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[2009] ZALCJHB 61
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Barloworld Coachworks Wynberg v Motor Industries Bargaining Council and Others (JR327/07) [2009] ZALCJHB 61 (5 May 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN BRAAMFONTEIN)
CASE
NUMBER: JR327/07
In
the matter between:
BARLOWORLD
COACHWORKS
WYNBERG APPLICANT
And
THE
MOTOR INDUSTRIES
BARGAINING
COUNCIL
FIRST
RESPONDENT
SUSAN
R HARRIS
N.O SECOND
RESPONDENT
NUMSA
OBO SAMUEL BOESMAN
THIRD
RESPONDENT
JUDGMENT
AC BASSON, J
[1] This is an application to review
and set aside the decision of the Second Respondent (hereinafter
referred to as “the
Arbitrator”) acting under the
auspices of the First Respondent. The Arbitrator held that the
dismissal was substantively
unfair and ordered the reinstatement of
Mr. Zitha (the Third Respondent – hereinafter referred to as
“Zitha”).
In addition to the reinstatement order, the
Applicant was ordered to pay Zitha the sum of R 21 900.00
representing an equivalent
of six months’ remuneration.
[2] The Applicant is Barloworld Motor
trading as Barloworld Coachworks Wynberg. The Third Respondent is the
National Union of Metalworkers
of South Africa acting on behalf of
Zitha. Zitha was employed as a wash bay attendant as from 11 May
1988. Zitha was dismissed
from the employ of the Applicant on account
of gross misconduct after having been charged and found guilty of
misappropriation
of company property which allegedly took place on 21
December 2005.
Application for Condonation
[3] There is an application for
condonation for the failure to serve the review application on the
Third Respondent’s Trade
Union timeously. The attorney for the
Applicant deposed to an affidavit setting out in detail the
circumstances surrounding service
of the application. The application
for condonation is not opposed. I have considered the application for
condonation in light
of the length of the delay; the explanation for
the delay; the prospects of success; and any prejudice the Third
Respondent is
likely to suffer. I am satisfied that a proper case has
been made out for condonation.
[4] It was briefly the Applicant’s
case that Zitha was dismissed after an incident during which he had
tried to bribe another
employee with the name of Mr. Govender
(hereinafter referred as “Govender”) from disclosing that
he (hereinafter referred
to as “Zitha”) had poured clear
coat from one container into another. At the disciplinary hearing
evidence was led
by a certain Mr. Soares (who was the initiator and
the investigator) that Govender had approached him on 20 December
2005 and enquired
as to what he should do if he caught anyone
stealing. Soares explained to Govender that he (Govender) needed to
give a full account
of what he had seen. Later that day Govender
approached Soares and explained to him that earlier on that morning
when he arrived
at his work bay, he saw Zitha in the primer bay area
pouring clear coat into another container. When Govender enquired
from Zitha
what he was doing he was offered R 20.00 to “keep
quiet”. Govender also informed Soares that he had observed
Zitha
doing the same the previous day and that he had also asked him
what was in the containers. Zitha was in the wash bay and had a
container with him. Zitha then replied “nothing”.
Govender testified that he later checked the container and found that
there was clear coat in it. Soares asked Govender to depose to an
affidavit. Govender later went to the police station and deposed
to
an affidavit.
[5] Soares also testified that on the
evening of 20 December 2005 the spray painter had collected a new can
of clear coat from the
stores. The following morning when he came to
pick it up he noticed that it was empty notwithstanding the fact that
he had only
use a small coat the previous evening.
[6] Zitha denied that he had removed
any clear coat or that he had tried to bribe Govender. He could,
however, not give an acceptable
reason as to why Govender would
falsely implicate him.
[7] On behalf of Zitha it was argued
that the Arbitrator had correctly considered and applied the relevant
legal and fairness principles
with the result that the conclusion
reached was reasonable. In the alternative, it was argued that even
if it is proven that an
offence was committed, dismissal was not
appropriate in the present case as the trust relationship was
intact; there was
no serious loss, damage or injury caused to the
business of the employer, this was a first offence; and light of the
length of
service of the employee and the age of the employee.
