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[2017] ZALAC 60
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Grindrod Logistics (Pty) Ltd v SATAWU obo Kgwele and Others (JA53/16) [2017] ZALAC 60; (2018) 39 ILJ 144 (LAC) (18 October 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JA53/16
Reportable
In the matter between:
GRINDROD LOGISTICS
(PTY)
LTD
Appellant
and
SATAWU OBO
KGWELE
First
Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Second
Respondent
COMMISSIONER R MAODI
N.O
Third
Respondent
Heard:
30 May 2017
Delivered:
18 October 2017
Summary: Review of
arbitration award – employee dismissed for reckless and/or
negligent driving that resulted in substantial
loss to the employer –
commissioner upholding dismissal – employee contending - bias
on the part of the commissioner;
that he was not aware of the
employer’s policy which prohibited driving on gravel roads; and
inconsistency in the application
of discipline.
Held that the test for
bias is whether a reasonable, objective and informed person would, on
the correct facts, reasonably apprehend
bias. Court finding that the
apprehension of bias was unjustified because the employee failed to
show that the commissioner acted
mala fide
and in breach of
his duties so as to afford the employer an unfair advantage when he
adjourned the arbitration.
Held further that the
commissioner posed elucidatory questions which did not advance the
employer’s case and showed nothing
sinister in the conduct of
the arbitration proceedings.
Held that the
probabilities were overwhelming that the employee was aware of the
injunction not to drive on the gravel roads.
Held
that the employer is required to apply the penalty of dismissal
consistently in a precedent-setting system for essentially
similar
misdemeanours as employees who were sanctioned in the past as the
misconduct under consideration. Although the employee
contended that
the employees faced with same offence were not dismissed, the
employer failed to
adduce
any evidence demonstrating that those employees’ personal
circumstances differed significantly from those of the employee.
Employee’s dismissal substantively unfair. Consequently, the
Labour Court’s judgment upheld albeit for different reasons
–
appeal dismissed.
Coram:
Landman JA, Kathree-Setiloane AJA
and
Phatshoane AJA
JUDGMENT
PHATSHOANE AJA
[1] This is an appeal
against the judgment and order of the Labour Court (Molahlehi J)
handed down on 03 February 2016 under Case
No: JR535/13 reviewing and
setting aside the arbitration award dated 15 November 2012 issued
under Case No: GATW 6431-12 by commissioner
R Maodi (“the
commissioner”), the third respondent, under the auspices of the
Commission for Conciliation, Mediation
and Arbitration (CCMA), the
second respondent. The appeal is with leave of the Court
a quo.
The factual background
[2] On 05 October 2006 Mr
Andries Malesela Kgwele (“Mr Kgwele”) commenced his
employment at Grindrod Logistics (Pty)
Ltd (“Grindrod”),
the appellant, a car carrier company with a workforce of
approximately 820 employees. Prior to Mr
Kgwele’s dismissal,
which gave rise to the present litigation, he was a driver whose duty
was to transport vehicles on a
carrier truck to various clients of
Grindrod in and outside the Republic of South Africa.
[3] On 23 March 2013 Mr
Kgwele was assigned a carrier truck H208 to deliver vehicles at two
destinations in Namibia, namely: Okahandja
and Walvis Bay. He
offloaded one unit in Okahandja and proceeded to Walvis Bay via
Windhoek to offload the rest of the cargo. He
was stopped by police
at a roadblock. Having satisfied themselves on the particularities of
his carrier truck and its cargo the
police gave him directions to
Walvis Bay. Although he had driven to Namibia before he had never
been to Walvis Bay. The police
informed him that a portion of the
road was under construction.
[4] Mr Kgwele proceeded
to Walvis Bay on route C26. He realised along the way that he was
driving on a gravel road. It was at night
and it had been drizzling
when he reached a “drift” or low-lying bridge with a
heavy fast flowing creek traversing
the road. He stopped the carrier
to assess if he could cross the rivulet. He could not make a U-turn
as the road was narrow and
his carrier very long (an articulated
truck). He saw other vehicles passing through the drift. On the next
morning, after 05h00
or 06h00, he took a calculated risk of crossing
the drift but stuck. He testified:
‘
When I was
trying to pass the trailer fell, I do not know, something stuck…That
is when, after the trailer fell and then
water started flowing and
the sand and rocks as well towards the truck. I tried pressing the
panic button, but there was no response.’
[5] Mr Kgwele spent about
five days and nights at the scene, in the bush, and was unsuccessful
in his attempts to contact Grindrod.
Through the assistance of some
strangers Grindrod was alerted to his plight and was rescued. The
carrier and some of the cargo
were damaged.
