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[2007] ZALCJHB 50
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South African Revenue Service v Sono and Others (JR343/06) [2007] ZALCJHB 50 (23 February 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR 343/06
In
the matter between:
THE
SOUTH AFRICAN REVENUE
SERVICE APPLICANT
And
VUSI
SONO 1
ST
RESPONDENT
NATIONAL
EDUCATION, HEALTH
AND
ALLIED WORKERS
UNION 2
ND
RESPONDENT
B.
MBOVANE 3
RD
RESPONDENT
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION 4
TH
RESPONDENT
JUDGEMENT
1.
This is an opposed review application
brought by the applicant in terms of Section 145 of the Labour
Relation Act 66 of 1995 to
review and set aside the arbitration award
issued on the 4
th
November 2005 by the third respondent in which he found that the
dismissal of the first respondent was substantively unfair. He
ordered the applicant to reinstate the first respondent to his
previous position on terms and conditions not less favourable than
the ones that existed at the time of dismissal. He further ordered
the applicant to pay to the first respondent the amount of R30
147-99
as backpay.
2.
The first respondent was employed by
the applicant as a customs officer at Johannesburg International
Airport. During December 2004,
the first respondent appeared at a
disciplinary enquiry which arose from the incident that occurred on
13 November 2004.
3.
The first respondent faced the
following charges (a) he assisted and permitted a passenger alighting
from an international flight
to smuggle 180 cellphones plus
accessories into South Africa in contravention of Section 80(1) of
The Customs and Excise Act (b)
he failed to seize and detain the
cellphones and accessories in contravention of Section 88(1)(a) of
the Customs and Excise Act.
He was found guilty and dismissed.
4.
The respondent referred the dispute of
unfair dismissal to the CCMA. The conciliation failed and the dispute
was arbitrated by the
third respondent.
5.
The applicant’s case at the
arbitration was that the first respondent was placed on the green
channel which is an area where
the passengers go through when they
have nothing to declare or when they have bought goods of less than
R3000-00. Those passengers
who have to declare goods purchased of
more than R3000-00 in value and those with goods that are for resale
go to the red channel.
6.
The respondent was observed referring
some passengers to the red channel. Passenger Muhammed came to the
first respondent. Instead
of the first respondent referring him to
the red channel, he personally escorted Mr Muhammed to the red
channel, where he searched
his bag and went through the red channel.
Mr Mashabela the supervisor noticed this and went to the red channel.
He discovered that
the goods had not been declared or detained. On
the applicant’s version, Mashabela found Muhammed and the first
respondent
about to leave the customs controlled area. On seeing
Mashabela, the first respondent told Muhammed that he was going to
detain
the goods. Mashabela intervened and told the first respondent
to return to the green channel. He requested another official to
detain the goods.
7.
The applicant’s case is that the
procedure followed by the first respondent when assisting Muhammed
was incorrect in that
he personally took him to the red channel and
searched him and then escorted him out of the customs area without
detaining the
goods. According to the passenger’s declaration
form no cellphones were declared. The applicant’s case was
further
that the first respondent’s conduct indicated that he
was assisting Muhammed to evade the payment of duties thus
contravening
the Custom’s Act. It was also the applicant’s
case that the first respondent’s cell number was found in
Muhammed’s
cellphone. Mashabela testified that when Muhammed
was talking on the cellphone, the first respondent was on the
cellphone more
or less at the same time.
8.
The first respondent’s case was
that he did escort Mr Muhammed to the red channel and searched him.
He then proceeded to Mashabela’s
office so that Mashabela could
be present when the goods were detained. Mr Mashabela intercepted him
before he could detain the
goods. This on the first respondent’s
version took place in the controlled area near Mashabela’a
office. It was the
respondent’s case that at the time he was
intercepted by Mr Mashabela he had the detention book with him.
9.
