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[2008] ZALCJHB 22
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Senama v Commission for Conciliation Mediation And Arbitration and Others (JR1353/04) [2008] ZALCJHB 22 (30 April 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
Held
at JOHANNESBURG
CASE
NO: JR1353/04
In
the matter between:
CHARLES
SENAMA
APPLICANT
And
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
FIRST
RESPONDENT
RUSSELL
MOLETSANE
SECOND
RESPONDET
COCA
COLA CANNERS OF
THIRD
RESPONDENT
SA
(PTY) LTD
JUDGMENT
MOLAHLEHI J
Introduction,
[1]
This is an application to review and set aside the arbitration award
issued by the second respondent (the Commissioner) under
case number
GA28085-03 dated 28 April 2004. The review application was
dismissed by this court with costs on the 23
rd
November
2007. The applicant has now requested reasons for the order.
The reasons are set out hereunder.
The
ground
[2]
The applicant, the former employee of the respondent was charged and
found guilty in that during December 2002, he unlawfully
entered the
premises of the respondent with his blue Isuzu van registration
number JHF 848 GP and removed the stock belonging to
the applicant
without authority. He was found not guilty of the second charge
of damaging the company property with “
intent
to commit an act of theft”.
[3]
The case of the third respondent during the arbitration hearing was
that it lost about R4238.00 of stock during the month of
December
2002. As a result of this loss the respondent conducted an
investigation which pointed out that on 25
th
December 2002, a blue Isuzu van registration number JHF 848 GP
entered the warehouse of the respondent and collected stock.
The investigation further revealed that the vehicle in question was
registered in the applicant’s name.
[4]
The case of the applicant is that during the dates when it is alleged
that the stock was removed from the warehouse he was on
leave which
commence from 20 December 2002 to the 13 January 2003.
[5]
In relation to the ownership of the Isuzu van in question the
applicant testified that he purchased the van on behalf of Mr
Mogofe
(Magofe). However during cross examination he testified that
the first time he heard that the van was registered in
his name was
at the disciplinary hearing. The explanation he gave for not
putting the record straight as far as the ownership
of the car was
concerned at the disciplinary hearing was that he was confused.
He further conceded that for Mogofe to transfer
the vehicle
registered in name he would have been required to produce his
identity document. Later on and during the cross
examination he
testified that Magofe went to his home and obtained his identity
document from his wife to register the car in his
name.
[6]
Mogofe testified that he had been the owner of the van since August
2001 and he never or at any stage gave the van to the applicant.
He further testified that on the 24 and 25 December 2002, the day on
which the respondent alleges that the van was seen at the
scene of
the theft he was in Zuurbekom in Gauteng. He claims to have
left Zuurbekom on the 26 December at 14h00 at night
for Durban.
He also testified that when he got the car he found that it was
already registered in the applicant’s name.
[7]
During cross examination Mogofe disputed the allegation of the
applicant that he took his identity document from his wife and
then
registered the van in his name. According to Magofe he took the
identity document for the purposes of paying for the licence
of the
vehicle. He further testified that during July 2003 the ownership of
the van was transferred to a certain Andries Thobejane
and when asked
why it was not registered in his name he indicated it was due to
domestic problems.
Ground
for Review and the Award
[8]
The grounds for review are set out at the end of the founding
affidavit of the applicant as follows:
“
The
commissioner failed to apply his mind to the relevant evidence.
Considered evidence not placed before him and failed to attach
sufficient weight to certain evidence.
“
The
commissioner committed misconduct in relation to his duties as a
commissioner and further more exceeded his powers in making
findings
that were not justifiable on the material before him. The
commissioner erred in law in failing to apply the civil
burden of
proof in determining the fairness of the dismissal of the applicant”.
[9]
During argument the representative of the applicant argued that the
commissioner misdirected himself in placing too much emphasis
on the
evidence of the disciplinary hearing but placed no weight on the
evidence presented during the appeal hearing. It
was further
argued that the commissioner placed undue emphasis and weight on the
fact that the applicant was at the time of the
commission of the
offence the registered owner of the car. It was argued in this
regard that this evidence was inadequate
to prove on the balance of
probability that the applicant was guilty of theft. To
this extent reliance was placed on
the case of
Prins
v CCMA & Others
(2005) 2 BLLR 159
(LC)
where it was held that a commissioner misconducted himself or herself
as an arbitrator in basing a conclusion that an employee
was guilty
of theft on inadequate and contradictory evidence.