[6] Mr Jugdish Bhika, a
business unit manager at the Rosslyn depot of Grindrod, who had been
the initiator in Mr Kgwele’s
disciplinary enquiry, testified
that carrier drivers are supposed to drive only on national roads and
not off-route or gravel roads
for the safety of the cargo and the
drivers. He intimated that this rule was known to Mr Kgwele. To this
extent Mr Bhika’s
evidence was corroborated by Mr Ross
Matkovich, the regional manager of Grindrod, who added that drivers
do not drive on gravel
roads unless under authorised supervision.
According to Mr Bhika the drivers were trained and were briefed on
this aspect in each
of the trips they undertook. Mr Kgwele drove the
loaded carrier truck on a stretch of approximately 157 Km of a gravel
road prior
to the occurrence of the incident.
[7] Mr Bhika further
explained that where a driver reaches a gravel road and/or is
off-route or lost he/she should contact the fleet
controllers of
Grindrod. If his/her phone is not working he/she should press the
panic button situated inside the carrier which
will activate the
alarms at the branches, signalling that the driver had encountered a
problem and required assistance.
[8]
Mr Bhika intimated that Mr Kgwele did not press the panic button when
he went off-route or took the gravel road. He only did
so upon the
occurrence of the devastating incident near Gamsberg pass
[1]
and added that the carriers should never be driven through rivers.
Following the incident, out of the eight vehicles that had been
loaded on the hauler three were salvaged while five were written-off.
The maintenance manager of Grindrod estimated that the repair
costs
would be in the region of R1.2 million. The evidence in respect of
the actual costs incurred for the repair work done was
not adduced by
Grindrod. The towing costs were in the amount of R204 014.60.
[2]
Although the vehicles
were insured
Grindrod
had to pay excess to the insurer in respect of its claims. The amount
of excess paid is not apparent from the record.
[9] In his defence Mr
Kgwele claimed to have been unaware of Grindrod’s policy that
prohibited driving on gravel roads. He
says that certain of
Grindrod’s clients (in Ellisras, East London, Marble Hall) were
situated in areas where access to their
sites was gained through the
use of the gravel roads. At times, he said, they travelled outside
the trip sheet if the route was
hazardous. However, they would call
the fleet controllers and inform them of the deviation from the
route.
[10] Mr Jack Mojela, an
employee of Grindrod for 30 years testified that, as a driver, he was
not aware of Grindrod’s policy
that prohibited driving on a
gravel road. He also intimated having driven a carrier through a
river. Mr Jan Makau, a driver at
Grindrod since 1982 was also unaware
of such a policy and knew that some employees drove through gravel
roads from Richards Bay
to Smithfield; Newcastle to Ermelo; and
Nylstroom to Lephalale (Ellisras) to reach at least three of
Grindrod’s customers.
[11] Mr Kgwele was
subjected to a disciplinary enquiry on two counts: (1) Unauthorised
route - driving off-route and (2) Reckless
and negligent driving.
Further particulars to the charges were framed as follows: “
On
the 23
rd
of March 2012 Mr Kgwele was
assigned to deliver cargo in Namibia at two locations namely,
Okahandja and Walvis Bay. While executing
this assignment, it is
alleged that Mr Kgwele used [an] unauthorized route and also drove
the company vehicle in a reckless and
negligent manner resulting in
substantial damage to the company vehicle and the cargo.”
[12] Mr Kgwele was
acquitted on Count 1 on the basis that he was not sufficiently
briefed on the authorised route to Walvis Bay.
He was found guilty on
Count 2 (reckless and negligent driving) and dismissed from the
services of Grindrod on 02 May 2012.
[13]
The South African Transport and Allied Workers Union (SATAWU) (“the
union), the first respondent, referred Mr Kgwele’s
unfair
dismissal dispute to the CCMA for conciliation on 16 May 2012. The
dispute remained unresolved. On 10 and 29 October 2012
it was arbitrated.
[14]
Part of the evidence led during the arbitration relates to Grindrod’s
alleged inconsistency in the application of discipline.
Mr Jack
Mojela, a shop steward that represented Mr Kgwele during his
disciplinary enquiry, testified that he represented Mr Jan
Makau, who
had been charged with damaging Grindrod’s property through
reckless and negligent driving. He was found guilty
and received a
final written warning valid for a year. He represented Ms Diana
Sibanyoni, who faced similar charges. She received
a final written
warning. He intimated that one employee, Mr Piet Mahlangu, just like
Mr Kgwele, was unfamiliar with the route;
was lost and hit some road
poles and damaged the cargo. He was given a final written warning. Mr
Mojela went on to say that one
Mr Edwin Makhaya drove through the
bush with Grindrod’s kombi which overturned; Mr Jeffrey
Rangwako and Mr Frans Motlanthe
were also subjected to discipline for
reckless and negligent driving. These employees were not dismissed.
