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[2009] ZALCD 32
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Top Turf Group (Pty) Ltd v Shezi and Others (D774/05) [2009] ZALCD 32 (19 March 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN DURBAN
CASE
NO: D774/05
In
the matter between:-
TOP
TURF GROUP
(PTY)
LIMITED
APPLICANT
And
LOVEDAY
SHEZI
FIRST
RESPONDENT
DUMISANI
GIFT NHLANGULELA
SECOND RESPONDENT
PATRICK
SANDILE
MZINDILE
THIRD RESPONDENT
COMMISSION
FOR CONCILIATION,
MEDIATION
& ARBITRATION
FOURTH
RESPONDENT
SULLIVAN,
PHILLIP LESTER
nomine
officcii
FIFTH RESPONDENT
TRAFALGAR
PROPERTY MANAGEMENT
(PROPERIETY)
t/a TRAFALGAR POTS
AND
GARDENS
SIXTH RESPONDENT
JUDGMENT
CELE
J
INTRODUCTION
[1]
The application before me is one in terms of
section 145
of the
Labour Relations Act, 66 of 1995
, where the applicant seeks to have
an arbitration award dated 1 November 2005 issued by the fifth
respondent under the auspices
of the fourth respondent reviewed, set
aside and substituted in terms of
section 145
of the Act.
[2]
The first to the third respondents, (hereafter referred to as
employees), opposed the application in their capacity as the
erstwhile employees of the applicant. The arbitration award in
question was issued in their favour.
[3]
On 1 December 2004 the applicant took over the garden business
including the personnel and customers from the sixth respondent
as a
going concern. The employment services of the employees were
accordingly taken over by the applicant. From here
onwards I
will therefore refer to the applicant as being the employer or
anything to do with the employer relating to the applicant
knowing
though that, when the incident in question took place the transfer
had not taken effect. I am mindful of the consequences
of
section 197
of the Act when it comes to the transfer of business as a going
concern.
[4]
On 13 May 2004 a van of the applicant was driven in the vicinity of
Berea and Cleaver Road in Durban. An employee by the
name of
Alfred was operating it as a driver. It carried a number of
other employees of the applicant on its back including
the three
employees before me. In all, they appeared to have been nine in
number. All were clad in the uniform of the
applicant so they
were easily identifiable with their employer. At approximately
9h15 the bakkie came up to where there was
a blue Polo motor vehicle
that had stopped at a red robot. It was driven by a
Mr Potgieter who then proceeded to purchase
a newspaper from a
street vendor. The street vendor seemed to have taken a slow
pace in transacting the sale and in giving
the change. That was to
the point that the red robot turned green, it turned red, it turned
green again and again it turned red,
so there was a bit of some time
when the transaction was taking place.
[5]
Alfred driving the bakkie started blowing the hooter at Mr Potgieter
for the delay that was caused because he could not
drive further as
the Polo was on his way. The version differs and there is a
dispute of facts about which of the two alighted
from which motor
vehicle. The one version being that Alfred alighted, another
being that Potgieter alighted but a fracas
developed between Mr
Potgieter and the occupants of the bakkie.
[6]
There was a lady on the street who was watching what was going on.
She had just left her place and she had come to supervise
the sale of
the junk mail that she was interested in. She is a Miss
Geraldine Thomas. It turns out that in fact Mr
Potgieter had
been purchasing a Mercury. She watched what was going on and
she also then testified at the subsequent arbitration.
The
matter or the incident between the bakkie and the Polo was
subsequently reported to the police by Alfred and his team.
It
also subsequently came to the knowledge of the applicant and nine
employees were subjected to a disciplinary hearing and they
were
dismissed. The three employees before me, for purposes of this
case, referred an unfair dismissal dispute for conciliation
and
arbitration. The fifth respondent was appointed to arbitrate
the dispute.
[7]
He found in favour of the employees as already stated and he ordered
the applicant to re-instate the employees. As a result
of that
finding the applicant was aggrieved and then initiated the present
application,
The
grounds for review
[8]
Mr Jafta for the employees has pointed out that no clear grounds for
review have been traversed or covered in the review application.
