About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2007
>>
[2007] ZALCD 10
|
|
Miya v Combined Transport Services and Others (D713/03) [2007] ZALCD 10 (26 June 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO
: D713/03
DATE
:
2007/06/26
In
the matter between
BUHLE
Z
MIYA
Applicant
and
COMBINED
TRANSPORT
SERVICES
1
st
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
2
nd
Respondent
COMMSSIONER
A DEYZEL
3
rd
Respondent
JUDGMENT
DELIVERED BY
THE
HONOURABLE MR ACTING JUSTICE CELE
ON
26 JUNE 2007
CELE
AJ
[1]
This is an application in terms of section 145 of the Labour
Relations Act 66 of 1995 (hereafter referred to as “the Act”)
to review and set aside an arbitration award dated 12 October 2003
issued by the third respondent under the auspices of the second
respondent.
[2]
The first respondent, in whose favour the award was issued, opposed
the review application.
[3]
The applicant was employed by the first respondent as a bus driver.
For cash-paying passengers he had to issue tickets.
Some of the
passengers would be using coupons. The applicant was on duty on
30 May 2001. He had to start his tour
of duty at
Ekukanyeni at Inanda at about 04:55 on the route from Inanda or
Ekukanyeni to Lorne Street in Durban. He drove
down to Durban
and then came back and whilst he was at Inanda, I think it was, at
the second trip two bus inspectors came in to
do their routine
inspection. These were Messrs Thembe and Mtolo. Upon that
inspection it came to light that eight passengers
were without
tickets. It would appear that this matter was discussed between
the driver, Mr Miya, and the inspectors.
[4]
The applicant was subsequently charged with an act of misconduct.
It was sort of framed in that the inspector found eight
people
without tickets in a bus driven by him. The matter was set down
for a disciplinary hearing. He arrived there
but he did not
stay. As the hearing was about to commence he then appears to
have walked out. What happened thereafter
is in dispute but
what is clear is that out of that sitting he was then dismissed.
[5]
He was not satisfied and then he referred a dispute about an unfair
dismissal to the CCMA and the matter was not resolved.
He
referred it to arbitration which also finalised the matter.
Once it was finalised – I have not checked but one of
the
parties was not happy.
[6]
The matter was submitted to this Court for a review which was
successful. It was sent back for a second arbitration hearing.
[7]
It is the outcome of that hearing which is before this Court.
It is before this Court because the commissioner in his
award found
that the dismissal was substantively and procedurally fair and he
found that the applicant was not entitled to any
relief. That
award issued by Commissioner Deyzel is the subject of the review
today.
[8] The grounds for
review. As indicated the applicant relies on section 145 and has
proffered the following:
1.
that the commissioner failed to consider and to properly evaluate
relevant and admissible
evidence placed before him;
2.
that he failed to assess the evidence and argument presented to him
in any adequate
way, or at all;
3.
that he failed to weigh up probabilities at all and/or in an adequate
way;
4.
that he failed to assess the credibility of some and/or all witnesses
at all and/or
in any adequate way;
5.
that he issued an arbitration award which is not justifiable in
relation to the reasons
given for it;
6.
that he reached conclusions which are not capable of reasonable
justification when
regard is had to the factual premise on which they
are based;
7.
that he failed to take into account relevant considerations and made
findings which
are not supported by the evidence;
8.
that he issued an arbitration award which is not appropriate, and
thereby exceeded
his powers; alternatively
9.
that he issued an award which is unreasonable and/or grossly
unreasonable.
[9]
Coming very briefly to the award itself, the commissioner conceded
that there were contradictions in the evidence of the witnesses
of
the first respondent but, having made that observation, he still
found that on the probabilities the evidence of the first respondent
was satisfactory enough and rejected that of the applicant.
[10]
One important witness in the hearing was a Mr Ngcobo. According
to the applicant, Mr Ngcobo would have – firstly,
according to
his version, he said that just before he started his tour of duty he
was fidgeting with the machine. I think
he was setting it
right, trying to attend to the first passenger when a number of
tickets got released when the button he was pressing
on the machine
got stuck. That resulted in a number of R6 tickets being issued
without any money corresponding to that coming
his way through the
customers so he gave the first ticket to the first passenger who came
in and then went on to work. It appears
that the machine was then
fine but on the way as he drove Mr Ngcobo, an inspector, came in and
he explained his predicament and
Mr Ngcobo understood and then told
him to make use of these tickets. So if there would be any
passenger who would be paying
R3 and there would be two of them he
would have to issue one ticket for the two persons. Mr Ngcobo
at some stage alighted
from the bus and as the bus went on, somewhere
along the line, it would seem Mr Ngcobo may have been using a motor
vehicle because
at the crossroad that is in KwaMashu Mr Ngcobo
again boarded the bus and asked whether there were still any R6
tickets available.
The applicant told him that he had not used
all of them and so he was advised by Mr Ngcobo, who was standing next
to him, that
he could still continue to use such R6 tickets. He
parted ways with Mr Ngcobo. He continued with his duties and
thereafter
later on in the day the two inspectors came in and,
according to him, when they came in, that is Inspectors Mtolo and
Thembe, he
then explained to them what had happened and the
instruction which he had received. Apparently they were not too
happy with
that explanation and that led to him being charged.