The
arbitration award
[15]
Only the substantive fairness of the dismissal fell for determination
by the commissioner. The commissioner acknowledged that
recklessness
and negligence were “different (legal) concepts” which
required different forms of
mens rea
. He went on to
distinguish recklessness from negligence. Having done so, he found
that Mr Kgwele drove the truck in a reckless
and
negligent
manner and held that “
no reasonable person driving a truck
with the cargo on it would have crossed that drift
”. He
found that Mr Kgwele failed to exercise the standard of care and
skill that could be expected of an employee in his
position. He was
of the view that Mr Kgwele ought to have awaited assistance or
attempted to make a U-turn regardless of the narrow
nature of the
road.
[16]
The commissioner rejected the union’s argument that Grindrod
had been inconsistent in the application of discipline.
He reasoned
that the workplace cases referred to by the union, to demonstrate
this aspect, were not sufficiently similar to the
case of Mr Kgwele.
According to the commissioner,
none
of the employees involved in those cases were charged with reckless
and negligent driving.
[17] Concerning the
appropriate sanction for the transgression, the commissioner was of
the view that Mr Kgwele breached the relationship
of trust. He found
it aggravating that he drove the truck loaded with the cargo in a
reckless and negligent fashion. He further
held that, as a
consequence of his action, Mr Kgwele caused Grindrod substantial loss
and concluded that his dismissal was fair.
He dismissed his claim.
The Judgment of the
Court
a quo
[18]
On the review of the commissioner’s arbitration award
the Labour Court
considered whether there had been
gross
irregularities in the conduct of the arbitration proceedings by the
commissioner. It held that the record of the arbitration
proceedings
showed two instances where the commissioner exceeded his powers as
contemplated in s138(2) of the Labour Relations
Act, 66 of 1995 (“the
LRA”). The Court was of the view that the approach adopted by
the commissioner created a clear
basis for the perception of bias on
the part of the union and Mr Kgwele. This was so because: the
commissioner enquired from Grindrod’s
representative if he
wished to call further witnesses after he had made it clear that he
was closing Grindrod’s case; the
commissioner adjourned the
arbitration for a short period; on resumption, Grindrod’s
representative had changed his mind
stating that he would call a
further witness, the commissioner then postponed the arbitration. The
Court held that the postponement
of the arbitration, at the instance
of the commissioner, was for purposes of affording Grindrod the
opportunity to arrange the
attendance of a witness it never intended
to call but for the commissioner’s intervention.
[19] The Court
a quo
reasoned that the commissioner’s approach sought to send a
clear message to Grindrod’s representative that the case
for
Grindrod was incomplete and that it was not strategic to close same
without calling another witness. The Court held that, in
so acting,
the commissioner advanced Grindrod’s case and gave it an unfair
advantage.
[20] The Court
a quo
further held that the questions the commissioner posed to Mr Kgwele
fell outside the powers of the commissioners as envisaged in
s 138(2)
of the LRA because they were not clarity seeking questions but sought
to advance the case of Grindrod at the expense of
Mr Kgwele’s
case. It then held that objectively the employee reasonably perceived
or reasonably apprehended bias on the part
of the commissioner and
that on this point alone his arbitration award stood to be reviewed
and set aside.
[21] In view of the fact
that the dismissal had been effected some three and half years prior
to the review proceedings the Court
a quo
was of the view that
remitting the matter to the CCMA for arbitration
de novo
would
prejudice the parties as this would cause further delays in disposing
of their dispute. It held that the material before
it was sufficient
for purposes of substituting the arbitration award.
[22] On the merits, the
Court held that both witnesses for Grindrod testified about the
existence of the rule that prohibited drivers
from travelling on the
gravel roads but were unable to sustain that version through
cross-examination. It held:
‘
It was in
this respect not disputed that certain of the third respondent’s
[Grindrod’s] customers, such as Nissan in
Ellisras can only be
reached through the gravel road. The version changed during
cross-examination to say that drivers can drive
on gravel roads with
permission from the control officer.’
[23] The Court
a quo
found that had the commissioner properly applied his mind to the
facts he ought to have found that Grindrod failed to discharge
its
onus
of showing that there was a rule prohibiting drivers from
driving on gravel roads. It held that, even assuming that the rule
existed,
the evidence demonstrated that the rule was not consistently
applied and therefore it was unfair to dismiss the employee on
account
of the breach of the rule. The Court held that Mr Kgwele
could not be blamed for having failed to put his version that he
pressed
the panic button to alert Grindrod’s control centre
when he entered the gravel road because the commissioner had stopped
the union from cross-examining on the issue.