[10]
Further reliance was placed in the case of
National
Union of Security Officers and Guards & Another v Minister of
Health and Social Welfare Services, Western Cape &
Others 205
5
BLLR 373
(LC)
where it was held that
where a commissioner rejects an employees evidence on the basis of an
adverse credibility finding and ignoring
material facts before him,
that will constitute misconduct on the part of the commissioner.
[11]
I invited the applicant representative, during argument, to address
me on the finding of the commissioner relating to the failure
by the
applicant to disclose the ownership of the car during the
disciplinary hearing. The applicant’s representative gave
two
reasons for failure to disclosure the ownership of the van. The
first reason is that which the applicant gave during
the arbitration
hearing that he was confused because the charge did not stipulate
which car had entered the premises of the applicant,
and the second
that he was advised by his union not to discuss the issue of the
ownership of the van. Nothing in the record
reveals why the
union had advised him not to disclose the ownership of the van.
[12]
Turning to the arbitration award, the commissioner firstly found
that the dismissal was procedurally unfair because the respondent
failed to follow its own disciplinary procedures and in this regard
ordered payment to the applicant in the amount of R9321.00
which is
equal to one month compensation.
[13]
In as far as substantive fairness is concerned the commissioner
rejected the version of the applicant and found that he had
failed to
provide a plausible reason as to why he only disclosed the issue of
the ownership of the van at the arbitration hearing.
The
commissioner reasoned that the reason why the applicant did not
disclose the true ownership of the van is that he was an accessory
to
the theft. In finding against the applicant the commissioner
relied on the evidence of Nkabinde, the security officer
who
testified that he had seen the van in question collecting stock and
leaving the premises. The commissioner found him to be
a reliable
witness.
[14]
The commissioner further found that the case of the applicant was
weakened by his own witness, Mogofe who testified that the
applicant
got married on the 27 December 2002 in Zuurbekom Gauteng whereas the
applicant testified that he was in Limpopo during
that period.
The commissioner also found that there was collusion between Magofe
and the applicant.
Evaluation
[15]
It is apparent from the reading of the award that in finding the
dismissal to be substantively fair, the commissioner drew
an adverse
inference against the applicant. In other words the
commissioner was satisfied that the third respondent had discharged
its burden of showing that dismissal was fair.
[16]
It is an established principle of our law that the court of review
should be reluctant to interfere with the credibility findings
made
by the commissioners, as tiers of facts.
See
Cose v CCMA & Others (2001) 21 ILJ 137 (LC) and City Lodge Holds
Ltd v Geldenhuys N.O & Others (1999) 20 ILJ 2332 (LC).
[17]
The test for determining whether or not to interfere with the award
of a commissioner has been set out in
Sidumo
& Others v Rustenburg Platinum Mines
(2007) 12 BLLR 2405
as
being that of a “reasonable decision maker.” In terms of
this test this court is entitled to interfere with an arbitration
award only if the commissioner makes a decision that a reasonable
decision maker could not reach.
[18]
A reasonable decision is reached when a commissioner in performing
his/her functions as an arbitrator applies the correct rules
of
evidence, and if there is to be deviate it is not of such
a nature that it materially denies any party a fair
hearing.
[19]
It is also required of the commissioner to weigh all the relevant
factors and circumstances of the case before him or her to
ensure
that his decision is reasonable. In this regard the Labour
Appeal Court in
Edcon Limited v Pillemar N.O. & Others
(unreported DA4/06
) the court held:
“
The
court’s function primarily is to ensure that decision made by
arbitrators exercising their functions under the Labour
Relations Act
fall within the bounds of reasonableness
”
See
also Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA
490.
[20]
In the present case, the commissioner’s finding that the
dismissal of the applicant was substantively fair, is
based on the
proper evaluation of the circumstances and the evidence that was led
during the arbitration hearing. The commissioner
has given the
reason why he accepted the version of the respondent and rejected
that of the applicant.
[21]
It is therefore, my view that the applicant has failed to show
the basis upon which this court should interfere with
the decision of
the commissioner.
[22]
For the above reasons the application stands to be dismissed.
In my view the dictates of law and fairness do not require
that costs
should follow the results.
[23]
I accordingly, make the following order:
1.
The application to review and set aside the
award dated 28 April 2004 and issued under case number GA28085-03, is
dismissed.
2.
There is no order as to costs.
______________
Molahlehi
J
Date
of Hearing: 18 September 2007
Date
of Judgement: 30 April 2008
APPEARANCES
For
the Applicant: FOOD ALLIED WORKERS UNION
For
the Respondent: DENEYS REITZ