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[2009] ZALCCT 1
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Coca-Cola Canners Of Southern Africa (Pty) Ltd v Abrahams and Others (C77/2008) [2009] ZALCCT 1 (30 March 2009)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT CAPE TOWN
CASE
NO
:C77/2008
DATE
:11
MARCH 2009
NOT
REPORTABLE
In
the matter between:
COCA-COLA
CANNERS OF SOUTHERN
AFRICA
(PTY)
LIMITED
Applicant
and
L
ABRAHAMS
1
ST
Respondent
COMMISSIONER
FOR CONCILIATION MEDIATION
AND
ARBITRATION
2
ND
Respondent
VUYISA
MAZWI
N.O
3
RD
Respondent
JUDGMENT
CELE,
J:
The
application before me is one brought in terms of
Section 145
of the
Labour Relations Act, 66 of 1995
, hereafter referred to as the Act.
It is intended thereby to review and set aside an arbitration award
dated 7 January 2007
issued by the third respondent as a Commissioner
of the second respondent. The award was issued in favour of the
first respondent,
Mr Abrahams, who opposed the review application.
Mr
Abrahams was in the employ of the applicant as a forklift driver for
about fifteen years. Relations between him and his wife
took a turn
for the worse. His wife, Mrs Maria Abrahams, then took an electric
power drill from the house which had been brought
by Mr Abrahams and
submitted it to Coca-Cola, that is to the applicant in these
proceedings. She reported to the applicant
that it had been
brought to her house, or to their common house, by her husband.
On receiving the report the applicant charged
Mr Abrahams with a
misconduct charge described as unauthorised possession of company
property, the electric power drill was the
subject matter.
He
was found to have committed the act of misconduct with which he was
charged and he was dismissed. Needless to say he was
aggrieved
by this. It happened at a time when he had moved out of the common
household because him and his wife had become estranged.
He
then referred this dismissal dispute for conciliation and
arbitration. Commissioner Suzanne Harvey of the second
respondent
found in an arbitration award dated 10 February 2006 that
the applicant had failed to prove that the drill belonged to it, and
she ordered the applicant to reinstate Mr Abrahams. The
applicant was aggrieved by the finding and the order and it then
applied for the review of the proceedings.
After
the papers had been prepared both parties agreed that the arbitration
award was to be reviewed and set aside. The settlement
agreement
which they then agreed to in that regard was made an order of Court
and the matter was remitted to the second respondent
for an
arbitration hearing before another Commissioner. The settlement
agreement had then been made an order of Court on
20 March 2007.
The
matter then came before the third respondent as appointed
Commissioner to arbitrate it. He found the dismissal to have been
unfair and he ordered the applicant to reinstate Mr Abrahams with
retrospective effect.
The
applicant has now initiated the present proceedings.
The grounds for
review
In
summary the applicant says that the third respondent issued an award
that was unreasonable, if I use today’s review test,
unreasonable in that no reasonable decision maker could have reached
it, and that the third respondent committed a gross irregularity,
that he exceeded his powers. These were elaborated in the
founding affidavit.
The following are brief
substantiation of the review grounds.
Ø
The third respondent rejected the evidence
of Mrs Abrahams primarily on the basis that she had gone through an
acrimonious divorce
from Abrahams, the third respondent held that Mrs
Abrahams had handed the drill in to the applicant as an act of
vengeance against
her husband. The third respondent appeared to
have rejected Mrs Abrahams’ evidence in total on this basis.
Ø
In rejecting Mrs Abrahams evidence the
third respondent further relied on a completely irrelevant
consideration namely that Mrs
Abrahams had an alternative option of
dropping off the drill at the place of residence of Mr Abrahams'
mother, because she knew
where that place was. This finding has no
bearing whatsoever on the question of whether the drill belonged to
the applicant.
Given Mrs Abrahams’ version it made
eminent sense for her to have returned the drill to the rightful
owner, as opposed to
Mr Abrahams’ mother.
Ø
The third respondent in addition apparently
found that Mrs Abrahams was involved in some form of romantic
relationship with Mr Steyn.
This conclusion bears no relation
to the evidence before the third respondent, and borders on bizarre.
Ø
The third respondent made the equally
baseless finding that it was Steyn who in fact stole the power drill
from the applicant around
the same time as his timesheet fraud
against the applicant. This was 1997 to 1998, at least six
years prior to allegedly
stealing the drill, or selling the drill to
Mr Abrahams. The submission is as I have indicated the award is
unreasonable,
that the unreasonable reasoning of the third respondent
in relation to the drill belonging to the applicant – the
applicant
says it would have been immediately apparent to Mrs
Abrahams upon a momentary inspection of the drill that it was the
property
of the applicant, since the drill to this date retains
certain identifying marks such as a red number 10. This
inter
alia
seriously called into question the
third respondent’s finding that there is no evidence to suggest
that Mr Abrahams would
have been aware that the drill belonged to the
applicant, and finally the third respondent’s acceptance of
Abrahams evidence
over that of the applicant’s witnesses in
itself constituted an irregularity given that Mr Abrahams evidence
was replete
with inconsistencies and contradictions.