In coming to the finding that the first
respondent’s dismissal was substantively unfair, the
commissioner reasoned as follows:
“
Mr
Sono was charged with two counts of misconduct being contravention of
Section 180(1)(c) and 88(1)(a) of the Customs and Excise
Act. He
denied having breached the said sections. Mr Mashabela testified that
Mr Sono only attempted to detain that client when
he saw him. Mr Sono
on the other hand testified that he was only around the vicinity of
Mr Mashabela’s office because he
was looking for him as it was
now procedure to detain a client in the presence of his senior. The
evidence was captured in a video
footage which the respondent failed
to submit. With the burden of proof being upon the respondent party I
find Mr Sono’s
evidence being more probably of the two.
Further
to that Mr Sono testified and during closing arguments referred to a
case of Mr Malahlela an employee who was charged for
the same or
similar offence. This employee was not dismissed but was given final
written warning valid for six months. Although
this was only
submitted during closing arguments it is however very relevant to Mr
Sono’s case in that the incident took
place around the same
time but the sanctions were different. It was in the light of this
case that Mr Sono looked for the senior
prior to detaining the
client. This being the case therefore Mr Sono did not breach any
rule. In the light of this the argument
that trust relationship has
broken does not hold.”
8.
The applicant has challenged the
commissioner’s findings on the followings basis.
8.1
It is not justifiable in the light of the
reasons given therefore and the evidence before the third respondent
8.2
Alternatively, the third respondent
committed a gross irregularity in the conduct of the arbitrator
proceedings
8.3
Further in the alternative, it should
be reviewed in terms of the broader grounds envisaged in Section
158(1)(g) of the Act.
9.
The first respondent filed his answering
affidavit and denied that there are any basis for the review.
10.
It was submitted by Mr Mokoena for the
applicant that the entire evidence of the applicant was ignored by
the commissioner. He submitted
that the relationship between the
first respondent and Mr Mashabela was good. The commissioner failed
to consider why Mashabela
would then make false allegation against
the first respondent. The respondent’s answer to this was that
the commissioner
took into account the evidence presented.
11.
It was again submitted that the
commissioner did not consider the first respondent’s movement
from the green channel to the
red channel as well as the fact that
the first respondent only started detaining the goods on seeing Mr
Mashabela. The respondent’s
answer to this was that the
respondent was entitled to escort Muhammed to the red channel and was
intercepted by Mashabela when
detaining the goods. An allegation was
made by the third respondent in his evidence in chief that Mashabela
tore the detention
document he had prepared. This was never put to
Mashabela. The commissioner did not deal with this.
12.
Mr Mokoena further submitted that the
commissioner did not take into account the fact that one of the
numbers recently called by
Muhammed was that of the first respondent.
The first respondent’s answer to this was that although he had
used the number
before, that number was that of his brother. The
commissioner did not also deal with this aspect. Ms Baloyi for the
respondent
submitted that the existence of the telephone number did
not mean that the respondent colluded with Muhammed. The fact of the
matter
is that the commissioner ignored this evidence. This is
coupled with the fact that, on the evidence presented, the first
respondent
was on the phone more or less at the same time as Mr
Muhammed. This was a relevant fact to be considered. A statement made
by Mashabela
after the incident was presented to the commissioner.
This statement was also ignored.
13.
Ms Baloyi for the respondent submitted that
on the evidence presented, no case was made by the applicant against
the first respondent.
She submitted that the commissioner looked at
the three versions presented and preferred that of the first
respondent.
14.
I raised with Ms Baloyi whether the
commissioner did indicate in his award why the evidence of the
applicant as presented by Mr
Mashabela and Jacobs was rejected. Ms
Baloyi correctly conceded that the commissioner did not set out why
the evidence was rejected.
Ms Baloyi further submitted that the fact
that the commissioner did not set out the reasons does not mean that
the evidence was
not considered. Accordingly, she submitted that it
is clear from the award that the evidence was taken into account.
15.