[24] The Court further
held that in finding that Mr Kgwele’s conduct caused Grindrod
substantial loss, the commissioner did
not take into account that
Grindrod failed to adduce evidence of its actual loss. The
commissioner relied on the testimony of Mr
Bhika to the effect that
five of the eight insured vehicles were written-off; R204 000.00
was paid for towing the truck; and
had estimated the repair costs of
the carrier to be in the region of R1.2 million based on what he was
told by someone in the maintenance
department who had not been called
to testify. It held that had the commissioner brought his mind to
bear on the issues he ought
to have found that Grindrod failed to
show the seriousness of the offence based on the loss suffered.
[25] The Court found that
Grindrod had been inconsistent in the application of discipline. It
further held that Mr Kgwele made a
judgment error by crossing the
drift not only on the basis of the vehicles that he saw crossing but
he had also, on three occasions,
crossed drifts. It then concluded
that the decision by the commissioner is not one which a reasonable
decision-maker could have
reached.
[26] As already alluded
to, the Court
a quo
reviewed and set aside the award. It then
substituted the award with an order that the dismissal of Mr Kgwele
was substantively
unfair. He was reinstated retrospectively from the
date of his dismissal without loss of benefits and issued a final
written warning
valid for a period of six months.
The grounds of appeal
[27] Before us the
following grounds of appeal were advanced on behalf of the Grindrod.
That the Court
a quo
erred in:
27.1 finding that the
arbitration award was reviewable on the basis that there had been a
reasonable perception of bias on the part
of the commissioner.
27.2 finding that the
commissioner ought to have concluded that Grindrod had failed to
discharge the duty of showing that there
was a rule prohibiting
drivers from driving on gravel roads. It was contended that, on the
basis of Mr Kgwele’s contradictory
versions, pertaining to the
pressing of the panic button, he must have been aware of the rule. It
was also argued that the Court
a quo
attached undue weight to
the fact that the commissioner refused to allow the union to
cross-examine Mr Bhika on the aspect relating
to pressing the panic
button.
27.3 not appreciating
that the commissioner considered the varying circumstances of the
employees charged with similar misconduct
in arriving at his decision
that the dismissal was the appropriate sanction.
27.4 finding that the
decision of the commissioner was not one which a reasonable
decision-maker could have arrived at and also
failed to appreciate
the seriousness of Mr Kgwele’s misconduct by reinstating and
giving him a final written warning.
The evaluation
[28] In concluding that
the dismissal of Mr Kgwele was unfair the Labour Court premised its
finding on three pertinent issues which
are the subject of this
appeal. Firstly, the question of the alleged perception of bias on
the part of the commissioner against
Mr Kgwele; secondly, the factual
and legal basis upon which the commissioner found that Grindrod
discharged the
onus
to proof that Mr Kgwele breached the
workplace rule and was therefore guilty of misconduct; and thirdly,
the question of the alleged
inconsistency in the application of
discipline by Grindrod. I now turn to consider these issues in the
paragraphs below.
The alleged perception
of bias on the part of the commissioner
[29] The union took issue
with the commissioner that, in conducting the arbitration
proceedings, he exhibited bias against Mr Kgwele.
The union’s
perception of bias was informed by the commissioner’s
adjournment of the proceedings in order to afford
Grindrod an
opportunity to call a further witness it never intended to call; and
secondly, by the manner in which the commissioner
posed elucidatory
questions to Mr Kgwele which, it was contended, advanced Grindrod’s
course.
[30] Apparent from the
record is that, on 10 October 2012, after Grindrod had called its
first witness, the commissioner enquired
from Mr Lubbe (Grindrod’s
representative at the CCMA) whether he had further witnesses to call.
He responded in the negative.
Thereafter the commissioner took a
short adjournment. On resumption he enquired further from Mr Lubbe:
‘
Commissioner:
Earlier on I asked whether you will close your case or you intend
calling other witnesses.
Lubbe: Yes.
Commissioner: You still maintain the
view that you have closed your case or do you intend calling other
witnesses.
Lubbe: I intend calling other
witnesses.
Commissioner: Thank you very much,
this process is now adjourned for further hearing, for the respondent
to call his further witnesses
and for the applicant (sic). The date
of the adjournment is 29 October, 10:00. You are not going to receive
any notice of set down,
you have signed and acknowledged same, is
that correct, the applicant?’
[31]
Ms Driver, for Grindrod, contended that the union’s perception
of bias on the part of the commissioner surfaced for the
very first
time during the review. In
Satani
v Department of Education, Western Cape and Others,
[3]
this Court remarked that failure to object by a party or its legal
representative cannot render an unfair process or conduct fair
or
acceptable. The test for bias is whether a reasonable, objective and
informed person would, on the correct facts, reasonably
apprehend
bias.