The
only apparent review ground that is in the papers before me is framed
in the following manner:
“
The
review of the award is essentially sought on the basis that the fifth
respondent reached various conclusions which have no nexus
in logic
or in fact to the evidence lead”.
I
interpret this for the benefit of the applicant to mean that the
fifth respondent issued an award which is not reasonable.
I
approach it in that manner simply because
Section 145
of the Act has
been suffused by the ground of reasonableness and therefore the
question is whether or not the decision reached
by the fifth
respondent is one that a reasonable decision maker could not have
reached.
[9]
With that in mind I then proceed to look at the chief findings that
were made by the fifth respondent. He found against
Miss Thomas
as a witness. Miss Thomas would normally be ranked as an
independent witness in the sense that she was not
a party to the
applicant’s employer’s team. She was neither a party to
Mr Potgieter. She did not know him.
She therefore
ranked as a neutral person so to speak, but the fifth respondent took
the position that in his view Miss Thomas was
bias in favour of
Mr Potgieter. He expressed this by saying that Miss
Thomas’ comment was that, Mr Potgieter
was only buying a
newspaper, meaning that Alfred was being unreasonable in the
circumstances and ought to have been patient and
to wait for Mr
Potgieter whilst he was being serviced by the street vendor.
[10]
I do not think it is a fair criticism levelled against the fifth
respondent. In my view, when a car is at a robot which regulates
traffic and he jams traffic in the manner that Mr Potgieter did
the natural reaction would have been to say, yes he needs
to buy a
paper but he must be considerate. A person who operates a motor
vehicle on the public road is expected to be considerate
to other
road users. If one were to countenance a behaviour such as this
one there would be chaos in the public roads.
So the behaviour
of Potgieter was really uncalled for. It was reprehensible.
[11]
The reaction of Miss Thomas towards that kind of behaviour was
somewhat strange. In fact I think I understand why
the fifth
respondent commented as he did about her, to say oh! well after all
she is to some extent involved in the sale of newspapers.
He
refers to it as a profession. It is not a profession but really
there is – because she was involved in the sale
of the junk
mail, Mr Potgieter was buying a Mercury, I heard Mr Nel
suggesting that there is a competition between the sale
of the junk
mail and the Mercury. You have here customer who is interested
in buying newpapers in general. She potentially
might want to
buy both of them for that matter. One day she might want to buy
the junk mail but I think that is beside the
issue. Her
reaction was strange in the circumstances.
[12]
He went on to find that Miss Thomas’ memory failed her and
assessed her evidence on those basis and then intended to
reject her
version. It would appear from the minutes of the disciplinary
hearing that Mr Potgieter actually admitted
having come towards
Alfred where Alfred was. I am aware that Mr Potgieter did not
testify at the arbitration hearing which
is a
de
novo
hearing. Preference has however
been made to his evidence. That version regrettably has not been
subjected to scrutiny or to cross examination
and to
further testing in a
de novo
hearing. This is intended to support the version of the employees,
that it is Potgieter who came towards the bakkie and Potgieter
said
so and the employees said the same. It appears therefore that
Miss Thomas lied about that evidence. She may have
lied by
mistake, by confusion of the events or because of the time factor or
whatever consideration but it is clear and therefore
the fifth
respondent has a reason to doubt the veracity of her evidence when it
comes to these events.
[13]
I am approaching the assessment of the evidence in this respect for a
reason. I am mindful of the fact that the concentration
today
was more about a failure to report a wrong doing by the employees to
their employer. What is that wrong doing that
they should have
reported? That then takes me back to why I have approached the
assessment of the evidential material in
this respect. There is
a dispute about who assaulted who if there was an assault.
Again when I revisit the evidence
of Mr Potgieter in the disciplinary
hearing it seemed to be that he really was not assaulted in the sense
of being touched by anybody
because his evidence suggest that
attempts were made to deliver blows towards him but they did not
reach him for some reasons that
seem to suggest that something
stopped those that were advancing towards him from reaching him.
We are talking of nine people
that were in that motor vehicle.
I am mindful of the fact that there were, I think about, two ladies.
