysen said: “Who is your stupid blacks?”
MR HANSEN: That’s correct.’
[20]
Notably, this exchange between the Commissioner and Hansen took place
during his cross-examination of Carolus, when the Commissioner
sought
to clarify Hansen’s version concerning Booysen’s question
to him: ‘Wie is jou kaffir?’ Significantly,
during his
evidence in chief, Hansen did not mention that during the
altercation, Booysen had, in fact, asked him “
who is your
stupid blacks?”
. The thrust of Hansen’s
evidence-in-chief was to point out that there were no allegations of
racism made against him until
much later. In this regard, Hansen
alleged that Booysen had used “indecent and foul language
towards the dignity of [Hansen’s]
deceased mother”.
[21]
However, it is clear from Hansen’s version, as illustrated in
his exchange with
the Commissioner (referred to
above), that the issue of race came up during the altercation. In
light of Hansen’s admission
that Booysen had asked Hansen “who
is your stupid black”, coupled with Booysen’s version to
this effect (which
was corroborated by Carolus), the Arbitrator ought
to have considered and concluded that Booysen would not have randomly
asked,
“who is your stupid blacks”. On the probabilities,
there would have been no reason for Booysen to make such a statement,
other than in response to Hansen’s racially pejorative
utterance: “Maar julle kaffers is ewe onnosel”. The
Commissioner’s
failure to consider this material common cause
fact resulted in her concomitant failure to consider the probability
of both Booysen’s
and Carolus’ versions that Hansen had
uttered the racially derogatory statement. The Labou
r Court
ought to have found that this omission constituted an irregularity
which rendered the Award unreasonable, but it failed
to do so.
[22]
Furthermore, in assessing the credibility of the witnesses who
testified in favour of SAB, the Commissioner failed to consider
that
the complainants were not employees of SAB and would have had to
conspire with each other to lie. While the Commissioner was
content
on relying on the internal appeal chairperson’s finding that
Booysen “was fearful of losing his job”
and considered
this sufficient to find his credibility wanting, she failed to
consider Hansen’s latent or blatant bias in
presenting the
version that he did at the arbitration. Had she considered this, the
Commissioner would have concluded that the
likelihood of Booysen and
Carolus misleading her on the events was less probable than Hansen
doing so.
[23]
In impugning Booysen’s credibility on the basis that he feared
losing his job, the Commissioner failed to have regard
to two
important facts. The first was that it was common cause that the
sealing of the truck was the responsibility of the security
guards
and not the drivers of the vehicles, and the second was that, despite
Hansen’s allegation that Booysen had used racist
language,
Booysen returned to work immediately after the altercation and
remained employed. There were, accordingly, no indications
on the
evidence before the Commissioner of any adverse consequences for
Booysen in relation to his further employment with D J
Bosman
Transport.
[24]
Unlike Booysen and Carolus who were not employed by SAB, Hansen was
dismissed for his alleged misconduct and had not secured
alternate
employment since his dismissal. A failure to vindicate himself at the
arbitration hearing would, therefore, have had
significant personal
consequences for him. The Commissioner failed to appreciate this
factor when assessing Hansen’s credibility.
The Labour Court,
in my view, ought to have been circumspect in assessing the
reasonableness of the Award in light of the Commissioner’s
omission in this regard.
[25]
In finding that SAB had not discharged its evidentiary burden, the
Commissioner found that it had relied heavily on the evidence
of
Carolus to corroborate the testimony of its primary witness, Booysen.
Without making proper credibility assessments of either
Booysen or
Carolus, she found that the documentary evidence presented by Hansen
did not support Carolus’ version. In so doing,
the Commissioner
placed an unreasonable and arbitrary reliance on the inter-depot
register which was shown to be inaccurate on
the unchallenged
evidence of Booysen, Carolus and Scullard. The admission of the
inter-depot registers self-evidently did not mean
that what was
recorded was true.
[16]
Significantly, in this regard, Booysen confirmed in cross-examination
that the register did not record whether a second driver
was in the
vehicle. He testified that the register was completed by a security
guard and he had no input on the document. Carolus,
likewise,
testified that the security guards knew that he and Booysen were
assigned to the same truck and would, therefore, write
either
driver’s name when they saw “BOS128”, regardless of
who was driving. It was put to Carolus that the register
recorded
that one Mayatoza drove “BOS128” into the Newlands site
on 16 June 2014 at 07:06 thus implying that Carolus
was not on the
truck on the day in question. Carolus disputed this.