Review
[8] The review test has been laid down
by the Constitutional Court as follows:
“
[110] To summarize,
Carephone held that s 145 of the LRA was suffused by the then
constitutional standard that the outcome of an
administrative
decision should be justifiable in relation to the reasons given for
it. The better approach is that s 145 is now
suffused by the
constitutional standard of reasonableness. That standard is the one
explained in Bato Star: Is the decision reached
by the commissioner
one that a reasonable decision maker could not reach? Applying it
will give effect not only to the constitutional
right to fair labour
practices, but also to the right to administrative action which is
lawful, reasonable and procedurally fair.”
(
Sidumo &
Another v Rustenburg Platinum Mines Ltd & Others
(2007) 28
ILJ 2405 (CC) ad paragraph [110]
.
)
[9] The Constitutional Court in
Sidumo
also gave the following guidelines to Commissioners when they are
tasked with assessing whether or not misconduct was committed:
“
[59] The
statutory scheme requires a commissioner to determine whether a
disputed dismissal was fair. In terms
of s 138 of the LRA, a
commissioner should do so fairly and quickly. First, he or she has to
determine whether or not misconduct
was committed on which the
employer's decision to dismiss was based. This involves an enquiry
into whether there was a workplace
rule in existence and whether the
employee breached that rule. This is a conventional process of
factual adjudication in which
the commissioner makes a determination
on the issue of misconduct. This determination and the assessment of
fairness, which will
be discussed later, is not limited to what
occurred at the internal disciplinary enquiry.
[61]…….. A plain
reading of all the relevant provisions compels the conclusion that
the commissioner is to determine
the dismissal dispute as an
impartial adjudicator. Article 8 of the International Labour
Organization Convention on Termination
of Employment 158 of 1982 (ILO
convention) requires the same.”
[10] A commissioner must thus be
convinced on the evidence that the alleged misconduct did in fact
take place and that it was of
a sufficiently serious nature to
justify dismissal.
The Award
[11] The Arbitrator gave a lengthy
award in which she summarized the evidence of the various witnesses.
It is clear from the record
that the Arbitrator was confronted with
two mutually destructive versions namely that of Govender and that of
Zitha. She concluded
that the other two witnesses, Soares and Schulz,
only gave evidence on peripheral matters. She concluded that the
Applicant had
failed to prove on a balance of probabilities that
Zitha was guilty of the transgression that he was charged with. It
appears from
the award that the Arbitrator was of the view (and that
she therefore evaluated the evidence against this proposition) that
because
Govender was a single witness his evidence had to be
approached with caution. For his proposition the Arbitrator relied on
the
following extract in Hoffman and Zeffertt
The South African
Law of
Evidence 3
rd
edition at 452:
“…
. When there are
more than one witness in a case but only one who testifies on the
point in issue while the evidence of the others
relates to peripheral
matter that has no bearing on the credibility of the crucial
witness…, that former witness has to
be treated as a single
witness has to be approached with caution and that his value as a
witness … must be weighed against
factors which militate
against his credibility…”
The Arbitrator then proceeded to
evaluate Govender’s evidence. The Arbitrator identified the
following difficulties with Govender’s
evidence:
(i)
Firstly, the Arbitrator was of the view that there was a possibility
that Govender could have had a grudge against Zitha. This grudge
arose from an incident which had taken place some 7 years ago.
The
Arbitrator, however, came to this conclusion despite the fact that
Govender had stated that he bore no grudge against Zitha.
The
Arbitrator, however, came to the conclusion that, because Govender
did not state in his evidence that “
their relationship was
good
”, and the fact that Scholz saw Govender and Sitha talk
after the disciplinary hearing, does not mean that their relationship
was good. The Arbitrator concluded: “
In my opinion, Mr
Govender could have been motivated to fabricate a story. It was
common cause that Mr. Zitha still owed him money
.” I am in
agreement with Mr. Hutchinson that this conclusion amounts to pure
speculation and that it was not reasonable to
have come to a
conclusion that Govender “
fabricated a story
”.