[4]
Mere apprehensiveness
on the part of a litigant or even a strongly and honestly held
anxiety would not be enough. The question
to be answered is: what
would an informed person, viewing the matter realistically and
practically and having thought the matter
through conclude.
[5]
[32]
In
Bernert
V ABSA Bank Ltd
[6]
:
The Constitutional Court pronounced on belated argument regarding the
apprehension of bias as follows
‘
It is not in
the interests of justice to permit a litigant, where that litigant
has knowledge of all the facts upon which recusal
is sought, to wait
until an adverse judgment before raising the issue of recusal.
Litigation must be brought to finality as speedily
as possible. It is
undesirable to cause parties to litigation to live with the
uncertainty that, after the outcome of the case
is known, there is a
possibility that litigation may be commenced afresh, because of a
late application for recusal which could
and should have been brought
earlier. To do otherwise would undermine the administration of
justice.’
At 102 para 35 the Court
held:
‘
[35] The
presumption of impartiality and the double requirement of
reasonableness underscore the formidable nature of the burden
resting
upon the litigant who alleges bias or its apprehension. The idea is
not to permit a disgruntled litigant to successfully
complain of bias
simply because the judicial officer has ruled against him or her. Nor
should litigants be encouraged to believe
that, by seeking the
disqualification of a judicial officer, they will have their case
heard by another judicial officer who is
likely to decide the case in
their favour…’
[33]
There can be no question that a commissioner has a legal duty to act
impartially in the conduct of the arbitration proceedings.
It would
defeat the whole purpose of dispensing justice if a commissioner was
to surreptitiously hint, through tactical means,
to any of the
parties to the dispute, that their case was incomplete and required
more evidence to be led. It is important to remember
that in terms of
s142 (1)(a) of the LRA a commissioner who has been appointed to
attempt to resolve a dispute may subpoena
for questioning
any person who may be able to give information or whose presence at
the conciliation or arbitration proceedings
may help to resolve
the dispute.
[34] To my mind, to
establish that the commissioner acted irregularly in adjourning the
proceedings thereby making room or affording
Grindrod the opportunity
to call further witnesses, the union and Mr Kgwele had to show that
he acted
mala fide
and in breach of his duties so as to afford
Grindrod an unfair advantage. That they did not do. It would serve no
purpose to speculate
on the possible reasons why the commissioner
acted as described.
[35] What follows
constitutes the sum total of the questions the commissioner posed to
Mr Kgwele in clarification of what had emerged
from his evidence:
‘
Commissioner:
when did you realise there was a drift here?
Mr Kgwele: I stopped by the direction
that is when I realized that there was a drift.
Commissioner: No, my question is, when
did you realize that there was a drift here, when did you realise
that?
Mr Kgwele: I realised at night, that
is when I stopped and I saw other cars passing by.
Commissioner: So when you got there it
was at night?
Mr Kgwele: Yes commissioner.
Commissioner: Did you pass the same
night or the following day
Mr Kgwele: The following day.
Commissioner: So I just need to know
whether you saw that this is a drift, there is water passing here and
that you are driving
a truck which had a cargo on?
Mr Kgwele: I did realise that that is
when I stopped the car to check whether I could pass or not because
there was no way I could
make a U-turn.
Commissioner: But given this drift,
how long have you been a driver?
Mr Kgwele: 1988.
Commissioner: In your experience, when
you are about to cross this, in your view, there was no risk that
something could happen
with you (Inaudible) cross this drift?
Mr Kgwele: I did realise that that is
when I stopped for a while to think whether I could pass or not, and
after seeing that other
cars could pass, that is when I passed, but
my truck was too heavy, that is why I was stuck.
Commissioner: Ja, but did you realise
that maybe your truck could be too heavy and it will not be able to
pass there?
Mr Kgwele: There are certain drifts
that I had passed before, that I came across before, about three of
them, that is why I thought
that one I could also pass’.
[36] In my view, the
reading of the above extract does not disclose anything sinister in
the conduct of the arbitration proceedings.
The Commissioner was
entitled, in light of the circumstantial evidence presented by
Grindrod, to establish,
inter alia
when, on Kgwele’s
version, he reached the drift; at what stage he decided to cross the
rivulet; and his reason for crossing
it.
[37] I am of the view
that the Court
a quo
was wrong in concluding that Mr Kgwele
reasonably perceived or reasonably apprehended bias on the part of
the commissioner. The
union and Mr Kgwele did not discharge the
burden resting on them to show their reasonable perception of bias on
the part of the
arbitrator.