[26]
However, despite the challenge to the veracity of the documentary
evidence relied upon by Hansen, he failed to call the author
of the
register to testify at the arbitration hearing in confirmation of the
contents of the register. It is a trite principle
of the law of
evidence that where a document sought to be introduced as evidential
material from which conclusions are ultimately
sought to be drawn,
the author of the document, or a person who can demonstrably be shown
to have associated himself or herself
with the document ought to be
called as a witness.
[17]
[27]
Had the Commissioner properly assessed the documentary evidence in
light of the direct evidence of both Carolus and Booysen,
she would
not have placed an unreasonable and arbitrary reliance on the
inter-depot register. Her factual conclusions were manifestly
arbitrary and not supported by the evidence as a whole. In light of
this, the Labour Court ought to have found that the Commissioner’s
finding on this aspect was not reasonable.
[28]
To sum up, there were a number of gross irregularities in the
proceedings, which included the Commissioner’s: (a) failure
to
evaluate significant common cause facts; (b) arbitrary and
unreasonable rejection of corroboratory evidence tendered on behalf
of SAB; (c) disregard of Hansen’s latent or blatant bias; and
(d) unreasonable and arbitrary reliance on documentary evidence
which
was shown on the unchallenged evidence to be inaccurate and
unconfirmed. But for these irregularities, the Commissioner would
have arrived at a different conclusion. The Labour Court’s
approach to the review, in my view, was to unduly defer
to the
findings of the Commissioner as opposed to considering whether there
were irregularities in the proceedings, and if so whether
they were
material to the outcome. Thus, had the Labour Court followed the
two-stage approach to the review, as articulated by
this Court in
Gold Fields
, it would have concluded that the irregularities
committed by the Commissioner were material to the outcome, and that
having regard
to the evidence before her, her decision was not one
which a reasonable decision- maker would have arrived it. Simply put,
the
Labour Court ought to have found that the award was unreasonable
as it was entirely unsupported by the evidence.
[29]
I accordingly consider the Labour Court to have erred in not
reviewing and setting aside the award of the Commissioner. In
the
result, the finding of the Commissioner that the dismissal of Hansen
was substantively unfair must be set aside. I see no reason
in law or
fairness why costs should not follow the result.
[30]
For these reasons, the appeal succeeds and it is ordered that:
1
the appeal is upheld
with costs;
2
the order of the Court
a quo
is set aside and replaced with the following
order:
‘
The
arbitration award of the third respondent dated 3 March 2015 under
the auspices of the Commission for Conciliation, Mediation
and
Arbitration under case number WECT 15074-14 is set aside, the first
respondent’s dismissal having been procedurally and
substantively fair.’
______________________
F
Kathree-Setiloane AJA
Davis
JA and Hlophe AJA concur in the judgment of Kathree-Setiloane AJA
APPEARANCES:
FOR
THE APPELLANT
F Boda SC
Instructed by Norton Rose Fulbright
South Africa Inc
FOR
THE FIRST RESPONDENT:
N Greef: Solidarity
[1]
[2007] 12
BLLR 1907
(CC) at para 10.
[2]
Andre Herholdt v Nedbank
Limited, (Congress of South African Trade Unions as amicus curiae)
[2013] 11
BLLR 1074
(SCA).
[3]
At para 25.
[4]
[2014] 1
BLLR 20 (LAC).
[5]
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and Others
[2002] 6
BLLR 493
(LAC) at para 35;
City
of Cape Town v Freddie and Others
[2016]
6 BLLR 568 (LAC).
[6]
(2017) 38
ILJ 97 (CC) at para 4.
[7]
2017 (3) SA
70
(ECM) .
[8]
South
African Revenue Service v CCMA
at para 5.
[9]
At para 13.
[10]
South
African Revenue Service v CCMA
at para 54.
[11]
At
para 37.
[12]
SAEWU v
Rustenburg Platinum Mines
LAC Case
No: JA 45/2016, 3 May 2017 (handed down on 3 May 2017).
[13]
South
African Revenue Service v CCMA
para 53.
[14]
SFW
Group Ltd and Another v Martell ET Cie and Others
2003
(1) SA 11
(SCA)
at para 5.
[15]
Sasol
Mining (Pty) Ltd v Ngqeleni NO and Others
(2011) 32
ILJ 723 (LC) at para 9.
[16]
Weintrauab
v Oxford Brick Works (Pty) Ltd
[1948] 1 SA 1090
(T), Zeffertt,
Paizes
and Skeen
The
South African Law of Evidence
(
Lexisnexis
Butterworths
2003)
at
686.
[17]
Zeffertt, Paizes and Skeen
The
South African Law of Evidence
(
Lexisnexis
Butterworths
2003) at p 694.