Ø
Mr Abrahams' evidence was inherently
unreliable and ought to have been rejected out of hand, by
impermissibly rejecting the evidence
of the applicant’s
witnesses the third respondent failed to apply his mind to the
material issues in dispute and prevented
a fair trial of the issues.
In
terms of
Rule 7(A)(8)
of the Rule for the proper conduct of these
proceedings the applicant did amplify the review grounds and it
pointed out the problems
with the status of the record.
The arbitration
award
I
then looked very briefly at this award which has been assailed upon.
This
is how the Commissioner dealt with it, I deal in brief with a number
of chief findings that he made. He says the respondent
is
enjoined to prove that the dismissal of the applicant was fair on a
balance of probabilities in terms of
Section 192(2)
of the Act.
He says that the applicant had no qualms accepting that the drill
submitted as an exhibit at the arbitration
was probably his. He
however contended that he did not know that the drill belonged to the
respondent. The two official questions
emanating from this contention
are whether the drill belonged to the respondent and whether the
applicant knew that it belonged
to the respondent.
The
Commissioner then analysed the evidential material that unfolded
before him and made various findings in relation thereto in
terms of
which version to accept and he preferred the version presented to him
by Mr Abrahams as opposed to the version of Mr Steyn,
Mrs Abrahams
and Miss Hopley. He concluded that the applicant had failed to
prove the infraction complained of and then ordered
reinstatement.
He
said the following towards the concluding remarks;
“
In
my view the evidence of the respondent’s witnesses was flawed.
Not that the applicant’s evidence was immune
from flaws
either. The applicant had occasions of contradicting himself as
well. For instance, he testified at the last arbitration
that they
were friends with Steyn yet at the previous arbitration he did not
say so. The applicant also talked about being
in possession of
R70-00 for the first time at the last arbitration. In the previous
arbitration he only talked about R50-00.
However, even though the
applicant’s version has these and other inconsistencies and
contradictions, the bottom line is that
the respondent’s
version suffers from the similar defect. To the extent that the
respondent is the onus bearing party
(sec 192
(2) of the LRA), the
respondent must still fail on that basis.
In the
event the onus has not been discharged and the dismissal was
substantively unfair. The applicant wants reinstatement.
At one
point the respondent contended that the applicant’s position
was no longer available due to restructuring. In
fact Donald
said that the respondent was “currently looking at
restructuring” which means that the process has not
been
completed. Moreover, there is no evidence to suggest that if
the applicant was reinstated it was not possible to consult
on
possible alternatives that could save him from dismissal. For
instance the applicant may consider working on another position,
a
demoted position, short time, or any other viable alternative.
I must further point out though that even the reasoning
that the
applicant was not wanted back due to restructuring was also
contradicted by the respondent’s other witness, Hopley.”
He
then ordered the applicant to reinstate Mr Abrahams with
retrospective effect.
The
most important findings though that the Commissioner made are those
that deal with how he viewed the performance of the witnesses
before
him. He discredited Mr Steyn and explained why. It’s
common cause that Mr Steyn after he had left the
employment of the
applicant came back, posed and pretended to be another employee, used
the clock card of another employee and
committed fraud to the
applicant. He admitted so during the arbitration hearing, and
he did say that because he had been
injured on duty he felt that he
had not been properly treated and felt that he had to, he had an axe
to grind in fact with the
applicant.
At
that time he was about – I think he left the company in the
year 2002, but I think the fraud was committed either in 2002
or in
2003, but that appears to have been the time more or less when this
power drill disappeared only to find its way to Mr Abrahams
in about
2004.
The
Commissioner dealt with the evidence of Mrs Abrahams as to when the
drill was brought into the house, she said that it was brought
in in
1994, and he made a finding that that evidence was inconsistent and
compared that with her evidence in the previous arbitration
hearing,
where she had said that it had been brought in, in 2004.
I
am more than willing to find that in fact she made a slip of tongue,
to say that it was in 1994 that the drill was brought in.
Because clearly so we have Mr Abrahams evidence as well here, it is
not as if he’s totally denying anything about the drill,
he has
the evidence that it did come to his possession in about the same
period of time.
The
main issue however relates to whether or not the applicant has
succeeded in producing evidence of a strong enough nature to
suggest
that the tool in question belonged to it. Even at the beginning
of the hearing of this matter I pointed out that
this was in my view
the main consideration and I asked Mr Lesley to address me on it.