[38] Generally, a finding
of bias on the part of the commissioner nullifies the arbitration
proceedings which would have to commence
de novo
before a
different arbitrator. Having concluded that the commissioner was
biased it was not open to the Court
a quo,
as it did in this
case, to determine the matter on the merits. This was a clear
misdirection. It ought to have remitted the matter
to the CCMA for a
fresh arbitration.
The factual and legal
basis upon which the commissioner found that Grindrod discharged the
onus to proof that Mr Kgwele breached
the workplace rule and was
therefore guilty of the misconduct:
[39] A contentious issue
arising for consideration under this rubric is whether Grindrod
succeeded in proving that there was a rule
prohibiting drivers from
driving on the gravel roads. The parties’ versions on this
aspect were irreconcilable. On account
of this disparity the
credibility of witnesses, their reliability, and probabilities
are important factors for the determination
of the question.
[40] Messrs Bhika and
Matkovich’s were unwavering in their testimony that carrier
drivers were not allowed to drive on the
gravel roads. They were not
asked about exceptions to this norm. It is therefore not surprising
that when Mr Matkovich was confronted
in cross-examination that
Grindrod had a client in Ellisras who could only be reached through a
gravel road his response was that
this was only authorised under
supervision. Therefore, Messrs Bhika and Matkovich cannot be said to
have been unable to sustain
their version through cross-examination
as suggested by the Court
a quo
.
[41] Mr Kgwele and his
two witnesses, Messrs Mojela and Makau, claimed not to have been
aware of the stated policy. Apparent from
Mr Kgwele’s
contradictory versions is that there was an established convention or
rule of practice in terms of which carrier
drivers were prohibited
from travelling on the gravel roads unless authorised to do so. Mr
Kgwele’s evidence was to the effect
that upon discovering that
he was driving on a gravel road he attempted to telephonically report
the situation to Grindrod but
could not reach them as there was no
network coverage or mobile data connection. As he puts it: “
I
have been trying to press it, the panic button before I passed that
gravel.
” On further probing, he contradicted this statement
saying that he pressed the button many times when he was inside the
“river”.
When pressed further he changed and said: “
I
did try, I was pressing the panic button on my way before I reach
that river
.” In my view, it would be illogical for him to
attempt to call Grindrod or press the panic button upon reaching the
gravel
road if he was unaware of the restriction. The probabilities
are overwhelming that Mr Kgwele was aware of the injunction.
[42] It is so that the
commissioner at some stage during the cross-examination of Mr Bhika
sought to exclude the evidence pertaining
to “the pressing of
the panic button by Mr Kgwele”. This was wrong. In my view,
that piece of the evidence was relevant
and admissible. However, the
argument that the commissioner may have stymied the cross-examination
on that aspect cannot avail
the union because as the evidence of Mr
Bhika progressed he allowed the union to question him on the panic
button issue. This is
what appears on the record:
‘
Commissioner:
What is the basis of the respondent saying that the applicant (Mr
Kgwele) was reckless and negligent….
Mr Bhika: That Mr Kgwele did not, the
minute he went onto the gravel road he should have hit the panic
button or called for assistance.
If he did that, this would not have
happened, we would have told him he is on the wrong route and he
should turn around.
Commissioner: so you said he was not
allowed in the first place to travel on the gravel road?
Bhika: No. If you look at the
photographs of the actual road condition, Mr Kgwele should have
contacted us to say, look, he is on
a road that he does not feel
safe.
Mr Sindane (union representative): Mr
commissioner, I am still going back to saying that the panic button
was pressed and there
is a proof that was submitted, and there was no
response until he was assisted by a passer-by who happened to call.
We have got
proof here to say that he took effort, he tried, but, and
at the same time Mr commissioner, apparently, I am putting to him in
his words, he said there is a call centre which is working 24/7 that
monitoring, at the same time it would have detected that this
guy has
got on route he is not supposed to and would immediately inform him
to say, “where are you going, stop there’
both of them
they failed to avoid the accident that has happened.
Commissioner: Any response to that?
Mr Lubbe (for Grindrod): Can I just
comment there for clarification?
Commissioner: Let
the witness answer that.’
[43]
It is significant that Mr Kgwele’s did not lead any evidence to
contradict the evidence of Mr Bhika that he drove on
a stretch of 157
km gravel road without pressing the button. Bhika referred to the
movement report (C-track)
[7]
which
shows that Mr Kgwele, after the incident, pressed the panic button at
06:16 and repeatedly thereafter. In light of this Mr
Kgwele’s
contradictory version that he pressed the panic button when he
reached the gravel road must be rejected.
[44] On the conspectus of
the aforegoing, the Court
a quo
erred in concluding that the
commissioner ought to have found that Grindrod failed to discharge
its
onus
of showing that there was a rule prohibiting drivers
from driving on gravel roads.