It appears from the commissioner’s
award that the applicant’s evidence was rejected because the
video footage was not
submitted. It is difficult to understand the
commissioner’s reasoning. This suggest that the applicant’s
evidence was
based on the video footage alone. This ignores the
evidence of Mr Mashabela who testified on his personal observation of
what the
first respondent did. Mr Jacobs gave evidence based on his
investigations and the viewing of the video footage. The video
footage
was viewed by the chairperson of the disciplinary hearing. At
page 87 of the record, the chairperson recorded that the video
footage
of the incident was viewed in the joint operations centre.
The Outcome of the Disciplinary Enquiry was part of the documentation
presented to the commissioner. The chairperson set out what he
observed from the video footage. The commissioner did not say
anything
about this and he simply ignored it.
16.
The court is required to consider whether
the commissioner’s decision was rationally connected to the
information before him
and to the reasons he gave for it.
(Carephone
(Pty) LTD v Marcus NO.
(1998) 11 BLLR 1093
(LAC)
.
The question is not whether the award is capable of sustaining on the
evidence ( see
Rusternburg Platinum
Mines LTD (Rusternburg Section) v CCMA & Others
(2006) 11 BLLR
1021
(SCA)
at para 30 and 31. In the
light of this I reject the submission that it can be gathered from
the award that the evidence was taken
into account.
17.
The focus on review is on the process and
on the way in which the decision maker came to the challenged
conclusion (
see Rusternburg supra
).
The commissioner’s reasoning is flawed because sufficient
evidence was presented which he completely ignored without
explanation.
The award has no connection with the evidence presented
by way of documentation and oral evidence. The commissioner’s
decision
was influenced by the fact that the video footage was not
submitted. However, he failed to indicate on what disputed issues the
video footage was required for. The commissioner failed to indicate
if he also wanted to watch the video footage or that he did
not
accept what the Chairperson of the disciplinary hearing had observed
and recorded.
18.
The commissioner also took into account the
question of inconsistency relating to the Malahlela case. This was
irrelevant. First,
the question of inconsistency was never placed as
an issue by the first respondent. No evidence was led on this.
Secondly the question
of consistency was only raised in the closing
argument. Despite the fact that the commissioner was aware that this
issue was raised
in the closing argument, he nevertheless found it
relevant.
19.
The commissioner committed a gross
irregularity in relying on the issues raised in the closing argument
and ignoring the evidence
presented. The commissioner failed to
appreciate that the applicant was not given an opportunity to present
evidence on the question
of inconsistency.
20.
In my view, the commissioner failed to
apply his mind on the evidence presented. In so doing he failed to
exercise his powers as
required by the Labour Relations Act. I am in
agreement with Mr Mokoena that the commissioner completely ignored
the applicant’s
evidence. The commissioner’s decision is
mainly based on two grounds. That is, the failure of the applicant to
submit the
video footage and the final written warning of Mr
Malahlela. The two grounds on which the commissioner relied are not
rationally
related to the evidence. The fact that Malahlela was given
a written final warning is not relevant to the guilt of the first
respondent.
It may be relevant as to the fairness of the dismissal
but it was not an issue before the commissioner. Accordingly, this
was a
bad reason which the commissioner took into account.
21.
In the light of the fact that relevant
evidence was ignored and the fact that irrelevant evidence was
considered, it cannot be said
that the award is rationally
justifiable. As a result, the award is rationally not justifiable. As
a result, the award cannot stand.
The following order is made:
(a)
The award issued by the third respondent on
4 November 2005 is hereby reviewed and set aside.
(b)
The first respondent is ordered to pay the
costs.
________________
NGCAMU
AJ
Date
of Hearing:
15 February 2007
Date
of Judgement: 23 February 2007
Appearances
:
For
the Applicant:
Adv P. Mokoena
Instructed
by:
Brink Cohen
Le Roux Inc.
For
the Respondent: Adv S.
Baloyi
Instructed
by:
Thaanyane Attorneys