This conclusion does beg the question why Govender would have wished
to implicate the Respondent after so many years? It
certainly would
not have assisted Govender to recouver his monies if Zitha lost his
job? If Govender had wanted to recouver his
money he could have
instituted legal action against Zitha or could have approached their
employer to assist him. The Commissioner
also does not give any
reason why she is of the view that Govender would have lied about his
relationship with Zitha.
(ii)
The Arbitrator further found that even if it was to be accepted that
Govender did not bear a grudge against Zitha over such a long period
of time, it was inexplicable that Govender did not try to apprehend
Zitha. She also drew a negative inference from the fact that Govender
did not try to call management or another employee for assistance.
She further drew a negative inference from the fact that Govender
made no attempt to obtain physical evidence of the container.
The
Arbitrator was also not impressed with Govender’s claim that he
spoke to other employees because he had feared for his
safety. The
fact that Govender had waited 3 hours before he reported the incident
was also found to be suspect in light of the
seriousness of the
offence. It is clear from this evaluation of the facts that the
Arbitrator was critical of the fact that Govender
did not report the
incident immediately. This criticism of Govender’s actions is,
however, at odds with the conclusion reached
by the Arbitrator that
Govender had a motive to implicate Zitha. If that had been so, it is
equally unlikely that he would have
waited 3 hours before he reported
the incident to management. Mr. Hutchinson also argued that
Govender’s explanation that
he was fearful of reporting a
colleague was reasonable particularly in this country where
intimidation is widespread. He also submitted
that the fact that
Zitha had tried to bribe Govender served to show that Zitha would
have gone at great lengths to keep Govender
from reporting the
incident. Why this fact should caution the Arbitrator from accepting
Govenders’ evidence is difficult
to understand. It is also
difficult to understand why a negative inference should be drawn from
the fact that Govender did not
collect evidence. It is clear from
Govender’s evidence that his sole purpose was to report the
incident and not to gather
evidence. This is also borne out by the
fact that he had spoken to several of his co-employees before
reporting the incident to
management.
(iii)
The Arbitrator was also critical of the affidavit deposed to by
Govender.
She also found that the Applicant had regarded the
affidavit deposed to by Govender to be “
the ultimate
deciding factor
” whereas the probative value of such an
affidavit is questionable. The Arbitrator then went on to evaluate
the evidence of
Govender in detail. It is clear from the award that
she is highly critical of Govender’s evidence: For example, the
Arbitrator
drew a negative inference from the fact that Govender made
no mention in his affidavit that clear coat has fallen from the
container.
However, what the Arbitrator overlooks is the strong
corroborative evidence given by Soares who investigated the matter.
He gave
evidence that he noticed that there were drops of clear coat
in the wash bay area where Zitha worked. Moreover, the evidence shows
that there was a quantity of clear coat missing and unaccounted for.
I also agree with Mr. Hutchinson that it is unreasonable to
have
treated Govender as a witness as a single witness and therefore treat
the evidence with caution yet at the same time ignore
corroborating
evidence. The fact that evidence of drops of clear coat was found by
Soares in the washing area and the fact that
clear coat was missing
are factors that should have been taken into account by the
Arbitrator. The fact that this evidence existed
and which was not of
the making of Govender, also renders the conclusion that Govender had
fabricated a story completely unreasonable.
[12] Regarding the evidence of Zitha,
the Commissioner crisply concluded that he offered a credible
explanation and that he did
not contradict himself on material
issues.
[13] I am in agreement with the
submission that the Arbitrator erroneously relied on the cautionary
rule in respect of single witnesses.