[45]
To recapitulate, Mr Kgwele was aware of the caveat that prohibited
the travelling on gravel roads. He did not press the panic
button
when he reached the gravel road. He attempted to cross the heavy
flowing stream with the carrier truck which got stuck in
the process.
The commissioner concluded that Mr Kgwele was reckless or negligent.
The criticism of the commissioner’s finding
by the union that
recklessness and negligence are two different forms of culpability,
while true, is in my view fastidious. On
the reading of the award it
is clear that the commissioner’s conclusions are founded on
negligence. After all, the test
for
the review of the CCMA arbitration awards is whether the decision
reached by the commissioner is one that a reasonable
decision-maker could not reach.
[8]
[46] There can be no
cogent criticism of the commissioner’s conclusion that Mr
Kgwele failed to exercise the standard of care
and skill that could
be expected of an employee in his position. He was of the view that
Mr Kgwele ought to have waited for help
to arrive as opposed to
taking the risk to cross the drift.
The inconsistency in
the application of discipline
[47]
The employer is required to apply the penalty of dismissal
consistently in a precedent-setting system for essentially similar
misdemeanours as employees who were sanctioned in the past as the
misconduct under consideration.
[9]
A
generalised allegation of inconsistency is not sufficient. A concrete
allegation identifying who the persons are who were treated
differently or preferentially and the basis upon which they ought not
to have been so treated must be set out clearly.
[10]
[48]
It was made clear at the outset of the arbitration that the union
would challenge Grindrod’s inconsistent application
of
discipline. Grindrod was
therefore
alive
to the case it had to meet. During the cross-examination of Messrs
Bhika and Matkovich
sufficient
particularities of cases, in respect of which the union contended
were similar to the case that Mr Kgwele was facing,
were put to them.
[49]
Mr Bhika could not dispute that Mr Jan Makau was involved in similar
misconduct of reckless and/or negligent driving involving
damages to
the value of approximately R315 000.00 and had not been
dismissed. He was also aware that Mr Frans Motlanthe and
Mr Jeffrey
Rangwako were each subjected to discipline for reckless and/or
negligent driving, involving damages in the amounts of
R212 592.00
and R18 000.00, respectively, but were not dismissed. In defence
of this, he intimated that each case was
adjudicated according to the
degree of the severity of the transgression.
[50]
Mr Matkovich referred to annexure “R1”, a list of six
employees who had caused damages to Grindrod, in varying
amounts
(ranging from R18 000 to R2 million), through negligence,
[11]
who
all received written warnings for their misconduct. He explained that
the disciplinary enquires at Grindrod are decided by different
presiding officers. Therefore, the outcomes of enquiries would differ
due to various factors which are taken into account: for
instance,
the degree of negligence, the types of damages incurred and/or the
severity of the incident. He intimated that, although
the offences
may be similar, the employees’ mitigating factors were
completely different.
[51]
As already alluded to, Grindrod did not adduce evidence of the actual
damage that Mr Kgwele allegedly caused to it. Mr Bhika
merely
estimated it to be in the region of R1.2 million. Mr Matkovich
referred to the case of a certain Mr Richard Lindzie who,
through
negligence, caused damages in the amount of R2 million to Grindrod. A
sanction of a written warning, in the same way as
in all other
similar cases, was meted out to him. In an attempt to distinguish the
case of Mr Lindzie to that of Mr Kgwele Mr Matkovich
went on to say
that in the former case
there
was a third party interference in that a bird had flown inside the
carrier resulting in the driver losing control of the vehicle.
In
this case, he said, there was no third party interference.
[52]
In
SACCAWU
and
Others v Irvin & Johnson Ltd,
[12]
this
Court held that if a chairperson conscientiously and honestly, but
incorrectly, exercises his or her discretion in a particular
case in
a particular way, it would not mean that there was unfairness towards
the other employees. It would mean no more than that
his or her
assessment of the gravity of the disciplinary offence was wrong.
It cannot be fair that other employees profit
from that kind of wrong
decision. With reference to
Irvin
& Johnson Ltd,
this
Court, in
Cape
Town City Council v Masitho and Others
[13]
pronounced:
'While it is true that an employer
cannot be expected to continue repeating a wrong decision in
obeisance to a principle of
consistency..., in my view the proper
course in such cases is to let it be known to employees clearly and
in advance that the earlier
application of disciplinary measures
cannot be expected to be adhered to in the future.’
[53] Needless to say, the
outcomes of enquiries would differ due to various factors which ought
to be thrown in the melting pot
and taken into account. In this case,
as testified to by Grindrod’s witnesses, the degree of
negligence, the types of damages
incurred, the severity of the
incident, the employees’ mitigating factors, would have to be
duly considered. Regrettably
for Grindrod, while it knew of the case
it had to meet, it did not adduce any evidence of the six employees’
disciplinary
records and/or demonstrate that their personal
circumstances differed significantly from those of Mr Kgwele.