[11] In the two
arbitration hearings that were conducted it would appear from the
issues between the parties that Mr Mtolo gave
two conflicting
versions. In the first hearing, the initial one, around the
question of the issue of the replacement tickets
to balance up when
it was found that there was a problem with eight people without
tickets, Mr Mtolo’s evidence was that
the inspectors had
instructed the applicant to issue the replacement tickets. When
it came to the second arbitration hearing
Mr Mtolo’s version
was that they had not issued such instructions to the applicant but
he dialled these all by himself, knowing
the wrong that he was up and
about which was obviously a very material contradiction in this
respect. But from the record
it would appear that Mr Mtolo
seemed not to have recalled very well his evidence because it would
seem to be a version of his opinion,
that he was giving his opinion
that he thought that the applicant had been given instructions.
It would seem to be that about
the instruction was more of an opinion
that a direct instruction but it would seem from the records that he
did give these two
conflicting versions because when one looks at the
award itself, the commissioner does recognise it and notwithstanding
that he
does find in favour of the first respondent. In the
inquiry again there are obviously two versions given by Mtolo as to
what
happened but I need not waste any time there.
[12]
I come back to the evidence of the applicant vis-à-vis that of
Ngcobo. I think it is critical to look at the two
versions
because if the version of the applicant were to be sustained to be
probably true it could seek to explain the reason why
he acted as he
did. Mr Ngcobo came across initially as a witness who knew what
he was testifying about but later on when
he was cross-examined it
appeared clear that he did not have a clear memory of the incident
that he was testifying about.
That is why the commissioner in
his assessment of the evidence suggested Ngcobo was not deliberately
lying but rather that he was
merely testifying about a routine
practice, going to Pinetown and working there, and that he did not
really intend to lie but it
is clear from a proper conspectus of the
evidence that Ngcobo gave that his evidence was just a contradictory
version which could
not be safely relied upon, and on that score
alone one would then have expected that when the evidence of the
first respondent
through Ngcobo is measured against that of the
applicant, the applicant’s version should have been sustained.
[13]
Coming then to the version of Mtolo and Thembe, where there were
contradictions again in respect of Mtolo who testified in
the second
hearing, where there were contradictions again the commissioner
should have, in my view, not quickly accepted the version
of the
first respondent because when one looks at the explanation around the
replacement tickets it tells a story. If it
is true that the
inspectors did instruct the applicant to issue the replacement
tickets it would be because there would have been
an explanation that
would have been proffered by the applicant and if that explanation
was tendered it would seem to be the only
explanation that would have
been around Ngcobo because there is no other explanation. The
second version begs the question,
why would he then dial on his own
and why would Mtolo change that version? The second version
should have cast doubt as to
the truthfulness of the evidence of
Mtolo because of the first version, which first version would
probably have been in favour
of the applicant, suggesting that the
applicant had proffered an explanation. So there should have
been doubt in the mind
of the commissioner when looking at the two
versions that Mtolo presented around a replacement ticket and that
doubt itself should
have gone a long way in favour of the applicant.
[14]
In my view therefore the commissioner committed a serious error when
he began to evaluate the evidence of the first respondent
through its
witnesses, particularly in relation to the first and the second
versions presented by Mtolo around the issue of the
replacement
tickets and in my view that evidence was very critical in the
decision-making process.
[15] I share the same
view therefore with the applicant that the manner the commissioner
went about in assessing this evidentiary
material was marred with a
serious error and that itself alone allows me to review the award.
[16]
I come to the second aspect relating to the question whether or not,
being faced with this kind of allegation that the commissioner
was
right in coming to the assumption that he, did but I think I need not
waste much time on that because I have already found
that the
assessment of the evidentiary material was incorrect and that
therefore I need not even go further and look at the effect
the
incident of 21 May would have on the question whether or not the
applicant ought to have been dismissed.
[17]
This is one of those unfortunate cases where evidence is lying all
over the documents here because there was a reconstruction
and
because there were two hearings.
[18]
I do not think this is a case which is appropriate for me to even
find in favour of the applicant and say that he was unfairly
dismissed. I do not think this is a case where the nature of the
evidence that is before me justifies that I should accede to the
order prayed for in paragraph 1 of the notice of motion, namely to
reinstate the applicant with retrospective effect. I think
it
would be unfair in the light of the nature of the evidence that is
before me.
[19]
The unfortunate situation that I find confronting me is that the
matter should again be referred for another arbitration hearing
before another commissioner. Seeing that it would be the third
time round, I would urge the second respondent to expedite
the matter
by prioritising it and setting it down for an earlier hearing,
firstly. Secondly, I would urge the parties to
desist from
allowing the practice there to prevail which will result in any
problems, that the matter be started
de
novo
in such a manner as not to cloud
the hearing itself.
[20]
I do not think it is a case where any party should be punished with a
costs order so no costs order is granted.
[21] The matter is
accordingly referred to the second respondent for a
de novo
arbitration hearing.
-
- - - - - - - - - - - - - - - - - - - - - -
_________________________
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO
: D713/03
DATE
:
2007/06/26
In
the matter between
BUHLE
Z
MIYA
Applicant
and
COMBINED
TRANSPORT
SERVICES
1
st
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
2
nd
Respondent
COMMSSIONER
A DEYZEL
3
rd
Respondent
JUDGMENT
DELIVERED BY
THE
HONOURABLE MR ACTING JUSTICE CELE
ON
26 JUNE 2007
ON
BEHALF OF THE
APPLICANT
IN
PERSON (?)
ON
BEHALF OF THE 1
st
RESPONDENT
MS
C NEL (?)
EXTRACT
Judgment
delivered on 26 June 2007