I am further in agreement that
this amounted to a material legal error and constituted a gross
irregularity in the proceedings
and resulted in the Applicant being
denied a fair trail. More in particular, I am in agreement that this
erroneous approach had
a material influence on the ultimate outcome
of the proceedings as the ultimate “
purpose of the
cautionary rules is to assist the court in deciding whether or not
guilt has been proved beyond reasonable doubt
” (
Law of
Evidence
at 798). The cautionary rule against a single witness
cannot be applied as a general rule. See in this regard
S v Sauls
& Others
1981 (3) SA 172
(A) at 180D-G:
“
In R v T
1958 (2) SA 676
(A)
at 678 OGILVIE THOMPSON AJA said that the cautionary remarks made in
the 1932 case were equally applicable to s 256 of the
1955 Criminal
Procedure Code, but that these remarks must not be elevated to an
absolute rule of law. Section 256 has now been
replaced by
s 208
of
the
Criminal Procedure Act 51 of 1977
. This section no longer refers
to "the single evidence of any competent and credible witness";
it provides merely that
"an accused may be convicted
on the single evidence of any competent witness".
The absence of the word "credible"
is of no significance; the single witness must still be credible, but
there are, as
Wigmore points out, “indefinite degrees in this
character we call credibility". (Wigmore on Evidence vol III
para 2034
at 262.) There is no rule of thumb test or formula to apply
when it comes to a consideration of the credibility of the single
witness
(see the remarks of RUMPFF JA in S v Webber
1971 (3) SA 754
(A) at 758). The trial Judge will weigh his evidence, will consider
its merits and demerits and, having done so, will decide whether
it
is trustworthy and whether, despite the fact that there are
shortcomings or defects or contradictions in the testimony, he is
satisfied that the truth has been told. The cautionary rule referred
to by DE VILLIERS JP in 1932 may be a guide to a right decision
but
it does not mean
"that the appeal must succeed
if any criticism, however slender, of the witnesses' evidence were
well founded"
(Per SCHREINER JA in R v Nhlapo (AD
10 November 1952) quoted in R v Bellingham
1955 (2) SA 566
(A) at
569). It has been said more than once that the exercise of caution
must not be allowed to displace the exercise of common
sense”.
[14] Case law and the Civil
Proceedings Evidence Act 25 of 1965 also confirm that reliance may be
placed on a single witness. See
Daniels General Accident Insurance
v Co Ltd
1992 (1) SA 757
(C) where the Court held that:
“
It is of course competent
for a court to find in favour of a party on the strength of the
evidence of a single witness - s 16 of
the Civil Proceedings Evidence
Act 25 of 1965, which provides that judgment may be given in any
civil proceedings on the evidence
of any single competent and
credible witness.”
[15] It is clear from the authorities
that the cautionary rule only applies in circumscribed circumstances
and is confined to criminal
proceedings. It has no place in civil /
arbitration proceedings.
[16] I am thus of the view that the
reliance on the cautionary rule in the manner in which it was done by
this Arbitrator was misplaced
and resulted in a decision which no
reasonable commissioner could have arrived at.
[17] Apart from this misplaced
reliance on the cautionary rule, I am of the view that there are
other reasons why the award reached
is not reasonable. The
Arbitrator’s assumption that Govender bore a grudge is not
supported by his own very clear evidence.
He testified that he had
written off the money that was owed to him and that he had not
complained to Soares about it. Soares also
confirmed that there was
nothing wrong with the relationship between Govender and Zitha. The
conclusion that Govender fabricated
the story amounts to complete
speculation. The Arbitrator’s criticism to the effect that
Govender did not obtain physical
evidence is equally misplaced. In
conclusion, the Arbitrator also overlooked strong corroborating
evidence that supported Govender’s
claim. When Soares
investigated the matter, he noticed that there were drops of clear
oat in the wash bay area where Zitha worked.
Soares also confirmed
with the painter that clear coat was missing.
[18] I am in light of the aforegoaing
persuaded that the decision arrived at by the Arbitrator is
unreasonable. I am willing to
substite the award by a decision that
the dismissal of the Third Respondent was fair.
[19] In the event the following order
is made:
1.
The application for condonation for the late service of the review
application on the Third
Respondent’s representative is
granted.
2.
The dismissal of the Third Respondent Samuel Boesman Zitha was
substantively fair.
3.
There is no order as to costs.
___________________
AC
BASSON, J
5
May 2009
On
behalf of the Appliant:
W
Hutchinson. Instructed by Fluxmans Attorneys
On
behalf of the Respondent:
H
Sibyi. Instructed by Themba Mabasa Attorneys.