[54] In his six years of
service at Grindrod, Mr Kgwele had a clean disciplinary record. It is
common cause that, although he had
been to Namibia prior to the
incident, it was for the very first time that he drove to Walvis Bay.
It was during a rainy night
when he got lost. He was acquitted on
Count 1 on the basis that he was not sufficiently briefed on the
authorised route to Walvis
Bay. Mr Bhika was unable to say why Mr
Kgwele was not so appraised by the control centre which, supposedly,
monitors the vehicles
en route that he was off-route and on a gravel
road. In my view, Grindrod was partly to blame for the unfortunate
circumstances.
All these extenuating factors militated against the
sanction of dismissal.
[55] The commissioner
erred insofar as he concluded, without any reference to the
employees’ disciplinary records and/or personal
circumstances,
that the cases referred to by the Union to show that the employer was
inconsistent in the application of discipline
were not sufficiently
similar to the case of Mr Kgwele. The Court
a quo
correctly
found that Mr Kgwele provided sufficient information to enable
Grindrod to investigate the cases of alleged inconsistency
in the
application of discipline. Its finding that Grindrod was inconsistent
in the application of discipline cannot be faulted.
In the premises,
the dismissal of Mr Kgwele was substantively unfair. The corollary of
this is that the arbitration award falls
to be reviewed and
set-aside.
Conclusion
[56]
Although our finding that the dismissal was substantively unfair
differs substantially from the finding of the Court
a
quo
,
it is not necessary to upset its order because same is in line with
the order that we would have made. An appeal, by its very
nature, is
directed at a wrong order and not at incorrect reasoning.
[14]
The upshot of this is that the appeal must be dismissed.
[57] Regard being had to
the circumstances of the case, I am of the view that, it would not be
in accordance with the requirements
of law and fairness if Grindrod
is ordered to pay the costs of this appeal. I make the following
order.
Order
1.
The
appeal is dismissed with no order as to costs.
_________________________
MV Phatshoane
Acting Judge of the
Labour Appeal Court
Landman
JA
and
Kathree-Setiloane AJA concur in the judgment of Phatshoane AJA
APPEARANCES:
FOR THE APPELLANT: Adv J
Driver
Instructed by Edward
Nathan Sonnenbergs
FOR THE RESPONDENT: Ms L
Tooka (an official SATAWU)
[1]
The carrier was stuck near Gamsberg
pass according to the information provided by company called
C-track, which tracks the location
of carriers for Grindrod.
[2]
This appears from Truck &Cab
Invoice No 11037 dated 04 April 2012 for towing the carrier from the
“drift” to Windhoek
which was handed in evidence.
[3]
(2016) 37 ILJ
2298 (LAC) at 2311 para 36.
[4]
Bernert
V ABSA Bank Ltd
2011 (3)
SA 92
(CC)
at 100 para 29
and at 111 para 65; President of the Republic of South Africa and
Others v South African Rugby Football Union and
Others
[1999] ZACC 9
;
1999
(4) SA 147
(CC) at para 45
[5]
General Bar Council of the Bar of
South Africa v Geach and Others
2013 (2) SA 52
(SCA) at 79 para 91
[6]
2011 (3) SA 92
(CC) at 114 para 75.
[7]
According to Mr Bhika C-track
monitored the movement of carriers. At page 263 of the record is the
movement report which shows
the time the panic button was pressed
for the very first time and repeatedly thereafter.
[8]
The test was laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28
ILJ
2405
(CC);
dealt
with in
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
(2013)
34
ILJ
2795
(SCA)
;
and
further expatiated in the judgments of this Court,
Inter
alia, Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation & Arbitration and Others
(2014) 35
ILJ
943
(LAC);
Head
of Department of Education v Mofokeng and Others
(2015)
36
ILJ
2802
(LAC)
.
[9]
Schedule 8 of the LRA
the
Code of Good Practice: Dismissal- Item 3(6)
[10]
National Union of Mineworkers on
behalf of Botsane v Anglo Platinum Mine (Rustenburg Section)
(2014) 35
ILJ
2406 (LAC) at 2417 para 39
[11]
The list is captured at page 260 of
the record. These employees were Mr Jan Makau; Mr Jeffrey Rangoako;
Mr Piet Mahlangu; Mr Frans
Motlanthe; Mr Richards Lindzie; and R
Cambell.
[12]
(1999) 20 ILJ
2302 (LAC).
[13]
(2000) 21 ILJ
1957 (LAC).
[14]
See
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA)
at
308-309 para 85.