On numerous occasions he used testimony
of Mr Abrahams to try and
indicate that the tool in question belonged to Coca Cola, or the
applicant. In my view the onus
rested on the applicant to show
that the tool in question was its property, secondly that its
possession by Abrahams in the circumstances
was unlawful. Once
that is achieved then and only would Mr Abrahams bear the onus, which
should have shifted, to show that
he had a lawful possession.
It would be unfair to begin by placing the onus on Mr Abrahams and
look at his version.
It must be remembered that there is
significance in placing the onus where it belongs, because if it has
not been discharged it
will be inappropriate to visit the other
party’s version and to criticise it, except to the extent that
it tends to support
the party that bears the onus.
Ms
Hopley’s evidence suggests that the tool in question apparently
belongs to the applicant, but she was not conclusive in
her evidence,
she did not sound very much convinced. She says she assumes or
she presumes in the light of the pointers, in
the light of the
description given to it by Mrs Abrahams.
One
can understand her position because firstly she was a Human Resources
Manager, I do not think that she was dealing with the
tools, she is
not the right person who should have been brought to testify on
whether or not that tool belonged to the applicant.
There is a
factory that uses tools, there would be people in charge of that
place, none of them were called to come in and identify
the tool,
which was very easy to do.
The
second problem relates to the recording. It’s common
cause that in 1995 there was a change that the applicant used
in the
recording of his equipment, there was a record, register, that was
portable, they changed to an electronic system. It would
appear that
there was a serious problem during that change because from 1996
onwards the records of the applicant about the tool
in question are
silent. This is where there is a big problem about this case,
this is where both Commissioners who had the
opportunity to look at
the evidence tendered by the applicant commented on, they both in my
view very correctly found that this
was material evidence, it was
critical and that it fell short of producing proof to indicate that
the tool that was found was a
tool belonging to the applicant, it was
a tool that the applicant wanted to retain as its own property, and
therefore that its
possession by Mr Abrahams under the circumstances
was unlawful. This is where the case of the applicant falls
flat.
We
are talking of a period from 1996 to a period 2005, it’s a
sizeable period and the alleged unlawful possession happened
here,
that is why, as Ms Golden has referred me, the first commissioner
looked at it and said but anything could have happened
to this tool,
it could have been written off. Here one is investigating objectively
on what probably may have been the position,
it may have been written
off for instance as the first commissioner had suggested. I see
that the second commissioner tended
to follow suit. He tended to
adopt the reasoning of the first commissioner. I am aware that
Ms Golden avers that the two
Commissioners could never arrive at a
similar conclusion for no apparent reason. Obviously the second
commissioner had the benefit
of having looked at the other’s
award, that’s why he also talks about the first award in his
arbitration award.
In
my view there is indeed a lack of evidence that goes towards proving
on a balance of probabilities that the tool found was a
tool of the
applicant. It can therefore not be reasonably concluded that
the possession by Mr Abrahams in the circumstances
was unlawful or
unauthorised. In my view it becomes unnecessary to go and look
at how Mr Abrahams performed as a witness,
I just can say it in
passing that I have suspicions that Mr Abrahams also may have told
lies, but what is the relevance of that.
For so long as the
onus is not discharged by the applicant the matter should have
stopped there. To try and shift the onus and
go and look at evidence
by Mr Abrahams and supplement what was supposed to be produced by the
applicant was neither here nor there.
I am mindful of the fact
that the Commissioner here commented, very briefly on why he rejected
the evidence of the applicant and
why he accepted the evidence of Mr
Abrahams. It will be noted in my judgment that I have referred to the
criticisms that he levelled
against the evidence of Mr Abrahams, but
notwithstanding that he still sustained it. In terms of where
the onus lay I agree
with him. In terms of giving brief reasons
and as he is bound to do so in terms of
Section 138
of the Act I find
that he said as much as was necessary in the circumstances.
Accordingly
in my view the arbitration award issued by the third respondent in
these proceedings cannot be faulted. It cannot
be said that the
decision reached by the third respondent is one that a reasonable
decision maker could not have reached in the
circumstances. I
do not agree with the applicant that the third respondent committed
any gross irregularity in the circumstances,
I do not agree with the
applicant that the third respondent failed to apply his mind
appropriately to the issues, on the contrary
in fact he grappled with
the issues. One may not like the outcome thereof, but that is not the
test for a review.
I
as a judge may not like some of the things he said but that has
nothing to do with the review test. In the circumstances
the
APPLICATION SHOULD FAIL AND THE AWARD
STANDS
. In terms of the costs I am of
the view that the costs should follow the results. Accordingly
the
APPLICATION IS DISMISSED WITH COSTS
.
__________
CELE,
J
Date
of Editing:30 March 2009
Appearances:
For
the Applicant: Adv G Leslie instructed by Cliffe Dekker Hofmeyer
For
the Respondent: Adv T Golden instructed by Delport Ward & Pienaar