Perhaps they
may not have taken part but the rest of these other men,
if they wanted to reach him, if they wanted to assault him one would
have
expected that they would have done so. If Mr Potgieter
says they attempted to but they did not reach him, they did not
succeed in reaching him then what kind of assault was worthy of
reporting to the employer remains the question.
[14]
The chairperson sketches out the scenario of a person who had been
assaulted
vis-á-vis
the version of the employees which was in their
statements namely that they did not commit any assault and they were
invited to
explain who did the assault. In response people might be
quiet to see a person who sees an assault when there was none.
Mr
Potgieter did not testify that he was hit, or physically
assaulted. Even as I say so I am mindful of the fact that
feigning
a blow towards a person may, be described in criminal court
as an assault in that language but I do not understand that to have
been the issue because here the impression was created in the mind of
the chairperson at the disciplinary hearing that Mr Potgieter
was assaulted and secondly that his motor vehicle had been kicked at
and therefore damaged.
[15]
It seems to me that from the manner that the fifth respondent
assessed this evidence he cannot be criticised for rejecting
the
evidence that was lead on behalf of the applicant. It might
well be that there were discrepancies in the evidence of
the
employees but that evidence brought into the arbitration was of a
nature as to justify the fifth respondent in arriving at
the
conclusion which he reached.
[16]
The way that he went about assessing it I would not go so far as
finding that he reached a decision that a reasonable decision
maker
could not have reached.
[17]
The second leg of the inquiry which I am invited to engage in relates
to the question whether or not having found that the
dismissal was
unfair it was appropriate to re-instate the employees. The
evidence of the applicant was that it had newly
taken over this
business. It was entitled to restructure its business as it saw
fit and that being the case the commissioner
should have found that
it was not appropriate to re-instate in the circumstances.
[18]
Section 193
is structured in such a way that where a dismissal is
found to be unfair re-instatement is a default remedy. It is
one that
one firstly thinks of but once one has reached that point
one then begins to think whether it is appropriate to re-instate. If
however an employee does not want to be re-instated the commissioner
or the labour court might not re-instate or if it is not appropriate
in the circumstances, reinstatement will not be ordered.
[19]
Mr Nel has addressed me and as he pointed out that the only evidence
there was in this respect was of the applicant in relation
to the
inappropriateness of re-instatement. It must be remembered that
the presence of the evidence is not conclusive.
Evidential
material must be used by an assessor of facts to arrive at an
appropriate decision. The fifth respondent was seized
with a
situation where he had then to look at this evidence and decide
whether re-instatement was appropriate. He did look
at the
evidence before him. The approach by the applicant is that
re-instatement was not appropriate simply because it had
testified to
that effect.
[20]
A commissioner may find that in the circumstances, re-instatement may
be difficult but not inappropriate because here it is
a question of a
degree. The commissioner may find that it is necessary to
re-instatement and that if the employer has any
difficulties the
employer will act within the precincts of the labour law. For
instance he could then begin to embark on
retrenchment. There
are advantages in following that approach. It might be found
for instance that in selecting criteria
some of the employees that
have been re –instated are entitled to be retained because
there are new ones who have to
be retrenched. It might even be
that there may be people who volunteer to go to early retirement and
therefore there are
so many other considerations that can come into
play. It does not mean that the presence of a difficult to
re-instate necessarily
means that the employees must be compensated
only.
[21]
In this instance I am also not of the view that the decision reached
by the fifth respondent is one that a reasonable decision
maker could
not have reached. I then consider the last aspect, it relates
to the question of costs. I do not think
in the circumstances
it will be fair to award the costs order against the applicant in
this case. In the circumstances therefore:
1.
The application for the review of the arbitration award dated 1
November 2005
issued by the fifth respondent in this matter is
dismissed.
2.
No costs order is made.
_______________
CELE
J
DATE
OF HEARING
:
19
MARCH 2009
DATE
OF JUDGMENT :
19 MARCH
2009
APPEARANCES
FOR
APPLICANT
:
Adv A.J
NEL
Instructed
by
: DEAN
CARO & ASSOCIATES
FOR
RESPONDENT
:
Mr. P.O
JAFTA of JAFTA INC.